Assignment #10

I. Software -- Work Alike As Infringement

The basic situation I want us to explore is this one:

Firm B sees a software product created by Firm A that is dominant in the desktop market -- a mail reader or schedule application -- that has features B wants to incorporate in an application for handheld devices.  Firm B has already entered the rapidly growing handheld / Windows CE market with a contact management application.  Its plan is to follow this successful beginning with a basic suite of applications.  It is in a hurry because it wants to be well established before A and other software houses doing software for "grown-up" Windows decide it's worthwhile to develop Windows CE versions.

Firm B wants its Windows CE application to have all the functionality that those who are users of Firm A's product would expect, adapted to the environment and interface of the contemporary handheld device.  The source code of Firm A's product is of little or no value to B. Working without access to source code and without consulting former employees of Firm A, B is confident it can build the product it envisions with dispatch and at acceptable cost.

The issues I'd like us to develop are:

• The advice one can give Firm B about how to minimize the risk of copyright infringement liability
• Whether there are particular forms of functional similarity (e.g., file compatibility) that are either particularly risky or particularly safe
• The litigation steps and risks of such a claim by Firm A should it materialize

II. Readings

• Assigned
  • Cases:
    • Those who have not read the following two cases in a prior course should read:
      • Computer Assoc. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) LEXIS | WESTLAW
      • Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) LEXIS | WESTLAW (affirmed per curiam by an equally divided Supreme Court)
    • Those who have already read Altai and Lotus v. Borland should read two of the following decisions:
      • Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994), supplemental opinion, 46 F.3d 408 (5th Cir. 1995) LEXIS | WESTLAW
      • The Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823 (10th Cir. 1993) LEXIS | WESTLAW
      • Mitek Holdings, Inc. v. Arce Engineering Co., 89 F.3d 1548 (11th Cir. 1996) LEXIS | WESTLAW
      • Control Data Systems, Inc. v. Infoware, Inc., 903 F. Supp. 1316 (D. Minn. 1995) LEXIS | WESTLAW
  • Commentary (read at least one of the following):
    • Raymond T. Nimmer & Patricia Ann Krauthaus, Software Copyright Sliding Scales and Abstracted Expression, 32 Hous. L. Rev. 317 (1995)
    • Pamela Samuelson, Randall Davis, Mitchell D. Kapor, & R.H. Reichman, A Manifesto Concerning the Legal Protection of Computer Programs, 94 Colum L. Rev. 2308 (1994)
    • Jane C. Ginsburg, Four Reasons and a Paradox: The Manifest Superiority of Copyright Over Sui Generis Protection of Computer Software, 94 Colum. L. Rev. 2559 (1994)

III. How We'll Proceed

I'll begin discussion on this assignment in the Webboard conference on Jan. 26 and continue it through the weekend of Jan. 30 - Jan. 31. Our video conference class concluding this set of issues will be Tuesday, Feb. 2.