The Cisco Systems v. Arista case has gotten very little attention among the information justice community who generally care about freedom to reuse unprotectable elements in copyrighted works. The case and the issues it raises deserve more visibility, as I expressed in a brief I wrote in support of Arista. Cisco charged Arista with infringement for its reuse of 509 command-line interface (CLI) terms, along with some additional elements of the Cisco user interface, which engineers use to configure their ethernet switching technologies. Although I think the case should have been thrown out on summary judgment, Arista won a jury trial on its defense that the CLI terms were scenes a faire elements of the Cisco programs and hence unprotectable by copyright law. Cisco’s appeal to the Federal Circuit of the denial of it’s motion for judgment as a matter of law, if successful, would undermine the scenes a faire defense not only in software cases, but also generally.
The scenes a faire doctrine, which recognizes elements of a work that are stock, rudimentary, or that arise naturally from a particular theme or setting, is a flexible and capacious limitation on copyright protection that can shield defendants from copyright liability. There are at least five senses in which the scenes a faire doctrine may apply in software copyright cases, including when infringement claims are based on the defendant’s reuse of program command terms. First, program command terms can be scenes a faire insofar as they incorporate official industry standard terms. Second, program commands that are common or stock elements likely to be found in software of that kind may be scenes a faire elements. Third, program commands can also be scenes a faire if they logically flow from the functions to be performed. Fourth, program command terms can be scenes a faire if external factors, including market expectations, constrain programmers’ choices of command terms. Fifth, under controlling Ninth Circuit precedents, program commands, like other user interface elements, can, by virtue of longstanding use in an industry, become standards in that industry, and hence scenes a faire elements.
At trial, insofar as the jury heard evidence that Cisco’s command-line interface (“CLI”) terms were standards in one or more of these senses, it could reasonably have concluded that so many elements of the claimed compilation of terms were scenes a faire that Arista’s use of those terms did not infringe. Such a finding is especially likely and appropriate given that compilations of program command terms are generally more functional than expressive. In some cases, program command terms, like functional compilations more generally, have been adjudged too functional to be protectable by copyright law. Some functional compilations, though protectable, have enjoyed a very thin scope of protection. The U.S. Court of Appeals for the Federal Circuit should be skeptical of Cisco’s claim that the CLI elements used by Arista are in themselves a protectable work of authorship that Arista infringed, because those commands were subsets of a larger set of command terms and many were scenes a faire elements.
My full brief is available at https://ssrn.com/abstract=3095819
