Re: More GPL questions

[Alexander Terekhov]

Stefaan A Eeckels wrote:
[...]
> I would go as far as to say that in the case of software, ...

-------
No. 05-04001
______________________________________________________
UNITED STATES COURT OF APPEALS FOR THE 13th CIRCUIT
______________________________________________________
OMEGA, INC.,
Plaintiff-Appellant,
v.
ALPHA, CO.,
Defendant-Appellee.
___________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF NOWHERE
___________________________________________________________
BRIEF OF DEFENDANT-APPELLEE APLHA, CO.
Thomas R. Graves
Shidler Center for Law, Commerce & Technology
University of Washington
Seattle, WA 98195-3020
Attorney for Appellee
March 15, 2006
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QUESTIONS PRESENTED
1.
Does Connector alone constitute a derivative work of Database Manager 2.0?
2.
Must Connector be considered together with Database Manager 2.0 in assessing
whether a derivative work has been created, and if so, does the combination
constitute a derivative work?
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TABLE OF CONTENTS
QUESTIONS 
PRESENTED............................................................................................................
 i
TABLE OF 
CONTENTS................................................................................................................ii
TABLE OF 
AUTHORITIES.........................................................................................................
 iv
STATEMENT OF THE 
CASE.......................................................................................................
 1
SUMMARY OF 
ARGUMENT......................................................................................................
 3
ARGUMENT..................................................................................................................................
 4
I.
CONNECTOR DOES NOT CONSTITUTE A DERIVATIVE WORK OF
DATABASE MANAGER 
2.0.............................................................................................4
A.
The literal definition of a “derivative work” as stated in the Copyright Act
has consistently been recognized as unworkably broad. 
.............................................4
B.
Courts have developed and applied important limitations to the definition of
derivative works in order to better achieve the fundamental goals of U.S.
copyright law 
...............................................................................................................6
1.
Under the “infringement test” Connector is not a derivative work of
Database Manager 
2.0..........................................................................................6
2.
Connector does not satisfy the “incorporation requirement” with respect to
Database Manager 
2.0..........................................................................................7
II.
CONNECTOR NEED NOT BE CONSIDERED TOGETHER WITH
DATABASE MANAGER 2.0, AND QUALIFIES AS AN INDEPENDENT
WORK OF AUTHORSHIP UNDER THE COPYRIGHT ACT 
........................................8
A.
Connector is individually copyrightable as a “computer program” under the
Copyright Act 
..............................................................................................................8
B.
The fact that Alpha intended for Connector to interoperate with Database
Manager 2.0 does not support a finding that the two works inherently form a
single derivative 
work..................................................................................................9
C.
Even if Connector were to be considered in combination with Database
Manager 2.0, the manner in which the two are combined does not constitute
“distribution” as is required according to the license under which Database
Manager 2.0 is distributed 
.........................................................................................11
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III.
EVEN IF CONNECTOR IS CONSIDERED TOGETHER WITH DATABASE
MANAGER 2.0, THE COMBINED WORK WOULD MORE CLOSELY
RESEMBLE A COLLECTIVE WORK RATHER THAN A DERIVATIVE
WORK 
...............................................................................................................................11
IV.
THE POLICY CONCERNS UNDERLYING COPYRIGHT LAW WILL BEST
BE SERVED BY A FINDING THAT CONNECTOR DOES NOT
CONSTITUTE A DERIVATIVE 
WORK.........................................................................13
CONCLUSION.............................................................................................................................
 14
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TABLE OF AUTHORITIES
C
ASES
Alcatel USA, Inc. v. DGI Techs., Inc.,
166 F.3d 772 (5th Cir. 1999) 
......................................................................................................
 7
Apple Computer, Inc. v. Formula International, Inc.,
725 F.2d 521 (9th Cir. 1984) 
......................................................................................................
 9
Computer Assocs. Int'l v. Altai, Inc.,
982 F.2d 693 (2d. Cir. 1992) 
......................................................................................................
 7
Emerson v. Davies,
8 F. Cas. 615 
(1845)....................................................................................................................
 5
Faulkner v. Nat'l Geographic Enters.,
409 F.3d 26 (2d Cir. 2005) 
.......................................................................................................
 12
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 
(1991)..................................................................................................................
 13
Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,
964 F.2d 965 (9th Cir. 1992) 
....................................................................................
 7, 10, 11, 14
Litchfield v. Spielberg,
736 F.2d 1352 (9th Cir. 1984) 
....................................................................................................
