While many different intellectual property laws can be utilized to protect software and its code, most practitioners rely on copyright law because it is often the most cost-effective means of protection as coders can submit newer versions or updates of their code to the U.S. Copyright Office as necessary. Relying on copyright law, ZeniMax, a company that creates and produces interactive entertainment for multiple media devices, has filed a $2 billion lawsuit against Facebook. ZeniMax’s lawsuit takes aim at Facebook’s 2014 acquisition of Oculus VR, the company behind the Oculus Rift and other virtual reality devices. In its claims of copyright infringement, ZeniMax alleges that core technology used by Oculus, now powering Facebook-related products, was created by John Carmack during his employment at ZeniMax. Carmack is now the chief technology officer of Oculus VR.

In their response, Carmack claims that the technology in question was created by Oculus founder Palmer Luckey, effectively alleging that none of the technology in question was ever created at ZeniMax. Such a defense, however, does not automatically clear Facebook and Oculus of any wrongdoing. As practitioners know, claims of software copyright infringement do not require that the copyrighted code be identical in every line. This follows other basic intellectual property law tenets that do not require exact replication in order to find infringement. For example, in patent law, patents do not have to be wholly similar for courts to hold in favor of the plaintiff.

Thus, putting such complex questions to a jury can be difficult, as juries may not understand (as programmers do) that it is not uncommon for programmers to write strikingly similar code for a variety of reasons. For example, two programmers learning to code from same university or spending comparable time at the same employer may often result in parallel lines of coding.

In response, courts have established a well-known test to determine whether mere similarities between coding cross the threshold required to constitute infringement. This test, known as the “Abstraction-Filtration-Comparison” test, resulted from a holding in Computer Associates Int., Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).

The Abstraction-Filtration-Comparison test has several steps. The first step examines whether the software is merely an idea or if there has truly been successful expression of that idea. For example, one programmer may have had the idea for a specific program, but another programmer may beat him to the successful manifestation (i.e., coding of that program) of that idea.

The next stage of the test distinguishes between what code is copyrightable and what code is not. For instance, if the specific code under examination is determined to be too universal or fundamental, then the code in question may be considered not registerable simply because the code has become too universal to merit protection.

After that step, the court then focuses on whatever code is left. Again, for the analysis, the remaining code does not have to be identical for courts to find infringement. In fact, some plaintiffs have successfully won on claims of infringement, even when the defendant could show that the code was written completely anew, by relying on other relevant factors (e.g., nearly overlapping periods of employment, memos, etc.) to bolster their claims of infringement.

Overall, practitioners must advise their clients that claims of copyright infringement do not simply hinge of whether the code is “new,” instead courts will also look to a myriad of factors, such as the Abstraction-Filtration-Comparison test or periods of employment, to determine whether the claim of infringement has any merit.

For more information on this topic, please visit our Software-Related Services service page, which is part of our Software & Copyrights Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the software law firm and its software attorneys may be found at www.klemchuk.com.

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