Having looking at the court's logic, I would say that the word "simply" is a misnomer [and he only quoted the first part of the sentence, which ends for two reasons (which are then given, the first being merely procedural, that this was an [appeal of a] request for a preliminary injunction, rather than something more full-blown)]. Nick makes no argument for his conclusion that the "[s]ame thing would happen here", and I see no reason to think it is "simple". And as stated previously, the AFC would likely be used in any event, which indeed does note that things such as "structures" can be subject to copyright, though it chides Whelan in part for the latter's inter alia proposal that structural components are subject to protection (see also the above Nimmer commentary): We emphasize that, like all copyright infringement cases, those that involve computer programs are highly fact specific. The amount of protection due structural elements, in any given case, will vary according to the protectable expression found to exist within the program at issue.Nick wrote:'the Plains Cotton court stated simply: "We decline to embrace Whelan."' Same thing would happen here.
Here is part of the Plains Cotton decision:
The most relevant part is: We decline to embrace Whelan for two reasons. [...] Second, appellees presented evidence that many of the similarities between the GEMS and Telcot programs are dictated by the externalities of the cotton market. To the best of my knowledge and analysis, the similarities of Rybka 1.0 Beta and Fruit 2.1 are not dictated by the externalities of the computer chess market. Nor is the alleged copying something akin to the "input formats" mentioned above.http://law.justia.com/cases/federal/app ... 56/311573/ (24-26)
The legal finding by the district court ultimately rests on a judgment about the extent of the protection offered by appellant's copyright. On that issue, we look to our colleague Judge Higginbotham's opinion in Synercom Technology Inc. v. University Computing Co., 462 F. Supp. 1003, 199 U.S.P.Q. (BNA) 537 (N.D. Tex. 1978). In that case, Judge Higginbotham held that "input formats" of a computer program — the organization and configuration of the information fed to the computer — were ideas, not expressions, and thus were not protected by copyright.[2]
To the extent that input formats represent a level of computer software design more specific than functional design and more general than line-by-line program design, the issue of their copyrightability is relevant to the issue of whether GEMS infringes on protected Telcot designs. Appellant urges that we adopt the reasoning of Whelan Associates. Inc. v. Jaslow Dental Laboratory Inc., 797 F.2d 1222, 230 U.S.P.Q. (BNA) 481 (3d Cir. 1986), which admittedly is "at odds with Judge Higginbotham's scholarly opinion." Id. at 1239. Whelan rejects the premise developed in Synercom that "there [is] a difference between the copyrightability of sequence and form in the computer context and in any other context," id. at 1240, holding that the structure, sequence, and organization of computer programs are copyrightable.
We decline to embrace Whelan for two reasons. First, the issue is presented to us on review of a denial of a motion for a preliminary injunction. Thus, the record is only partially developed, and our review is one step removed from the actual merits of the case. Second, appellees presented evidence that many of the similarities between the GEMS and Telcot programs are dictated by the externalities of the cotton market. To that extent, the facts of this case fit squarely within Synercom's powerful analogy to the hypothetical development of gear shift patterns. 462 F. Supp. at 1013. The record supports the inference that market factors play a significant role in determining the sequence and organization of cotton marketing software, and we decline to hold that those patterns cannot constitute "ideas" in a computer context.[3]