 6
Micro Star v. Formgen,
154 F.3d 1107 (9th Cir. 1998) 
................................................................................................
 7, 8
Montgomery v. Noga,
168 F.3d 1282 (11th Cir. 1999) 
..................................................................................................
 7
Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417 
(1984)..................................................................................................................
 13
United States v. Taxe,
540 F.2d 961 (9th Cir. 1976) 
......................................................................................................
 6
Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc.,
797 F.2d 1222 (3d Cir. 1986) 
.....................................................................................................
 9
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S
TATUTES
17 U.S.C.S. § 
101............................................................................................................
 5, 9, 10, 12
17 U.S.C.S. § 
102(a).................................................................................................................
 9, 13
T
REATISES
1-6 Nimmer on Copyright § 3.01 
(2005)........................................................................................
 5
C
ONSTITUTIONAL
P
ROVISIONS
U.S. Const. Art. I, § 8 
...................................................................................................................
 13
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No. 05-04001
IN THE
UNITED STATES COURT OF APPEALS FOR THE 13th CIRCUIT
SPRING TERM 2006
OMEGA, INC.,
Plaintiff-Appellant,
v.
ALPHA, CO.,
Defendant-Appellee.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NOWHERE
BRIEF FOR DEFENDANT-APPELLEE
STATEMENT OF THE CASE
Preliminary Statement
On June 1, 2005, Plaintiff-Appellant Omega Incorporated (“Omega”) filed a 
complaint in
the United States District Court for the Western District of Nowhere against 
Defendant-Appellee
Alpha Company (“Alpha”) demanding release of the source code for Alpha’s 
computer
application “Connector.” As grounds, Omega claimed that (i) the license under 
which Omega’s
computer application “Database Manager 2.0” is distributed requires all 
licensees (including
Alpha) to provide the source code to any derivative works of Database Manager 
2.0 that are
distributed; (ii) Connector must be considered together with Database Manager 
2.0, and their
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combination constitutes a derivative work of Database Manager 2.0; and (iii) 
even if Connector
is considered an independent work, it constitutes a derivative work of Database 
Manager 2.0.
The District Court ruled in favor of Alpha. Omega now seeks review of the 
District Court’s
ruling that Connector can be considered alone as an independent work, and that 
Connector is not
a derivative work of Database Manager 2.0. This Court granted review.
Statement of Facts
A software application called ”Account Manager” is commonly used in the 
financial
services industry, and is owned by Appellee Alpha Company. This application is 
100% an
original work of authorship by the founder of the company and made generally 
available in
object code form under a mass-market click-wrap licensing agreement. Account 
Manager has a
well-defined proprietary protocol that is used to interface with other Alpha 
products, including
two database programs.
A separate third-party database program called “Database Manager” has been 
developed
and made generally available for many years without charge under a license that 
requires the
source code to be delivered for all derivative works of Database Manager that 
are distributed.
Appellant Omega has customized Database Manager for its own purposes and has 
made the
source code to this customized version, called “Database Manager 2.0,” 
generally available
under the same terms as Database Manager.
Due to the increasing popularity of Database Manager 2.0, Alpha decided to 
develop a
connector program called “Connector,” that enables Account Manager to be used 
with Database
Manager 2.0. Database Manager 2.0 exposes functionality to third-party 
components by way of
a well-defined non-proprietary application programming interface (an “API”). 
Connector
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invokes the functionality provided by Database Manager 2.0 by loading Database 
Manager 2.0 at
execution time, and passing information to Database Manager 2.0 through the 
API. Alpha
makes the object code for Connector generally available under a mass-market 
click-wrap
licensing agreement. Omega discovered Connector through Alpha's website, and 
purchased a
number of licenses to the application from Alpha.
The click-wrap license agreement covering Connector does not grant licensees 
access to
the source code of the program, and prohibits licensees from assigning their 
rights and
obligations to an acquirer. Anticipating an acquisition offer, Omega brought 
suit against Alpha
demanding release of the source code alleging the theories described above.
SUMMARY OF ARGUMENT
The District Court’s ruling should be affirmed because Alpha’s Connector 
program is an
independent work, separate from Database Manager 2.0, and does not constitute a 
derivative
work of Database Manager 2.0. The definition of “derivative work,” as stated in 
the Copyright
Act, has been recognized by both judges and legal scholars as unworkably broad. 
Accordingly,
courts generally decline to find a derivative work unless the work would 
infringe the preexisting
work on which it is based.
