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34 Suffolk U. L. Rev. 415 (2000-2001)
Abstration, Filtration, Comparison: The Difficult Task of Defining and Applying an Appropriate Substantial Similarity Test for Computer Software

handle is hein.journals/sufflr34 and id is 423 raw text is: Abstraction, Filtration, Comparison: The Difficult Task of
Defining and Applying an Appropriate Substantial Similarity
Test For Computer Software
[A]s the heavens and the earth belong to [od], because they are the work of
his word ... [] the author of a book is its complete master, and as such can
dispose of it as he chooses.'
At the heart of copyright law is a policy for protecting a work's creative and
expressive content from misappropriation by persons other than the creator.2 In
many types of works, such as fictional books and movies, songs, poems, and
artwork, determining the protectible aspects is relatively simple, as nearly the
entire work is creative and thus protectible expression.3            In  these cases,
determining whether a new, similar work infringes the copyright protection of
an existing work requires only that the existing work be the subject of a valid
copyright and that the works be similar.4 Many other types of copyrightable
works, however, such as non-fictional works, require a more intricate inquiry
because they contain other unprotectible elements such as pure fact, idea, and
functional elements. In these cases, the copyright protects the literal expression
of the work, but courts face the difficult question of determining the extent to
which the non-literal elements are protectible. In the past, courts had upheld
non-literal infringement cases involving literary works other than computer
software, subjecting such claims to analysis under doctrines such as merger and
scenes-a-faire which prevent copyright protection from extending into
unprotectible ideas or functions.5
1. Stephen Breyer, The Uneasy case for Copyright: A Study of Copyright in Books, Photocopies, and
Computer Programs, 84 HARv. L. REV. 281, 284 (1970) (quoting Marion, noted sixteenth century French
lawyer, reprinted in Dock 78).
2. Dennis S. Karjala, Copyright Protection of Computer Program Structure, 64 BROOK. L. REV. 519,
533-34 (1998) (noting copyright policy to protect author's creative expression); Julian Velasco, The
Copyrightability of Non-Literal Elements of Computer Programs, 94 COLUM. L. REv. 242 (1994) (citing
protection of author creativity as policy behind copyright scheme); see also infra notes 16-20 and
accompanying text (discussing policies behind copyright protection).
3. Karjala, supra note 2, at 533 (noting breadth of copyright protection in literary fictions).
4. Infra notes 19-106 and accompanying text (discussing basic infringement elements).
5. Andrew G. Isztwan, Computer Associates International v. Altai, Inc.: Protecting the Structure of
Computer Software in the Second Circuit, 59 BROOK. L. REv. 423, 424 (1993) (noting traditional allowance of
non-literal infringement claims); see also infra notes 65-67 and accompanying text (discussing validity of non-
literal infringement claims).

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