Strategies for Litigating Computer Software Copyright Claims
Fall 2007

If a client came to you and told you that his novel had been stolen and published under the name of another person, the path to litigating your case would be fairly evident. You would take your client’s book, along with any drafts, notes, or other evidence of when she wrote it and compare it to the book published by the alleged thief. You would look for line-by-line copying and for copying of the narrative themes and characters. If the book was published in another language, you would hire a translator to compare your client’s version to the published work to find any similarities indicating copying. Your lifelong familiarity with printed fiction as well as nonfiction would make litigating the case straightforward for you and for the jury.

Computer software is a different matter altogether. Although governed by the same provisions in the Copyright Act as other literary works, copyright cases involving computer software present special challenges. Unlike copyright cases involving works we are familiar with—say a book, a song, or a painting, where we as litigators start with at least a superficial familiarity of the medium upon which we can begin our assessment of the case and preparation of our litigation strategy—software cases often present the challenge of how to litigate the unfamiliar.

An initial hurdle for the litigator facing a software copyright infringement case is to understand the precise rights at issue. Software cases often involve rights that fall within the realm of different laws, including patent law, copyright law, and trade secrets law, among others. Differentiating among these laws and their corresponding rights and protections is essential.

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