Ile kodu jest de minimis?
September 17th, 2008, Tomasz RychlickiW wyroku w sprawie Dun & Bradstreet Software Services, Inc. v Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002), cert. denied, 538 US 1032, 123 S. Ct. 2075 (2003), sąd uznał, że skopiowanie 27 lini kodu źródłowego z całości, która zawierała 525,000 linii jest naruszeniem prawa autorskiego.
W wyroku w sprawie Veritas Operating Corp. v Microsoft Corp., No. 06-0703, 2008 US Dist. LEXIS 8166 (W.D. Wash. Feb 4, 2008), kolejny sąd potwierdził, że skopiowanie 54 lini kodu z łącznej liczby 160,000 również jest naruszeniem prawa autorskiego i nie kwalifikuje sie do obrony na podstawie argumentu de minimis.
2. Whether the Code at Issue is Protected by Copyright Law
To succeed on its copyright infringement claim, Veritas will have to prove that Microsoft “copied protected elements of [Veritas'] work.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000), cert. denied, 531 U.S. 1126, 121 S.Ct. 881, 148 L.Ed.2d 790 (2000). Absent direct evidence of copying, such as an admission that defendant copied the work at issue, this factor is normally proven by circumstantial evidence of defendant’s access to plaintiff’s work and substantial similarity between the works. Id. Before the Court reaches the substantial similarity analysis, however, the Court must first filter out any non-protected material from the purportedly protected expression. Computer Assoc. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir.1992). As to whatever “golden nugget” of protected expression in the LDM code remains, the Court will then consider whether it is substantially similar to the allegedly infringing LVM code. Id.i. Non-Protected Elements
*8 The section of code allegedly infringed, by both parties’ accounts, is a “transaction macro.” (Def.’s Mot. 26 (Dkt. No. 212 at 27), Pl.’s Resp. 26 (Dkt. No. 289 at 32).) Veritas’ expert Dr. Chase describes transaction processing as a “transactional update and recovery in the implementation of configuration changes to disk groups or packs.” (Chase Report ¶ 102 (Dkt. No. 296-3 at 61).) As best the Court can determine, the transaction macro essentially works to preserve data and prevent its loss in the event of a range of hardware or software failures. Dr. Chase opines that “[t]his core code to store, update, and recover disk group configurations safely is crucial to the value of the software in an enterprise setting.” ( Id.)Under copyright law, even as to software code, “functional elements and elements taken from the public domain do not qualify for copyright protection.” Computer Assoc. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 714 (2d Cir.1992). Microsoft argues that the transaction macro was “required to maintain functionality with the Defined Interface, as required by the Agreement,” and as such, constitutes a functional, non-protected element of the allegedly infringed work. (Def.’s Mot. 26 (Dkt. No. 212 at 27).) However, Veritas’ expert Dr. Chase states that copying the transaction macro “was not necessary to maintain compatibility with the LDM on-disk structures.” (Chase Report ¶ 96 (Dkt. No. 296-3).) As a result, whether the transaction macro is a functional element is a disputed material fact.
Additionally, Microsoft argues that similar transaction macros have been in the public domain for decades, and that therefore the transaction macro at issue is not protected by copyright. (Def.’s Mot. 26 (Dkt. No. 212 at 27).) Veritas’ expert, however, has stated that the transaction macro was a proprietary feature that was developed by Veritas over many years. (Chase Report ¶ 103 (Dkt. No. 296-3 at 62).) Even Microsoft’s expert, Dr. Gary Nutt, recognizes that the transaction macro is crucial to the value of the product and stated that he was not aware of the publication of the macro:
Q: I am asking you whether you are aware of any publication by Veritas or anyone else of the unique implementation details associated with the transactions technology in LDM?
…
A: I would repeat that I am unaware of any source code being published, any of Veritas’ LDM source code appearing in publication.
(Nutt Dep. 51:3-13, 145:4-7 (Dkt. No. 296-4 at 15, 41).) It may be that similar transaction macros were common in computer science, as Microsoft contends, (Def.’s Mot. 26 (Dkt. No. 212 at 27)), but there is at least a genuine issue of material fact on this issue.
Finally, Microsoft’s argument that the alleged copying is de minimis is unpersuasive:
[E]ven a quantitatively small amount of copied material may be sufficiently important to the operation of plaintiff’s program to justify a finding of substantial similarity. For instance, a small portion of the structure or code of a program may nonetheless give it distinctive features or may make the program especially creative or desirable. In such a case, a finding of substantial similarity would be appropriate.
*9 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03(F)(5). In the instant case, as noted above, Veritas’ expert has opined that the transaction macro at issue makes the disputed technology more “desirable” because it is “robust against a range of adverse events that might occur” and “is crucial to the value of the software in an enterprise setting.” (Chase Report ¶ 102 (Dkt. No. 296-3 at 61).) Microsoft’s expert agrees with that characterization. (Nutt Dep. 145:5-7 (Dkt. No. 296-4 at 41). Accordingly, the Court will not dismiss the copyright claim on de minimis grounds.