Software developers have long been able to secure copyright registrations to help protect and enhance the value of their work product. However, when the copyright holder claims someone else is copying their work, there is almost always a question of whether the accused software copies the aspects of the copyrighted work that actually qualifies for copyright protection. The reason being that copyright law does not protect the ideas and processes in a developer's code. It only protects those portions of the code that qualify as an "expression" of those ideas.
To address this issue in infringement disputes, multiple circuit courts, including the Second, Fifth and Tenth circuits, have adopted the use of the "abstraction-filtration-comparison test." Under this three-part test, the court first separates the alleged infringing program into its constituent structural parts -- i.e., abstraction. The purpose of this step is to help separate the ideas and process of a program from the developer's expression of those ideas and processes. Next, the court conducts the filtration step by sifting out all of the non-protectable material and defining the scope of the plaintiff's copyright protection in the source code. Finally, after that scope is defined, the trier of fact performs the comparison step by performing the customary infringement analysis by determining whether the defendant's program is substantially similar to the protectable aspects of the plaintiff's program.
A recent decision from the Federal Circuit, however, highlights the importance of understanding what aspects of your application are protectable because proof of copyright registration, standing alone, may not be sufficient to establish your burden of proof to get to trial. SAS Institute, Inc. is the creator and owner of a suite of software applications used for data analysis and management, which it protects through various copyright registrations. In 2018, SAS Institute, Inc. filed suit against one of its competitors, World Programming, Ltd., alleging World Programming's software applications infringes SAS's copyrights. Yet, SAS never got the opportunity to present its claims to the jury because the trial court determined, as a matter of law, that SAS failed to meet its burden of establishing that the aspects of its software applications at issue were, in fact, protectable.
Prior to trial, the trial court held what it called a "Copyrightable Hearing" wherein each side presented expert testimony supporting its arguments regarding the scope of SAS's copyrights. At the conclusion of that hearing, the court held that SAS met its initial burden of demonstrating it had a valid copyright registration and the defendant had engaged in copying. But that did not end the analysis. The trial court then shifted the burden to World Programming to provide evidence that the copied material at issue is not protectable. Which it did. The burden then shifted back to SAS to establish precisely which parts of its asserted work is actually protectable - i.e., filtration.
SAS's fatal mistake, as the trial court explained, was that it refused to participate in the filtration step; instead, it simply argued that its program was "creative." The Federal Circuit agreed with the trial court's burden-shifting approach and affirmed that SAS's failure to provide any evidence in relation to the filtration step was a sufficient basis for the trial court to conclude, as a matter of law, that SAS had failed to meet its burden of protectability. And if there is no protectable material at issue, then there is nothing to compare to support an infringement claim. The claims were then dismissed.
The key takeaway is that you can further protect your source code and applications through copyright protection, but to maximize that protection, you also need to have an understanding of the scope of that protection.
We hold that where the court has received persuasive evidence that the asserted elements are copyright unprotectable, SAS, as the copyright holder, was obligated to identify with specificity the elements of the SAS program that it asserts as copied and to establish that those elements fall within the scope of protection extended to such elements under copyright law.
