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Whelan had developed software for Jaslow to manage the operations of a dental laboratory, and later took it to market under the trade name ''Dentalab''.
Jaslow was engaged in selling the ''Dentalab'' software.{{sfn|Kappel|1991|p=704}}
He formed a company named Dentcom and wrote a program in a different computer language but with similar functionality that he called ''Dentlab'', marketing it as a ''Dentalab'' successor. OnWhelan 30filed Junea 1983suit Jaslow'sin Dentcomfederal filedcourt ain suitPennsylvania alleging that the ''Dentlab'' software violated Whelan's hadcopyrights misappropriatedin itsthe trade''Dentalab'' secretssoftware.
Whelan filed a countersuit in federal court in Pennsylvania alleging that the ''Dentlab'' software violated Whelan's copyrights in the ''Dentalab'' software.
Whelan won the case and was awarded damages on the basis that ''Dentlab'' had substantially similar structure and overall organization.{{sfn|Graham|1999|p=89}}
The district court ruling in the Whelan case drew on the established doctrine that even when the component parts of a work cannot be copyrightable, the structure and organization of a work may be.{{sfn|Hamilton|Sabety|1997|p=241}}
The court in the Whelan casealso drew support from the 1985 SAS Inst. Inc. v. S&H Computer Sys. Inc. in which it had been found that copyright protected organizational and structural details, not just specific lines of code.{{sfn|Epstein|2006|p=11-27}}
Sequence, structure and organization (SSO) in this case was defined as "the manner in which the program operates, controls and regulates the computer in receiving, assembling, calculating, retaining, correlating, and producing useful information."{{sfn|Kappel|1991|p=699}}
SSO refers to non-literal elements of computer programs that include "data input formats, file structures, design, organization and flow of the code, screen outputs or user interfaces, and the flow and sequencing of the screens."{{sfn|Scott|2006|p=5-56}}
The district court ruled that ''Dentlab'' was substantially similar to ''Dentalab'' because its structure and overall organization were substantially similar.{{sfn|Hamilton|Sabety|1997|p=250}}
Jaslow appealed the decision.
In evaluating the appeal, theThe Court of Appeals for the Third Circuit rejected the "extrinsic-intrinsic" testnoted that hadcomputer commonly been used until then, where an expert and a lay observerprograms are asked to independently determine whether theliterary works areunder substantiallyU.S. similarlaw.{{sfn|GrahamHansen|19992006|p=90170}}
The court reasoned that with literary works a non-literal element such as the plot of a novel is protected to the extent that it is an expression of an idea rather than the idea itself. By analogy, the purpose or function of a software work would be the work's "idea", while everything not necessary to that purpose or function would be part of the expression of the idea. The expression would be protected, but the basic purpose or function would not.{{sfn|Kappel|1991|p=704}}
On this basis the Court of Appeals upheld the district court's ruling of copyright violation due to similarity of SSO.{{sfn|Graham|1999|p=91}}
The court found that the [[Copyright Act of 1976]] supported its view of a software work as a compilation{{#tag:ref
|In U.S. copyright law a "compilation" is defined as a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.{{sfn|Scott|2006|p=5-55}}
|group=fn}}, saying:{{sfn|Scott|2006|p=5-55}}
{{blockquote|Although the Code does not use the terms "sequence," "order," or "structure," it is clear from the definition of compilations and derivative works, and the protection afforded them, that Congress was aware of the fact that the sequencing and ordering of materials could be copyrighted, i.e. that the sequence and order could be parts of the expression, not the idea, of a work.}}
The Whelan decision initiated a period of excessively tight protection, suppressing innovation, since almost everything other than the broad purpose of a software work would be protected. The only exception was where the functionality could only be achieved in a very small number of ways. ▼The court noted that computer programs are literary works under U.S. law.{{sfn|Hansen|2006|p=170}}
The court drew an analogy with a concept defined by Judge [[Learned Hand]] who noted, talking about a play, that the exact wording was certainly protected, and then there were a series of layers of increasing abstraction before the high-level plot outline is reached, which is not protected. An ad hoc judgement based on careful comparison of the works would be needed to determine where in this spectrum any alleged copying lay, and to decide whether it was at a sufficiently specific level to be a violation rather than a different expression of the same idea. But "careful comparison" in the case of software works might involve checking millions of lines of code.{{sfn|Mnookin|2010|p=158}}
▲The Whelan decision initiated a period of excessively tight protection, suppressing innovation, since almost everything other than the broad purpose of a software work would be protected.
The only exception was where the functionality could only be achieved in a very small number of ways.
In these cases there could be no protection due to the [[Merger doctrine (copyright law)|merger doctrine]], which applies when the expression and the idea are inextricably merged.{{sfn|Abramson|2001|p=57}}
==Early adoption and criticism==
MostFor courtsthe camenext tofew adoptyears most, but not all, circuit courts accepted the SSOWhelan conceptdecision on SSO in one form or another, but not all.{{sfn|Kappel|1991|p=705}}
In one case a court found that a defendant had infringed the right to prepare a derivative work when they copied the sequence, structure, and organization of the plaintiff's file formats, screen, reports, and transaction codes, even though different data fields were present.{{sfn|Stapleton|2002|p=9.6}}
In 1987 the ruling in Broderbund Software, Inc v. Unison World, Inc appeared to prevent software developers from marketing products with the same or similar user interfaces, regardless of whether there was anything in common in the underlying code.{{sfn|Kappel|1991|p=705}}
==References==
;Notes
{{reflist |group="fn"}}
;Citations
{{reflist |colwidth=30em}}
|date=May 3 2012 |year=2012
|accessdate=2012-05-30}}
*{{cite book |ref=harv |url=http://books.google.ca/books?id=-qwPsrucho8C&pg=PA158
|title=Bargaining with the Devil: When to Negotiate, When to Fight
|first=Robert |last=Mnookin
|publisher=Simon and Schuster |year=2010 |ISBN=1416583327}}
*{{cite web |ref=harv
|url=http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2012/05/07/jury-says-google-infringed-but-it-can-t-agree-on-fair-use.aspx
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