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By: Mark R. Malek

As promised in my last article, I wanted to provide you with an example that I have come across of the overenforcement of copyrights. The articles that I am posting lately regarding copyrights find their origin in a debate I had recently on twitter with some folks that believe that copyrights should be abolished.  As indicated in my last article, I just do not understand the thoughts of copyright abolitionists.  That is despite the several times that they have tried to explain it to me.  Go back and read some of the back and forth comments in the last article.

I do understand the view that copyrights are sometimes over enforced.  The example I provided in my last article was when an alleged owner of software attempted to bring a copyright infringement lawsuit against one of my clients, but took the position that since my client’s software performed the same function, it must have infringed the copyright of his software.  WRONG!  The unfortunate part is that my client had to engage in federal litigation in order to win his case, but it just should not have ever even come to that point.

In that particular case, the two parties attempted to enter into a business relationship, but for a number of reasons, they decided to go their separate ways.  One party moved forward with a very old version of his software.  The other party, my client, decided to independently create a new version of the software without copying a single line of code or any screen shot of the original version of the software.  In fact, the new version of the software was written in a completely different software language, had a different appearance, and carried out far more functions than the original.

Despite all of the above, my client was, nonetheless, served with a lawsuit alleging, among several other ridiculous causes of action, copyright infringement.  There are two options at that point.  First, ignore the lawsuit, have a default judgment entered against him, and the court grant all the relief that the plaintiff is asking for.  Second is to fight the suit.  Of course, a third option, settlement, was explored, but that did not exactly work out.

Throughout the process, I was up against an attorney that really did not have much experience in copyright litigation.  This is despite being admitted to the bar for about 30 years (probably more, but I didn’t care to ask).  I have always said that intellectual property law is not something that an attorney should dabble in.  It is pretty specialized, and although times may be tough for some attorneys, that does not mean they need to start practicing door law, i.e., they can handle any case that walks in the door.  It was very frustrating to continuously try to explain copyright law to opposing counsel, and to have to appear before the court simply for the court to also explain why certain things were not discoverable.  Turns out the case was just an attempt for the plaintiff, who was not a proficient computer programmer, to get his hands on my client’s source code so that he could infringe it.

Almost needless to say, the case ended in my client’s favor, but to what end?  My client spent substantial sums of money defending a case for copyright infringement when there really was no case to be made for copyright infringement.  This was an example of someone trying to overenforce a copyright.  This guy had a copyright in the original software, but was not pleased that someone else had a software that carried out a similar function.  Again – function is not protectable with copyright.

I’m going to keep posting on this topic.  Some of the issues I want to discuss in the future is going to be about the copyright term (why it may be too long) and the blurred lines between copyrights and patents.