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Direct evidence of actual copying by a defendant rarely exists, so plaintiffs must often resort to indirectly proving copying. [1] [page needed] Typically, this is done by first showing that the defendant had access to the plaintiff's work and that the degree of similarity between the two works is so striking or substantial that the similarity could only have been caused by copying, and not ...
copyright infringement, non-literal elements, substantial similarity Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc. (3rd Cir. 1986) was a landmark case in defining principles that applied to copyright of computer software in the United States, extending beyond literal copying of the text to copying the more abstract structure, sequence ...
The Second Circuit had also established a decade earlier a "more discerning observer" test for work, usually visual, that combined copyrighted and uncopyrightable elements, [27] But citing concerns expressed in intervening circuit cases about the foundation of that test, concerns that seemed to Kaplan to undermine it, he concluded that both ...
The court states the test for copyright infringement as copying an item that is the subject of a valid copyright, making no mention of improper appropriation of protectable elements, or in fact any distinction between protectable and unprotectable elements of Steinberg's drawing. This is in contrast to the 2nd Circuit's prior opinion in Nichols v.
There are implications as to the use of expert evidence arising from the Court's observation that, while the "intended lay observer" may be a useful starting point, the ultimate assessment should be done from the perspective of "a person whose senses and knowledge allow him or her to fully assess and appreciate all relevant aspects – patent ...
This process is based on other previously established copyright principles of merger, scenes a faire, and the public domain. [1] In this test, the court must first determine the allegedly infringed program's constituent structural parts. Then, the parts are filtered to extract any non-protected elements.
As the test evokes an audience of reasonable purchasers of the design or product, similar to that of the trademark test. As mentioned, infringement is judged “in the eye of an ordinary observer”. From this, the audience for the test of infringement is an ordinary observer who is placed in the position to determine the similarities of the ...
The broader legal consequence of the Supreme Court's decision was its establishment of a general test for determining whether a device with copying or recording capabilities ran afoul of copyright law. This test has created some interpretative challenges for courts when applying the precedent to more recent file sharing technologies available ...