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Through the ADventures in Law Blog, BakerHostetler’s Advertising, Marketing and Digital Media team provides updates and analysis on issues and trends in the advertising and marketing industry.

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The use of noncompetes is now shifting across the country. Many states are limiting the use of noncompetes. Several states have enacted or are considering prohibitions on noncompetes. Nationally, the Federal Trade Commission is engaging in a rulemaking that could ban noncompete agreements between employers and employees. What does all of this mean for your business? Are there alternatives to noncompetes that can protect your business?

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Since the recent Dobbs decision, which overturned Roe v. Wade, companies have been impacted nationwide and have several new legal angles to consider as it relates to their employees and their businesses. With that in mind, we’ve created a new podcast series, Dobbs on Demand, designed to help you navigate this new and evolving landscape.

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BakerHostetler has created this resource, which summarizes cases addressing copyright protection for computer software.

contentpilot/introduction

This resource digests case decisions addressing copyright protection of non-literal elements of computer programs, organizing the decisions by whether they extended or rejected such protection, and includes a section identifying cases based on the type of non-literal element at issue.

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We have published a&nbsp;<a href="https://www.copyrightcontentplatforms.com/2018/01/2017-the-year-in-which-copyright-went-beyond-source-code/" target="_blank" rel="noreferrer noopener">blog post</a>&nbsp;that provides more context for this resource as well

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Case decisions organized by federal circuit and protectable status.

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Cases decisions organized by relevant software element and protectable status.

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For further questions or feedback, contact&nbsp;<a href="https://www.bakerlaw.com/ChadARutkowski">Chad Rutkowski</a>&nbsp;at 215.564.8910 or&nbsp;<a href="mailto:crutkowski@bakerlaw.com">crutkowski@bakerlaw.com</a>.

Protectable

Case decisions organized by federal circuit

1st Circuit

McEnroe v. Mantissa Corp., 2016 WL 7799636 (D. Mass. Feb. 29, 2016)

Elements of Software that control movements of an item through a warehouse:

core/list

Maddog Software, Inc. v. Sklader, 382 F. Supp. 2d 268 (D.N.H. 2005)

Modification of Microsoft Access database forms subject to protection because of expressive choices "as to what buttons and fields to include" and choices of forms to include in freight dispatch and billing program. &nbsp;

Real View, LLC v. 20-20 Techs., Inc., 683 F. Supp. 2d 147 (D. Mass. 2010)

Elements of CAD software for designing home kitchens:

contentpilot/accordion

2nd Circuit

Cognotec Servs., Ltd. v. Morgan Guar. Trust Co. of New York, 862 F. Supp. 45 (S.D.N.Y. 1994)

SSO of program used to manage foreign currency exchange.

eScholar, LLC v. Otis Educ. Sys., 2005 WL 2977569 (S.D.N.Y. Nov. 3, 2005)

Elements of a data warehouse model: selection, coordination, and arrangements of the fields and entities of a data model for an education data-related computer program.

Harbor Software, Inc. v. Applied Sys., Inc., 925 F. Supp. 1042 (S.D.N.Y. 1996)

Features of customer relations management software:

Mfr.'s Techs., Inc. v. CAMS, Inc., 706 F. Supp. 984 (D. Conn. 1989)

Features of software used in estimating costs of machining manufactured parts:

Mktg. Tech. Sols., Inc. v. Medizine LLC, 2010 WL 2034404 (S.D.N.Y. May 18, 2010)

Algorithm used to compute ranking of success of marketing campaigns in healthcare marketing software.

O.P. Sols., Inc. v. Intellectual Prop. Network, Ltd., 1999 WL 47191 (S.D.N.Y. Feb. 2, 1999)

Elements of patent and trademark prosecution software:

Wireless TV Studios, Inc. v. Digital Dispatch Sys., Inc., 2008 WL 2474626 (E.D.N.Y. June 19, 2008)

3rd Circuit

Air Express Int'l v. LOG-NET, Inc., 2019 WL 1441195 (D.N.J. Mar. 31, 2019)

Elements of software related to trade, transportation, logistics, and supply chain management:

Clarity Software, LLC v. Allianz Life Ins. Co. of N. Am., 2006 WL 2346292 (W.D. Pa. Aug. 11, 2006)

Screen displays of retirement and estate planning tool.

