In December 2014, Cisco Systems, Inc. sued rival ethernet switch provider Arista Networks, Inc., for more than $300 million because it allegedly infringed Cisco’s copyrights in operating system software that manages Cisco switches. Curiously, Cisco did not claim that Arista infringed the copyright in the software’s source code, which many understand to be the subject of computer program copyright. Rather, Cisco claimed that Arista infringed portions of the user interface of the software –specifically by copying more than 500 multiword command expressions.

Copyright may extend to these “command line interfaces” by virtue of a feature of copyright law that has gained more attention in recent years. Known as the “non-literal elements” of a computer program, copyright protection can extend to not only the “literal elements” of a program’s source code or object code, but to the nontextual expression of the code such as user interfaces and the sequence, structure and organization of the program. To help the software industry grapple with this nuanced and abstract concept, BakerHostetler has created the Beyond Source Code web resource. Beyond Source Code digests the cases addressing protection of non-literal elements of computer programs. It organizes the decisions by whether they extended or rejected such protection, and includes a section identifying cases based on the type of non-literal element at issue.

Cisco’s copyright case went to trial against Arista in late 2016. The jury found that although Arista had in fact infringed Cisco’s command line interface, Arista’s infringement was excused by virtue of the “scènes à faire” defense. This defense was developed in the context of novels and plays, and is meant to prevent copyright owners from claiming ownership over stock character or plot elements in a fashion that would stifle, rather than promote, creativity. In the computer program context, this doctrine is interpreted as applying to computer coding decisions that are driven by external factors such as the mechanical specifications of hardware or widely accepted programming practices. Cisco sought to overturn the jury verdict in a subsequent motion for judgment as a matter of law, arguing that there was insufficient evidence to support the jury’s finding that the command line interfaces were driven by external factors such as industry standards or mechanical specifications. The trial court rejected Cisco’s motion, and Cisco has appealed the case to the Federal Circuit (the appeal was taken to the Federal Circuit because the litigation initially involved some patent claims, over which the Federal Circuit has exclusive jurisdiction).

The Cisco/Arista dispute may sound narrow and the fight over the jury’s defense verdict even more so. But the appeal has garnered the attention of the following 15 amici curiae who have characterized the case as “exceptionally important” and have filed, in various configurations, six separate briefs: MathWorks, Inc.; SAS Institute, Inc.; Adobe Systems, Inc.; Synopsys, Inc.; Oracle Corp.; Symantec, Inc.; Public Knowledge; Pamela Samuelson; Electronic Frontier Foundation; GitHub; Mozilla; Engine Advocacy; Software Freedom Conservancy; Computer & Communications Industry Association; and the American Antitrust Institute. The appeal has developed into something of a proxy war in which these various software industry players and commentators are battling with their philosophical champions.

The amici curiae are largely fighting over a tension that is baked into the very language of the Copyright Act. On the one hand,  §102(b) of the Copyright Act provides that “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” On the other hand, the Copyright Act expressly protects computer programs, which are defined in §101 as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Determining how to draw the line between protecting a computer program that by its very nature involves functionality without extending patent-like protection to ideas and methods of operations is a perennial problem in computer software copyright cases.

Courts have at least two tools to help resolve this “idea/expression dichotomy”:

  • The “merger doctrine,” in which copyright will not protect a work in which there are a limited number of ways to express an idea; and,
  • Scènes à faire, which prohibits copyright protection for stock or standard elements.

The two doctrines are related but distinct. However, the overlap is so pronounced that both doctrines are at issue in the Cisco appeal, with Cisco and its amici claiming that merger doctrine issues improperly infected the district court’s scènes à faire analysis. What might be a narrow appeal on narrow issues has evolved into a swirl of issues, including:

  • Whether functionality considerations should inform the scènes à faire analysis.
  • Whether customer demand should inform the scènes à faire analysis.
  • Whether copyright protection should extend at all to non-literal elements that impact functionality needed for interoperability between systems.
  • Whether a source code’s registration with the Copyright Office covers user interfaces.
  • Whether an expression can lose copyright protection if it becomes adopted as a standard over time.
  • Whether the expectations of the industry as reflected in standards-setting bodies should impact the scènes à faire analysis.
  • Whether the Federal Circuit should reconsider its earlier ruling in Oracle v. Google regarding merger analysis in light of recent 9th Circuit precedent.

It is perhaps no surprise that each party and their related amici accuse the other of stifling innovation, either by failing to protect innovation through copyright law, or by overextending the reach of copyright law. The Federal Circuit may ultimately decide the Cisco appeal on narrow grounds. However, the increase in high-stakes computer software copyright litigation, together with the considerable interest of amici, suggest this is a case worth following.