EncryptionInnovationTechnology Law / Cyber Law

Merger, Scenes a Faire and Public Domain : Tests of Source Code Comparison

This Article is third in the series on Source Code Comparison. The first article can be accessed here and the second article can be accessed here.

Merger, Scenes A Faire, And Public Domain

As mentioned earlier, this approach takes cue from familiar concepts in copyright law. It is but essential to understand their complicity with a computer software.

Doctrine of MergerWhen there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression.”- Concrete Machinery Co. v. Classic Lawn Ornaments, Inc., F. 2.d, (1st Cir. 1971). One other valid consideration is an element dictated by efficiency. E.g. When specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement.

Scenes a faire, like “merger” has its analogous application to computer programs. The appellate court relies upon the argument that, “in many instances it is virtually impossible to write a program to perform particular functions in a specific computing environment without employing standard techniques.” This is due to the fact that a programmer’s freedom of design choice is often restricted by external conditions such as the mechanical specifications of the computer on which a particular program is intended to run; compatibility requirements of other programs with which a program is designed to operate in conjunction, computer manufacturer’s design standards, inter alia.

Public domain often offers free material which can in no case be appropriated by a single author even though it is included in a copyrighted work. Computer programs are no exception to this rule.

The same set of principles had been applied by the district court while scrutinising OSCAR 3.5s source code. In the words of the court, “there remained virtually no lines of code that were identical to adapter. Only a few of the lists and macros were similar to protected elements in ADAPTER; the other were either in the public domain or dictated by the functional demands of the program.” The exhibited overlap between the list of services required for both ADAPTER and OSCAR 3.5 was “determined by the demands of the operating system and of the applications program to which it was to be linked through ADAPTER or OSCAR.” Regarding the similarities between the organisational charts of the two programs, Judge Pratt refused to grant protection because, “the charts were so simple and obvious to anyone exposed to the operation of the programs.” As interpreted by the appellate court, the manner in which the district court used the word “obvious” was meant to say that they “follow naturally from the work’s theme rather than from the author’s creativity.”

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