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:




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