Intellectual Property

Copyright Infringement


For there to be copyright infringement, there must be:

  1. a valid copyright
  2. a "copying of constituent elements"
    1. The standard is "substantial similarity."
    2. Access is usually used as evidence of copying.
Substantial Similarity
Abstraction-Filtration-Comparison Test

The Abstraction-Filtration-Comparison test is a test used to determine if the non-literal parts of computer programs are substantially similar. It comprises three steps:

  1. Isolate the abstract elements of the works and identify which are ideas and which are
  2. Filter out the non-protectable elements from the products
  3. Compare the remaining elements

In determining substantial similarity, the intended audience must be considered. If something targets an expert group, it should be tested if it is substantially similar to that group, not to lay people.

Exclusive Right

  1. Reproduce
  2. Derivate work
  3. Distribution
  4. Public performance
  5. Public domain
Damages

For damages, the copyright owner can either get profits or statutory damages. 17 U.S.C. § 504(a).

For profits, you can all profits attributable to the infringement, and the burden of showing actual damages shifts to the infringer. (You get all profit unless the infringer can show just actual damages.) 17 U.S.C. § 504(b).

For statutory damages, you can get $750–$30,000 per work infringed upon. (not per infringement) If willful, it can go up to $150,000. 17 U.S.C. § 504(c).

  • For statutory damages, you have to have registered an unpublished work or published the work and registered it or register within three months of publishing it. 17 U.S.C. § 412.
De Minimis

Copyright infringement is de minimis if the average audience would not recognize the appropriation.