Sequence, structure and organization (SSO) is a term used in the United States to define a way in which one software work may violate the copyright held in another software work even though the two are not exact copies. The term was introduced in the case of Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. in 1986.[1] More recently, the concept has been brought up in a major case brought against Google by Oracle.[2]
Origins
In the Whelan v. Jaslow case, Whelan had developed software to manage the operations of a dental laboratory, and later took it to market under the trade name Dentalab. Jaslow wrote a program in a different computer language but with similar functionality that he called Dentcom, and marketed it as a Dentalab successor. Whelan sued Jaslow for copyright infringement.[3] In this case SSO 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."[1] The 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.[4] The district court ruled that Dentcom was substantially similar to Dentalab because its structure and overall organization were substantially similar.[5]
The Court of Appeals for the Third Circuit 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.[3] In another 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.[6] Also 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 were anything in common in the underlying code.[7]
Criticism
Most courts came to adopt the SSO concept in one form or another, but not all. 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."[7] In Computer Associates International, Inc. v. Altai, Inc. in 1992 the Second Circuit found that program structure was worthy of protection, but went on to say:[5]
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.
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.[8] Part of the difficulty dates back to the statement by Judge Learned Hand who noted, talking specifically about a play, that the exact words were 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 an alleged copy lay, and thus whether it was a violation. But "careful comparison" in the case of software works might involve checking millions of lines of code.[9]
See also
References
- Citations
- ^ a b Kappel 1991, p. 699.
- ^ Lee 2012.
- ^ a b Kappel 1991, p. 704.
- ^ Hamilton & Sabety 1997, p. 241.
- ^ a b Hamilton & Sabety 1997, p. 250.
- ^ Stapleton 2002, p. 9.6.
- ^ a b Kappel 1991, p. 705.
- ^ Kappel 1991, p. 708.
- ^ Mnookin 2010, p. 158.
- Sources
- Hamilton, Marci A.; Sabety, Ted (Winter 1997). "COMPUTER SCIENCE CONCEPTS IN COPYRIGHT CASES: THE PATH TO A COHERENT LAW" (PDF). Harvard Journal of Law & Technology. 10 (2). Retrieved 2012-05-30.
{{cite journal}}: Invalid|ref=harv(help)CS1 maint: date and year (link) - Kappel, Cary S. (1-1-1991). "Copyright Protection of SSO: Replete with Internal Deficiencies and Practical Dangers". Fordham Law Review. 59 (4). Retrieved 2012-05-30.
{{cite journal}}: Check date values in:|date=(help); Invalid|ref=harv(help)CS1 maint: date and year (link) - Lee, Timothy B. (May 3 2012). "Oracle v. Google judge asks for comment on EU court ruling". Ars Technica. Retrieved 2012-05-30.
{{cite web}}: Check date values in:|date=(help); Invalid|ref=harv(help)CS1 maint: date and year (link) - Mnookin, Robert (2010). Bargaining with the Devil: When to Negotiate, When to Fight. Simon and Schuster. ISBN 1416583327.
{{cite book}}: Invalid|ref=harv(help) - Stapleton, Laura Lee (2002). E-Copyright Law Handbook. Aspen Publishers Online. ISBN 0735529442.
{{cite book}}: Invalid|ref=harv(help)