Menu
4. Abstraction-filtration-comparison test
|
The expression/idea distinction was refined in Whelan Associates, Inc. v. Jaslow Dental Lab., Inc.:
"The line between idea and expression may be drawn with reference to the end sought to be achieved by the work in question. In other words, the purpose or function of a utilitarian work would be the work's idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea. . . . Where there are various means of achieving the desired purpose, then the particular means chosen is not necessary to the purpose; hence, there is expression, not idea." (Whelan Associates, Inc. v. Jaslow Dental Lab., Inc. (1986) 797 F.2d 1222, 1229 [230 U.S.P.Q. (BNA) 481].) The Altai court rejected Whelan's distinction as more "metaphysical" than "practical." (Computer Associates International v. Altai, supra, 982 F.2d 693 at 706.) Instead, Altai devised the three-step Abstraction-Filtration-Comparison test: "In ascertaining substantial similarity [between two or more programs] under this approach, a court would first break down the allegedly infringed program into its constituent structural parts. Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material. Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court's last step would be to compare this material with the structure of an allegedly infringing program. The result of this comparison will determine whether the protectable elements of the programs at issue are substantially similar so as to warrant a finding of infringement." (Ibid.) The Abstraction-Filtration-Comparison test has been "endorsed" by the Ninth Circuit and other circuits: "In our view, in light of the essentially utilitarian nature of computer programs, the Second Circuit’s approach is an appropriate one." (Sega Enterprises. Ltd. v. Accolade, Inc. (1992) 977 F.2d 1510, 1525.) As the appellate court pointed out, the abstraction-filtration-comparison test is applied only when the copyright holder alleges infringement of non-literal elements. In a footnote, the court cited Mitel: "[A]dmitted literal copying of a discrete, easily-conceptualized portion of a work [does not necessitate] a complete abstraction-filtration-comparison analysis." (Mitel, Inc. v. Iqtel, Inc., supra, 124 F.3d at 1372-73.) Instead, the court applies standard copyright principles only to the filtration stage of the analysis. (Ibid.) 5. Short phrases |