Version Control Blues: Failure to Keep Copy of Registered Version of Source Code Dooms Copyright Infringement Claim

Creative Commons License photo credit: Sebastian Fuss
A recent First Circuit decision highlights the importance of keeping records of revisions to computer software in copyright infringement cases.  The court affirmed summary judgment against the plaintiff because the source code it used to prove infringement was from a later version of the software than the one registered.  The court reasoned that without comparison to the source code of the version actually registered, the plaintiff could not prove that the copied code came from the registered version.

In Airframe Systems, Inc. v. L-3 Communications Corp., Airframe Systems had registered its claim of copyright to four versions of an aircraft maintenance tracking software application.  It also licensed the software to L-3 (in executable form, not source code).  In the course of providing system maintenance to L-3, Airframe Systems’ president discovered that L-3 had unlicensed source code to the licensed software on its computer system.  Litigation hijinx ensued.

On the issue of copying, Airframe Systems relied upon the declaration of its president, who testified that he had compared fifteen percent of the code found on L-3’s computer with the latest version of Airframe Systems’ code and found the code to be almost identical, including identical misspellings and improperly hyphenated words.  The plaintiff also found commenting in the L-3 source code that evinced copying, such as “I do not know what this code is used for so I will leave it here anyway.”

L-3 argued, and both the district and appellate courts agreed, that this evidence did not prove actionable copying because the comparison did not use the version of the plaintiff’s source code that was actually registered.  Because it was possible that all of the copied code was absent from the earlier, registered version, the analysis could not logically support the infringement claim.  There was no evidence in the record that the later version of the software had ever been registered, thus Aiframe Systems could not sue on that version.  Nor was there any evidence of how much (if any) of the later version actually used for the comparison was also in one of the registered versions.  Without evidence that any of the copied code had actually been registered, the plaintiff’s copyright infringement claim was doomed.

Here is the decision: