AAI Asks Federal Circuit to Prevent Software Copyright Overreaching (Cisco v. Arista)

Jan 05 2018
Amicus Program

The American Antitrust Institute (AAI) and the Computer & Communications Industry Association (CCIA) filed an amicus brief in the Federal Circuit Court of Appeals urging the court not to allow copyrights on industry-standard software interfaces to be used to lock consumers into a dominant firm’s product line. 

The case involves the user interfaces for operating systems that are used to control Ethernet switches and other network equipment. Cisco, the dominant firm in the network switch market, sued its rival Arista for copying certain text-based user interfaces (“command line user interfaces” or “CLIs”) that had become standard in the industry.

A jury found that Arista had infringed Cisco’s copyrights by copying some of the multiword command expressions contained in compilations of its CLIs, but that Arista was not liable because Arista established the “scenes a faire” defense, which applies when external factors, other than a copyright holder’s creativity, dictate the arrangement or selection of the expression at issue.

The amicus brief argues that the Federal Circuit should hold that industry-standard software interfaces like those at issue are methods or systems of operation, not protectable by copyright law, and that the Federal Circuit should reconsider its prior holding to the contrary in light of recent developments.  Alternatively, the brief argues that the court should affirm the jury’s verdict on the scenes a faire defense.

The brief emphasizes the importance of limiting copyright protection of computer software in order to ensure interoperability of competing products and services, which benefits consumers.  The brief points out that copyright protection of software interfaces or operating commands is unnecessary to incentivize software development, particularly where the value of the interface arises from users’ investment in learning the commands.  At the same time, if copyright protection extends to such interfaces, then the development of competing innovative software and hardware products will be deterred.

AAI filed a brief supporting a robust application of the fair use defense to prevent consumer lock-in Oracle v. Google

The brief was written by Jonathan Band, with assistance from AAI Vice President and General Counsel Rick Brunell.