The Act of Copying Is Necessary But Not Sufficient for Proving Copyright Infringement

    Robert Wolfe

    On July 11, 2014, in the matter of Paycom Payroll, LLC v. Richison, the Tenth Circuit Court of Appeals vacated the order of the U.S. District Court for the Western District of Oklahoma adopting a special master’s report finding that the defendant had created infringing copies of the plaintiff’s software. The parties have since settled.

    The Tenth Circuit agreed with Richison’s argument that the special master had failed to perform an adequate analysis in support of his conclusion that copyright infringement had occurred. In particular, the court found that the special master erred in concluding that it was not necessary to conduct an “Abstraction-Filtration-Comparison” test because he was able to establish that the defendant had copied source code verbatim from the plaintiff’s software program. The Tenth Circuit held that the special master’s analysis was flawed due to the “misconception that an infringement analysis begins and ends with ‘copying in fact.’”

    As the court explained, a finding of infringement also requires a showing that the copied code is, in fact, protected by copyright. Only by applying the Abstraction-Filtration-Comparison test “conscientiously and systematically” can one first separate unprotectable ideas from protected expression (in the “abstraction” step) and filter from the copyrighted work any elements that are ineligible for copyright protection, such as material that exists in the public domain, or is otherwise considered insufficiently original due to the merger and scenes a faire doctrines (in the “filtration” step).

    Furthermore, the Tenth Circuit emphasized that, in cases where the allegation of infringement is “broad” and not limited to a “discrete, easily-conceptualized portion” of the allegedly infringed work, the “filtration” step of the AFC test cannot be undertaken without having first performed the “abstraction” step.

    As software copyright infringement claims are typically directed to the copyrighted work as a whole, the Tenth Circuit’s holding in Richison highlights the importance of retaining an expert possessing experience in performing the Abstraction-Filtration-Comparison test and a current understanding of developments in the field of copyright infringement law. DisputeSoft’s experts offer both the experience and understanding needed to effectively assist counsel in resolving claims of copyright infringement of computer software code.

    Read the Tenth Circuit’s full decision

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