Judiciary-Friendly Forensics of Software Copyright Infringement by Bhattathiripad Vinod

Author:Bhattathiripad, Vinod...
Language: eng
Format: epub
Published: 2014-04-23T02:42:31.742000+00:00

The Abstraction Phase of the AFC Test

Software Abstraction Policies: The abstraction step of the AFC test is generally performed in accordance with the US judiciary Tenth Circuit elaboration that “…a computer program can often be parsed into at least six levels of generally declining abstraction. (i) the main purpose; (ii) the program structure or architecture; (iii) modules; (iv) algorithms and data structures; (v) source code; and (vi) object code.” (USCA10C, 1993). Even then the US courts have not set any strict methods and/or precedence on exactly how to abstract software because the procedure of abstracting will necessarily vary from case-to-case and program-to-program for several reasons such as the wide range of programming design and implementation methods, the complexity of software and the ever-changing nature of computer software technology (USCA10C, 1993). Obviously, the abstraction need not be performed in one specific way and that different ways of abstractions can be considered legal and valid so long as the abstract is operational in the subsequent phases. The previously mentioned 6 levels of abstraction are just for the guidance of the experts and the expert designated to investigate a particular case of copyright infringement can even convincingly suggest more levels of abstraction to the judiciary and most judiciaries would welcome such suggestions as helpful guidance. Although the Abstraction step was introduced and applied in a fairly good manner in Computer Associates v Altai, there was general doubt whether abstraction of software can be carried out in any manner or should necessarily be in the way in which it was applied/used in Computer Associates v Altai. Through the Gates Rubber v Bando Chemical decision, the tenth circuit decision (USCA10C, 1993) of the US judiciary clarified this doubt.

These generalized levels of abstractions will not, of course, fit all computer codes. Ordinarily, expert testimony will be helpful to organize a particular program into various levels of abstraction. In any event, as pointed out earlier, the organization of a program into abstraction levels is not an end in itself, but it is only a tool that facilitates the critical next step of filtering out unprotectable elements of the program. (USCA10C, 1993)

This judicial elaboration and the further clarification of the terse description of the procedural forensic abstraction of software, were also based on the subsequent brilliant academic proposals from the legal and computer science scholars (Ogilvy, 1992; Hollaar, 2002). With all these descriptions, elaborations and clarifications, practically, abstraction turned out to be a phase in the AFC test in which the investigator prepares six different documents to explain six different aspects of the software of both the plaintiff and the defendant and these documents help the judiciary to understand what these two software packages are for (See Box 1).

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