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{{Intellectual property}}
'''Structure, sequence and organization''' (SSO) is a term used in the United States to define a basis for comparing one software work to another in order to determine if copying has occurred that infringes on copyright, even when the second work is not a literal copy of the first.
The term was introduced in the case of ''Whelan v. Jaslow'' in 1986.{{sfn|Kappel|1991|p=699}}
The method of comparing the SSO of two software products has since evolved in attempts to avoid the extremes of over-protection and under-protection, both of which discourage innovation.{{sfn|Abramson|2001|p=57}}
More recently, the concept has been used in a major case brought against [[Google]] by [[Oracle]].{{sfn|Lee|2012}}
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==Whelan v. Jaslow==
{{main|Whelan v. Jaslow}}
''Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc.'' was a landmark case in defining principles that applied to copyright of computer software.{{sfn|Graham|1999|p=88}}
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 became engaged in selling the ''Dentalab'' software.{{sfn|Kappel|1991|p=704}}
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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 court also 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 source or object code.{{#tag:ref
|Software is written in [[source code]], a collection of instructions written in a human-readable programming language. With many languages this is translated by a compiler into [[object code]], where the instructions are in a form that the computer can execute. Source code copying may be crudely disguised by changing the names of procedures and variables. This form of disguise will be immediately visible when the object code is compared, since the object code will be the same.
|group=fn}}{{sfn|Epstein|2006|p=11-27}}
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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 ''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==
For the next few years most, but not all, circuit courts accepted the ''Whelan'' decision on SSO in one form or another.{{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 1986 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}}
In the 1990 case of ''Lotus v. Paperback'' the U.S. District Court for Massachusetts decided that Paperback's VP-Planner software violated the copyright of Lotus's 1-2-3 spreadsheet program since it had the same user interface, even though the underlying code was completely different.{{sfn|Davidson|1997|p=115}}
A technical criticism of ''Whelan'' is that it fails to distinguish between the sequence in which instructions are presented in the text of a program and the sequence in which the instructions are executed - the program's behavior. Both the textual and behavioral aspects have their own SSO, but a programmer would see the textual SSO as relatively unimportant.{{sfn|Galler|1995|p=87}}
A related point is that although the text of a computer program may be an "original work of authorship", protected by copyright laws. the algorithms and designs that the program embodies may be better considered to be "processes, procedures, systems, methods of operation", which are explicitly excluded from copyright protection although they may be protectable by patents.{{sfn|Hansen|2006|p=196}}
The distinction between the code's SSO, which is protected by copyright, and the protocol or algorithm, which is patentable, is however extremely difficult to maintain.{{sfn|Granstrand|2003|p=407}}
The ''Whelan'' ruling has been criticized as being "dangerously broad".
By saying that the purpose of the program was to assist a Dental lab operation, and that anything not essential to that purpose was an expression,
it left open a wide range of functions that could be deemed "not essential" and therefore subject to protection.{{sfn|Kappel|1991|p=708}}
In the 1988 ''Healthcare Affiliated Services, Inc. v. Lippany'' the court took a position more in line with the idea-expression merger concept, saying that the defendent's choice of scope, variables to be used and other aspects of what its software would do did not constitute the SSO.{{sfn|Scott|2006|p=5-57}}
In 1987 the Court of Appeals for the Fifth Circuit rejected the extension of copyright protection to the non-literal elements of computer programs in
the case of ''Plains Cotton Cooperative Ass'n v. Goodpasture Computer Serv''.
The court held that input formats were idea rather than expression and refused to extend protection to these formats.
The court said: "We decline to embrace ''Whelan''."{{sfn|Kappel|1991|p=705}}
==Computer Associates v. Altai==
{{main|Computer Associates Int. Inc. v. Altai Inc.}}
In ''[[Computer Associates Int. Inc. v. Altai Inc.]]'' in 1992 the Second Circuit Court of Appeals agreed with the conclusion in ''Whelan'' that the structure, sequence and organization of a program might by protected by copyright where appropriate.{{sfn|Takeyama|Gordon|Towse|2005|p=11}}
However, the court went on to say, "As we have already noted, a computer program's ultimate function or purpose is the composite result of interacting subroutines. Since each Subroutine is itself a program, and thus, may be said to have its own 'idea,' Whelan's general formulation that a program's overall Purpose equates with the program's idea is descriptively inadequate."{{sfn|Hamilton|Sabety|1997|p=250}}
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In the comparison step the court decides whether there is enough similarity between the remaining elements to constitute infringement, and if so the severity of the infringement.{{sfn|Abramson|2001|pp=49-50}}
One effect of the ''Altai'' case may have been that companies that thought they were protected under ''Whelan'', and had therefore not filed patent applications, now found themselves exposed.{{sfn|Graham|1999|p=92}}
The ''Altai'' case may have gone too far, in effect removing protection from all but the literal elements of a program and thus leading to underprotection.
Aware of this risk, many courts that followed the ''Altai'' ruling seem to have in practice performed less filtration than was required by the test.{{sfn|Abramson|2001|p=57}}
However, most circuits have accepted ''Altai'' in preference to ''Whelan''.{{sfn|Epstein|2006|p=11-26}}
==Later decisions==
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He also asked for both sides to comment on a ruling by the [[European Court of Justice]] in a similar case that found "Neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression. Accordingly, they do not enjoy copyright protection."{{sfn|King|Farber|2012}}
On 31 May 2012 the judge ruled that "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API."{{sfn|Mullin|2012}}
In reviewing the ''[[Oracle v. Google]]'' case history, the court noted:{{blockquote|...the above summary of the development of the law reveals a trajectory in which enthusiasm for protection of "structure, sequence and organization" peaked in the 1980s, most notably in the Third Circuit’s ''Whelan'' decision. That phrase has not been re-used by the Ninth Circuit since ''Johnson Controls'' in 1989, a decision affirming preliminary injunction. Since then, the trend of the copyright decisions has been more cautious. This trend has been driven by fidelity to Section 102(b) and recognition of the danger of conferring a monopoly by copyright over what Congress expressly warned should be conferred only by patent. This is not to say that infringement of the structure, sequence and organization is a dead letter. To the contrary, it is not a dead letter. It is to say that the ''Whelan'' approach has given way
to the ''Computer Associates'' approach, including in our own circuit. See ''[[Sega Enters., Ltd. v. Accolade, Inc.]]'', 977 F.2d 1510, 1525 (9th Cir. 1992); ''[[Apple Computer, Inc. v. Microsoft Corp.]]'', 35 F.3d 1435, 1445 (9th Cir. 1994).{{sfn|Alsup|2012}}}}
==References==
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|publisher=Boston University
|accessdate=2012-05-31}}
*{{cite web |ref=harv |url=http://www.groklaw.net/pdf3/OraGoogle-1202.pdf
|title=ORACLE AMERICA, INC., Plaintiff, v. GOOGLE INC., Defendant. ORDER GRANTING MOTION FOR JUDGMENT AS A MATTER OF LAW ON DECOMPILED FILES
|publisher=U.S. District Court for the Northern District of California
|first=William |last=Alsup
|date=May 11, 2012 |year=2012
|accessdate=2012-06-02}}
*{{cite book |ref=harv |url=http://books.google.ca/books?id=pUfFpzC3ks4C&pg=PA115
|title=Intellectual Property for the Internet
| |||