Just last week, Facebook was spanked with a $500 million court judgement for non-literal infringement of software copyright. Even for Facebook, that’s a lot of money. Though less than the $4 billion that plaintiff ZeniMax had been asking for, it’s a large chunk of the $2 billion that Facebook paid for Oculus in 2014. The case was ZeniMax v. Oculus, and the jury decided that Facebook had infringed on the copyright of ZeniMax’s software source code. According to the jury, Oculus co-founder Palmer Luckey and CTO John Carmack violated a nondisclosure agreement (NDA) with ZeniMax when they all had worked together to develop the Oculus Rift, the virtual reality headset that caught the attention of Facebook.
I’ve been seeing some articles about the case from software engineers who are confused about the verdict, especially a Facebook rant by John Carmack. My consulting company specializes in software copyright infringement, my software company has created tools and procedures for determining whether software copyright occurred, and I wrote the primary textbook in the field of software forensics. In fact, I was the expert for Facebook in the famous case made into the movie The Social Network. I was able to show that Mark Zuckerberg didn’t copy Facebook code from the Winklevoss twins at Harvard. My consulting company wasn’t involved in this new case, so I cannot speak to the behind-the-scenes details, but I do think it’s important to understand nonliteral copyright infringement in case you’re thinking of taking some of your employer’s code with you to your next company.
What is Software Copyright Infringement?
Software source code, like any other form of writing, is protected by copyright. The copyright’s origins can be traced to 1557 when a royal charter for exclusive publishing rights was given by the English Crown to the Worshipful Company of Stationers of London. It can also be traced to seventeenth century Jewish law to protect publishers of prayer books. The US Constitution protects copyrights in Article I, Section 8, Clause 8: [The Congress shall have power] “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The first Copyright Act in the United States was passed in 1790 and protected “maps, charts and books.” Though copyright was generally considered to cover software source code, because it is written text, the Computer Software Copyright Act of 1980 was passed to specifically address software. So when someone tells you that software copyright is a recent concept, or that it’s “highly debatable” or there is “ample room to question its legitimacy,” that’s simply not true.
Copyright infringement occurs when someone takes one of the rights of a copyright owner without permission. For software, the key rights are to copy the code or create derivative works. In ZeniMax v. Oculus, the latter right was the one that the jury found was infringed. The code was not copied, according to them, but was used to create derivative works. In particular, the jury found what is called “nonliteral copying.”
Copyrights cover the actual “expression” of an idea, but not the idea itself. In other words, it covers the lines of code but not the functions that they perform. The functions can be protected as trade secrets, or they can be patented. Sometimes it’s difficult for someone unfamiliar with IP law to separate the functionality from the expression in source code. This so-called “dichotomy between idea and expression” is particularly confusing with respect to software, and was addressed in the case Whelan Associates v. Jaslow Dental Laboratory and then again in Computer Associates v. Altai.
Literal copying is when some creative, substantial chunk of code is copied verbatim. Most code is creative because there are so many ways of writing the same code that any particular way is due to the programmer’s creativity. Variable names are creative. Function names are creative. The formatting is creative. The sequence of statements can be creative. There’s not a high bar for creativity in copyright law. It doesn’t mean that the code was so complex that only a genius could write it. It simply means that there were many equally good ways of writing the code, and the programmer wrote the code in one particular way but was not required to write it that way. A side-by-side example of literally copied code is shown in Figure 1, where lines were copied from source code file 1 to source code file 2 and then changed. This can be demonstrated by the fact that all lines are exactly the same with only cosmetic changes of 1) removing comments and 2) slightly changing variable names.
But what is meant by “substantial”? That’s where experts like me might get into debates in court. Most experts, attorneys, judges, and juries will agree when literal copying occurred, though they might not agree on whether the copying was substantial.
Evidence of Literal Copying
Nonliteral copying refers not to copying of code, but to the code’s structure, sequence, and organization or “SEO.” First, note that nonliteral copying shouldn’t be confused with evidence of literal copying. Figure 2 shows source code file 2 that contains evidence of literal copying of source code file 1. The two files have different variable names and function names, and they perform operations in different sequences, so they might initially be thought to have been independently developed, in which case there is no copyright infringement. The variable names are very similar, but further research might show that the code is similar for one of the five reasons other than copying: third-party source code, code generation tools, commonly used elements, common algorithms, or common author. However, the smoking gun is the comment at the top of each file, referring to the routine CreateArraysFromBinary. That routine doesn’t exist in source code file 2, and so there’s no logical reason for the comment except that the code must have been literally copied and then changed, but someone forgot to change the comment. Although the sequences of code are similar, this is not a case of nonliteral copying but rather a case of literal copying that was subsequently modified.
When it comes to nonliteral copying, there can be even stronger disagreement among experts, but once it’s been determined that nonliteral copying occurred, and what was copied was creative and substantial, there is no disagreement that a copyright was infringed. This is not a new concept in copyright law. If you write a book about a boy and girl from warring families that meet, fall in love, find strong disapproval from friends and family, and eventually kill themselves, there’s probably no copyright infringement because the plots of West Side Story and Romeo and Juliet go back even further in time to the ancient story of Pyramus and Thisbe. But if you write about a Jewish boy and an Irish-Catholic girl who fall in love and get married and their parents get angry, but after a grandchild is born they reconcile, then you risk a copyright infringement charge from the copyright holder of the story “Abie’s Irish Rose,” as the author of “The Cohens and The Kells” found out in the famous case of Nichols v. Universal Pictures Corporation.
