Whelan v. Jaslow , a 1987 case. With few exceptions it is the law of the land on issues of software copyright infringement. Whelan gave judicial recognition to the idea that copyright law may protect the “structure, sequence and organization” of both the source code and the user interface of computer programs. Moreover, Whelan first established a test for separating expression in software, protectible by copyright, from unprotectible ideas. That test holds that the purpose or function of the program is the program’s idea, and everything not necessary to that purpose is part of the expression.
Whelan has generated a great deal of controversy. Some commentators have argued that it is artificial to assume that a software program, no matter how complex, represents a single idea, and everything other than that “idea” is expression. The consequence of such a test, critics argue, is to overextend copyright protection for software.
In Computer Associates International, Inc. v. Altai, Inc . the Second Circuit U.S. Court of Appeals has been asked to reverse a lower court judge’s decision to reject the Whelan standard.
The judge in Altai , sharply criticized the Whelan test as being “inadequate and inaccurate.” The judge relied heavily on a technical report written by Randall Davis, an MIT Professor who was appointed as an independent expert to assist the Court in understanding the technical issues in the case. The judge agreed with Dr.. Davis’ critique that Whelan seeks to identify only one idea in a work, when there may be many ideas involved. The judge noted that each sub-module or sub-sub-module in a software “program” may have at least one idea, and these sub-components of the overall program must be analyzed to separate idea from expression.
The judge further accepted Dr.. Davis’ view that a program consists of both text and behavior. The source and object code is text, or static structure, while the operation of the program, from the user’s point of view, is behavior, or dynamic structure. To speak of protecting “structure” without acknowledging this distinction was viewed as being both ambiguous and technically incorrect.
Most critically, the court concluded that the “behavior” of a program cannot be the subject of copyright protection, since behavior is akin to a “process,” “system” or “method of operation,” all of which are excluded from copyright protection.
Although Altai did not generate much interest when it was issued last August, the fact that the Second Circuit will hear an appeal of the case has attracted a great deal of industry attention. The Software Publishers Association has filed “friend of the court” brief urging the Second Circuit to reverse the lower court’s decision and reaffirm the Whelan standard.
TLB Comment: When Lotus sued Paperback Software and Mosaic Software, claiming that their products infringed the “look and feel” of Lotus 1-2-3, Paperback and Mosaic made exactly the same arguments that Altai made. Judge Keeton rejected them outright.
Had these cases been decided by the judge who decided Altai, the result might have been very different. From the perspective of the Altai case, the operation of a computer program — such as the Lotus menu structure — is “behavior”, in other words a process or system, and therefore not protected by copyright law.
Lotus is presently litigating the same issues against Borland in Boston, before Judge Keeton. If the Second Circuit accepts Altai and rejects Whelan, Borland’s chances of winning at the trial level, or before the First Circuit Court of Appeals, are greatly increased.
Postscript: the Second Circuit did, indeed, affirm the lower court in the Altai case, and that decision has become the leading case in the area of software copyright law. Judge Keeton refused to alter his views based on Altai; however, his view of the law of software copyright infringement was turned on its head when the Lotus/Borland case reached the First Circuit Court of Appeals.