Patents / Computer Related Inventions / US Copyright Protection for Software3.3 The “Abstraction, Filtration, Comparison” TestThis approach was developed more fully by the Second Circuit Court of Appeals in the case of Computer Associates International Inc. v. Altai Inc. [29] The court started its analysis by pointing out that since the statute provided that computer programs are to be protected as literary works then, non-literal structures of computer programs must be covered analogously with the position in other literary works. After noting with approval Judge Learned Hand’s decision in the Nichols case mentioned above, and pointing out that “nobody has ever been able to fix that boundary [between an idea and a expression] and nobody ever can” the court went on to propose a three step analysis which has become to be known as the abstraction-filtration-comparison test. In doing this, the court should first try to determine the level of generality at which it can be said that expression of an idea differs from the idea itself. The court noted that this was a standard technique in dealing with plays and other literary works and suggested that in dealing with computer software it would be useful to follow the designer’s steps to try to establish the appropriate level. The court noted that: At the lowest level of abstraction, a computer program may be thought of in its entirety as a set of individual instructions organized into a hierarchy of modules. As a higher level of abstraction, the instructions in the lowest-level modules may be replaced conceptually by the functions of those modules. At progressively higher levels of abstraction, the functions of higher level modules conceptually replace the implantation of those modules ... until finally one is left with nothing but the ultimate function of the program. The court did not indicate at which of these levels it felt the idea-expression boundary was being crossed. However, from the general tenor of the decision as a whole there is an implication that the highest level at which expression might be found is in the organization and structure of hierarchy of modules. The second step in the test is the filtration step; the object of which is to separate out protectable elements of the expression from unprotectable material. Such unprotectable materials include elements dictated by efficiency, elements dictated by external factors, and elements taken from the public domain. Finally the court noted that “the primary object of copyright is not to reward the labor of authors but rather their original contribution. [30] The final test is to compare what remains with the alleged infringement. The abstraction-filtration-comparison test for determining whether there has been infringement in cases other than where there has been direct actual copying [31] has now been endorsed by several appeal courts including: the Fourth [32], Fifth [33], Tenth [34], Eleventh [35] and Federal [36] Circuit Courts of Appeals. [37] In Lotus Development v. Borland,[38] however, the First Circuit doubted its usefulness in cases where the issue was one of literal copying of a literal element of a program. As noted by the Eleventh Circuit, this is not surprising since the test was developed to deal with the problem of non-literal copying of non-literal elements (the court defining literal elements as source code and object code only). [39] In Computermax Inc. v. UCR Inc.,[40] a district court, in Georgia (which is in the Eleventh Circuit), adopted the abstraction-filtration-comparison test to find that there was copyright infringement in copying the plaintiff’s file structures, since these structures were not dictated by outside factors, such as market forces, and were not merely analogous to blank forms, since they collect and organize information entered by the user. The Fifth Circuit first held that only literal copying of elements of a computer program could be considered an infringement, [41] then it simply recognized that non-literal elements of computer programs “such as structure sequence and organization” may be copyrightable, [42] and then applied the abstraction-filtration-comparison test to conclude that copyright protection could in principle exist in input and output formats and used interfaces as long as these formats were not dictated by external requirements. [43] The court found that the expressive nature of such interfaces outweighed their utilitarian function. 3.3.1. “Abstraction” In Harbor Software Inc. v. Applied Systems Inc.,[44] the court in its abstract analysis noted the possible applicability of the case law relating to protection of compilations to the selection and arrangement of modules in a program and that such protection was likely to be “thin”. Page 1 of 43.3 The “Abstraction, Filtration, Comparison” Test10/1/2011http://www.ladas.com/Patents/Computer/SoftwareAndCopyright/Softwa06.html3.3.2 “Filtration” In O.P. Solutions Inc. v. Intellectual Property Network Ltd.,[45] the court listed the filters that must be passed through before reaching the point at which a comparison is made as including: 1) a test for originality, 2) whether there has been a merger of the idea and the expression or the related scenes a faire doctrine applies and 3) whether a public domain exception applies. In Bateman v. Mnemonics,[46] the Eleventh Circuit Court of Appeals held that the district court erred in instructing a jury to filter out only nonliteral similarities in carrying out the filtration stage of the abstraction-filtration-comparison test since the purpose of this stage was to eliminate from consideration all unprotectable elements such as ideas, facts, public domain information, merger material, scenes a faire material and other unprotectable elements of the ... program under consideration. As noted above, in addition to the “abstraction” concept that is derived from traditional copyright law, two other traditional doctrines are now often referred to in computer cases at the “filtration” stage. These are the “merger” doctrine and the “ scenes a faire ” doctrine. Both of these may have the effect of limiting copyright protection in the software area. An example of the application of the former is found in the recent case of Interactive Network Inc. v. NTN Communications Inc.[47] In this case it was held that the idea behind a prediction scheme for an interactive video game
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