[conspire] Patents & copyrights, ideas & expressions

[Rick Moen]

Hi, Nick.  Don't forget that 'expressive element' is a term of art in 
copyright law, and needn't have a lot to do with your or anyone else's
perception of creativity or personal style.  That having been said, I've
never heard of any caselaw involving assertion of copyright over a
schemetic.  If any such exist, reading those opinions would be the right
way to determine how judges would approach the problem.

Most of my familiarity originates in (no surprise) software cases, where 
you can read the concepts of 'expressive element', 'substantially similar',
'non-literal copying', and 'functional element' applied -- cases like
CAI v. Altai (http://www.bitlaw.com/source/cases/copyright/altai.html).

(To explain the 'functional element' bit:  Any parts of an otherwise
copyright-eligible work whose form and content is dictated by function
or compatibility is ruled not expressive, hence not copyrightable.  So,
for example, when you write code in a particular way because it simply 
_has to_ be that way in order to work or be compatible with other code,
you enjoy zero copyright monopoly over that portion of your code.  Also, 
on account of the idea/expression dichotomy, you cannot enjoy copyright
over anything dictated by the purpose or function of a work, or any
exprssive element that is 'necessarily incidental to' an idea.)

CAI v. Altai is a particularly interesting case because it's where the
USSC developed the concept of 'non-literal copying'.  Altai had hired a
Computer Associates = CAI mainframe programmer and tasked him with
writing several programs including one called OSCAR.  They later found 
out that he had brought with him from CAI the source code of a similar
codebase called ADAPTER and based initial versions of OSCAR through v
3.4 on literal copying from ADAPTER.  Discovering the copyright
violation (by being sued), Altai management hired a team of eight
programmers to do a clean-room rewrite to create OSCAR 3.5.  The bone of
contention in CAI v. Altai was CAI's charge that Altai making sure that
the literal elements of its revamped OSCAR program were no longer
substantially similar to the literal elements of CA's ADAPTER wasn't
good enough.

The court considered non-literal elements of OSCAR 3.5 such as
general flow charts as well as the more specific organization of
inter-modular relationships, parameter lists, and macros.  

The judge in CAI v. Altai _abstracted_ out the layers of structure in 
OSCAR 3.5, _filtered_ out non-copyrightable structural elements that
were dictated by function or compatibility, or were necessarily
incidental to an idea, or dictated by the purpose or function of a work, 
further filtered out elements taken from the public domain, and then
_compared_ the remaining copyrightable structural elements with those of
CAI's ADAPTER.

And:  In this case, they found that there was no basis for infringement
by OSCAR 3.5 based on the abstraction, filtering, comparison test for
non-literal copying, plus zero evidence for literal copying, hence held
Altai blameless on that matter.

How do courts look at copyright encumbrance on schemetics?  Not sure,
but the above may give some general guidance.