In a similar way, nonliteral copying refers not to copying of code, but to the code’s SEO. It can be argued that Figure 1 shows nonliteral copying, in addition to literal copying, because the sequence of instructions are virtually identical in both files, but nonliteral copying is more often used to show that a program’s architecture was copied. Figure 3 shows the similarities of two software architectures that might result in a copyright infringement claim. However, it’s important that the blocks in the diagrams represent actual blocks of source code such as routines or files or directories of files, and not blocks of functionality, because copyright covers the code itself, and the organization of that code, but not how it functions.
How is Nonliteral Copying Misused by Experts?
I generally advise my plaintiff clients to avoid claiming that the defendant’s software architecture infringes their program’s copyright. It’s not that this can’t be a legitimate claim, it’s that it’s difficult to prove and difficult to demonstrate to a nontechnical judge or jury. Software architecture has no standard, quantifiable definition. That means that the argument in court comes down to which expert is more believable, without many extrinsic sources to back up the conclusion.
That also means that blocks can be drawn around any set of code to claim it’s an architecture. At some high level, all software has the same architecture: one block gets input from a user, a second block performs a calculation, and a third block presents the results to the user. If you think that’s silly, I’ve seen that kind of architecture block diagram in several plaintiff’s expert reports. Fortunately, it’s easy to find other, unrelated programs that have the same architecture to show that this high-level architecture is not unique or creative. Unfortunately, the software architecture argument can sometimes be used to achieve its actual goal, with the help of an unscrupulous, incompetent, or at least lazy software expert, which is to put significant financial and psychological pressure on the defendant until the defendant settles or, worse, goes out of business. I’ve seen that strategy work on at least one occasion.
So what about the ZeniMax v. Facebook case? While you read many reports that make fantastical claims, it is important to remember that software copyright has been accepted and understood by the legal community as well as any law can be. Software copyrights have been formally codified since 1980, though copyrights on written works have been accepted since the founding of our nation. Nonliteral infringement is a long-standing and universally accepted result of copyright law and a legitimate reason for finding software copyright infringement. Was the verdict in this case correct? That is a different question entirely separate from whether software can be copyrighted and whether the legal theories were sound, but without facts to the contrary, it seems perfectly reasonable to assume that the jury made a correct decision. After all, American jurisprudence is built upon the right to a trial by peers, and after hearing the evidence, they found there was infringement, although not as much in damages as ZeniMax had wanted.
- Brian Solomon, “Facebook Buys Oculus, Virtual Reality Gaming Startup, For $2 Billion,” Forbes, http://www.forbes.com/sites/briansolomon/2014/03/25/facebook-buys-oculus-virtual-reality-gaming-startup-for-2-billion/#4d1aec264222, Mar 25, 2014
- Brian Sommer, “$4 Billion ZeniMax v. Oculus Verdict Could Come as Early as Today, Here’s What You Need to Know,” http://www.roadtovr.com/zenimax-vs-oculus-facebook-vr-lawsuit-court-case-summary-verdict, January 30, 2017.
- Bob Zeidman, The Software IP Detective’s Handbook: Measurement, Comparison, and Infringement Detection, Prentice-Hall, Upper Saddle River, NJ, 2011, 450pp.
- Andy Chalk, “John Carmack posts angry response to ZeniMax lawsuit loss on Facebook,” http://www.pcgamer.com/john-carmack-posts-angry-response-to-zenimax-lawsuit-loss-on-facebook/, February 2, 2017.
- Leigh Beadon, “How Is ‘Non-Literally Copying’ Code Still Copyright Infringement?” https://www.techdirt.com/articles/20170202/11372736614/how-is-non-literally-copying-code-still-copyright-infringement.shtml, February 3, 2017.
- Lee Hollar, “Legal Protection of Digital Information, Chapter 2: Copyright of Computer Programs,” http://digital-law-online.info/lpdi1.0/treatise21.html, copyright 2002.
- Bob Zeidman, “The Software IP Detective: Infringement Detection in a Nutshell,” IP Watchdog, http://www.ipwatchdog.com/2011/11/20/the-software-ip-detective-infringement-detection-in-a-nutshell, November 20, 2011.
- Suzanne R. Jones, “Whelan Associates v. Jaslow Dental Laboratory: Copyright Protection for the Structure and Sequence of Computer Programs,” Digital Commons at Loyola Marymount University and Loyola Law School, http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1554&context=llr, November 1, 1987.
- “Computer Associates International v. Altai, Inc,” Bloomberg Law, http://www.casebriefs.com/blog/law/intellectual-property-law/intellectual-property-keyed-to-merges/copyright-law/computer-associates-international-v-altai-inc, retrieved February 5, 2017.
- “Nichols v. Universal Pictures Corporation,” Bloomberg Law, http://www.casebriefs.com/blog/law/intellectual-property-law/intellectual-property-keyed-to-merges/copyright-law/nichols-v-universal-pictures-corporation, retrieved February 5, 2017.