FedEx Ground Package Sys. v. Applications Int'l Corp., 2008 WL 4279751 (W.D. Pa. Sept. 12, 2008)

Database of&nbsp; employee safety record management software as output of source code.

Syngy, Inc. v. ZS Assocs., Inc., 2015 WL 899408 (E.D. Pa. Mar. 3, 2015)

Elements of software used to track salesman compensation incentivization:

Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012)

Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986)

Features of dental office management software:

4th Circuit

SAS Inst. v. World Programming, Ltd., 2012 WL 5844910 (E.D.N.C. Oct. 18, 2012)

Secureinfo Corp. v. Telos Corp., 387 F. Supp. 2d 593 (E.D. Va. 2005)

User manuals and outputs of program used to ensure cybersecurity compliance:

5th Circuit

Digital Drilling Data Sys. LLC v. Petrolink Servs. Inc., 2018 WL 2267139 (S.D. Tex. May 16, 2018)

Schema of software that assists oil and gas companies in their efforts to accurately steer drill bits into specific targets thousands of feet underground

Compaq Comp. Corp. v. Procom Tech., Inc., 908 F. Supp. 1409 (S.D. Tex. 1995)

Compilation of server failure warning threshhold values.&nbsp;

Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994)

Features of software for analyzing structural integrity of buildings, including input and output format of user interface as non-literal element of user manual.

Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131 (5th Cir. 2004)

Features of software program used in tracking freight: SSO and UI potentially copyrightable.

Positive Software Sols., Inc. v. New Century Mortg. Corp., 259 F. Supp. 2d 531 (N.D. Tex. 2003)

SQL Data Structures for mortgage loan database.

Synercom Tech., Inc. v. Univ. Computing Co., 462 F. Supp. 1003 (N.D. Tex. 1978)

User manual for software used in structural engineering analysis.

Versata Software, Inc. v. Infosys Techs. Ltd., 2013 WL 12385035 (W.D. Tex. Sept. 6, 2013)

SSO of financial services management software in context of copyright preemption analysis.

6th Circuit

Gutierrez v. CogScreen, LLC, 2017 WL 8727627 (W.D. Tenn. Dec. 5, 2017)

Screen displays of pilot-testing software

Consul Tec, Inc. v. Interface Sys., Inc., 1991 WL 427891 (E.D. Mich. Oct. 31, 1991)

7th Circuit

Napoli v. Sears, Roebuck &amp; Co., 874 F. Supp. 206 (N.D. Ill. 1995), vacated pursuant to settlement of parties, 926 F. Supp. 780 (N.D. Ill. 1996)

Screen displays of home goods service optimization software.

Woods v. Resnick, 725 F. Supp. 2d 809 (W.D. Wis. 2010)

Screen displays and screen menus of automobile financing software.&nbsp; But here, a showing was not made that elements were original expression.

8th Circuit

Control Data Sys., Inc. v. Infoware, Inc., 903 F. Supp. 1316 (D. Minn. 1995)

Schultz v. Lost Nation Booster Club, 2014 WL 10038777 (S.D. Iowa Oct. 14, 2014)

Visual appearance of website - protectable, but not protected in this case because plaintiff only had (literary) copyright in HTML code of website and had not deposited visual appearance reproductions with Register for a (audiovisual) copyright.

9th Circuit

SellPoolSuppliesOnline.com LLC V. Ugly Pools Arizona Inc., 2017 WL 6420464 (D. Ariz. Jun. 9, 2017)SellPoolSuppliesOnline.com LLC V. Ugly Pools Arizona Inc., 2017 WL 6420464 (D. Ariz. Jun. 9, 2017)

Impermissibly copying and creating a derivative of a pre-made website that was marketed to those that wanted to make a website for their business, where the protectable elements of the pre-made website included the "coding" and information about the "file structure."&nbsp; The pre-made website included: a compilation of programs, representations, originally authored works, writings, photos, and computer architecture and design.

Ticketmaster L.L.C. v. Prestige Entm't West, Inc., 315 F. Supp. 3d 1147 (C.D. Cal. 2018)

Impermissibly copying a website for selling tickets for live entertainment events.&nbsp; The non-literal elements being the individual audiovisual components of the website, including the website's logos, images, fonts, videos and sound effects.&nbsp; The website's dynamic nonliteral elements including the experience of the website as presented to individual users.

Broderbund Software. Inc., v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986)

Features of greeting card creation software: 1) the menu screens, 2) the sequence of screens, and 3) the overall layout.

Capcom U.S.A., Inc. v. Data E. Corp., 1994 WL 1751482 (N.D. Cal. Mar. 16, 1994)

Features of marital arts fighting video game: 1) concrete details of certain expressive characters, and 2) character fight moves.

Design Data Corp. v. Unigate Enter., Inc., 847 F.3d 1169 (9th Cir. 2017)

CAD drawings and models potentially protectable as output of source code if evidence presented that program did the "lion's share" of the work.

Interactive Network, Inc. v. NTN Commc'ns, Inc., 875 F. Supp. 1398 (N.D. Cal. 1995)

Features of interactive predictive statistics football game software:

Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173 (9th Cir. 1989)

SSO of program to control wastewater treatment plants.

Lilith Games (Shanghai) Co. v. uCool, Inc., 2015 WL 5591612 (N.D. Cal. Sept. 23, 2015)

MDY Indus., LLC v. Blizzard Entm't, Inc., 2011 WL 538748 (9th Cir. Feb. 17, 2011)

In context of §1201 violation regarding access to video game software, individual non-literal elements: discrete visual and audible components of world of warcraft game; and dynamic non-literal elements: "real-time experience of traveling through different worlds, hearing their sounds, viewing their strutures, encountering their inhabitants and monters, and encountering other players."

Merch. Transaction Sys. v. Nelcela, Inc., 2009 WL 723001 (D. Ariz. Mar. 18, 2009)

Aspects of retail sales transaction software:

10th Circuit

Gates Rubber Co. v. Bando Chemical Indus., Ltd., 9 F.3d 823 (10th Cir. 1993)

Features of software program used in selecting rubber belts for industrial machines:

Autoskill, Inc. v. Nat'l Educ. Support Sys. Inc., 793 F. Supp. 1557 (D.N.M. 1992)

Sequence, structure, and organization of software program used to aid reading comprehension, including: 1) approach in diagnosing reader subtypes; 2) presentation of student performance profile data; 3) utilization of bottom-up progression method; 4) multiple choice testing groupings; and 5) use of training to deficit approach.

11th Circuit

CMAX/Cleveland, Inc. v. UCR, Inc., 804 F. Supp. 337 (M.D. Ga. 1992)

Features of inventory and agreement tracking software for use in rental industry:

Digital Commc'ns Assocs., Inc. v. Softklone Distrib. Corp., 659 F. Supp. 449 (N.D. Ga. 1987)

Features of computer networking software:

Mitek Holdings, Inc. v. Arce Eng'g Co., 864 F. Supp. 1568 (S.D. Fla. 1994)

Elements of software used in designing building trusses:

DC/Federal

DSMC, Inc. v. Convera Corp., 479 F. Supp. 2d 68 (D.D.C. 2007)

Database Schema used to catalog audiovisual content.

Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014)

SSO of API packages for interoperability software platform.

Unprotectable

McEnroe v. Mantissa Corp., 2016 WL 7799636 (D. Mass. Feb. 29, 2016) - UN

Ilog, Inc. v. Bell Logic, LLC, 181 F. Supp. 2d 3 (D. Mass. 2002)

Features of software used to codify and implement business practices:

Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995)

Menu command hierarchy of spreadsheet software.

Real View, LLC v. 20-20 Techs., Inc., 683 F. Supp. 2d 147 (D. Mass. 2010) - UN

UpdateCom, Inc. v. FirstBank P.R., Inc., 2014 WL 346436 (D.P.R. Jan. 30, 2014)

Highly generalized architecture diagram of software used in cash machine management.

Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)

Parameter lists and macros of software used to schedule tasks to be performed by a mainframe computer.

Harbor Software, Inc. v. Applied Sys., Inc., 925 F. Supp. 1042 (S.D.N.Y. 1996) - UN

Jamison Bus. Sys., Inc. v. Unique Software Support Corp., 2005 WL 1262095 (E.D.N.Y. May 26, 2005)

Menu command hiearchy screens of rental equipment management software.

Mfr.'s Techs., Inc. v. CAMS, Inc., 706 F. Supp. 984 (D. Conn. 1989) - UN

Productivity Software Int'l, Inc. v. Healthcare Techs., Inc., 1995 WL 437526 (S.D.N.Y. July 25, 1995)

Elements of word processing software tool used to convert short hand to long hand:

Torah Soft Ltd. v. Drosnin, 136 F. Supp. 2d 276 (S.D.N.Y. 2001)