Copyright infringement does not occur unless a new work incorporates 
copyrightable
expression that is substantially similar to that of a preexisting copyrighted 
work. Omega has
stipulated that Connector incorporates no copyrightable code from Database 
Manager 2.0. Thus,
because Connector would not infringe the copyright in Database Manager 2.0, 
Connector cannot
constitute a derivative work of that program.
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Although Alpha concedes that it ultimately intended for Connector to 
interoperate with
Database Manager 2.0, Connector constitutes an independent work of authorship 
as a “computer
program” and need not be considered together with Database Manager 2.0. In 
copyright law,
author intent is used to determine whether a work is a joint work, but has no 
bearing on whether
two separate works must be considered together as a derivative work. 
Furthermore, even if
Connector must be considered together with Database Manager 2.0, the combined 
program more
resembles a collective work as opposed to a derivative work, and in any case 
Alpha does not
“distribute” the combined work. Thus, Alpha’s conduct with respect to the 
combined program
would not be covered by the licensing agreement under which Database Manager 
2.0 is
distributed.
Finally, a determination that Connector constitutes a derivative work of 
Database
Manager 2.0 would contradict the fundamental policy underlying copyright law. 
Copyright is
intended to promote progress by providing incentives for authors to create new 
works. If
Connector is deemed a derivative work, software programmers will have no 
economic incentive
to write new programs that are compatible with preexisting programs. Such a 
result would not
promote progress in the software industry, and this Court should affirm the 
District Court’s
ruling.
ARGUMENT
I.
CONNECTOR DOES NOT CONSTITUTE A DERIVATIVE WORK OF DATABASE
MANAGER 2.0.
A.
The literal definition of a “derivative work” as stated in the Copyright Act has
consistently been recognized as unworkably broad.
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The Copyright Act states that:
A ‘derivative work’ is a work based upon one or more preexisting works, such as
a translation, musical arrangement, dramatization, fictionalization, motion 
picture
version, sound recording, art reproduction, abridgment, condensation, or any 
other
form in which a work may be recast, transformed, or adapted. A work consisting
of editorial revisions, annotations, elaborations, or other modifications 
which, as a
whole, represent an original work of authorship, is a ‘derivative work’.
17 U.S.C.S. § 101 (2005). However, due to the sheer breadth of this definition, 
both federal
courts and leading treatises on copyright law have addressed the need to narrow 
its application.
In Emerson v. Davies, 8 F. Cas. 615 (1845), Justice Story stated that “there 
are, and can
be, few, if any, things which, in an abstract sense, are strictly new and 
original throughout.
Every book in literature, science and art, borrows and must necessarily borrow, 
and use much
which was well known and used before.” Melville Nimmer reinforced this 
sentiment by writing
that:
In a broad sense, almost all works are derivative works in that in some degree
they are derived from pre-existing works. . . . It should be noted, however, 
that
the term derivative work in a technical sense does not refer to all works that
borrow in any degree from pre-existing works. A work is not derivative unless it
has substantially copied from a prior work.
1-6 Nimmer on Copyright § 3.01 (2005) (emphasis added). In our case, Omega 
stipulates that
Connector has neither “substantially copied” nor incorporated any copyrightable 
code from
Database Manager 2.0. As such, finding that Connector constitutes a derivative 
work of
Database Manager 2.0 would expand the definition of derivative works too far, 
and would thwart
the policy goals underlying U.S. copyright law.
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B.
Courts have developed and applied important limitations to the definition of
derivative works in order to better achieve the fundamental goals of U.S.
copyright law
1.
Under the “infringement test” Connector is not a derivative work of
Database Manager 2.0
One limitation that courts have imposed on the definition of derivative works 
has
traditionally arisen in the copyright infringement context. Specifically, a 
work will constitute a
derivative work “only if it would be considered an infringing work if the 
material which it has
derived from a preexisting work had been taken without the consent of a 
copyright proprietor of
such preexisting work.” Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 
1984)(quoting
United States v. Taxe, 540 F.2d 961, 965 n. 2 (9th Cir. 1976)). In our case, 
Alpha’s preparation
of Connector required no consent because Connector has taken no copyrightable 
expression from
Database Manager 2.0. Thus, Connector could not infringe Omega’s copyright in 
Database
Manager 2.0, and according to the standard set forth in Litchfield Connector 
should not be
considered a derivative work. Although this single factor should decide the 
issue, a full
discussion is warranted concerning whether Alpha’s unauthorized creation of 
Connector would
constitute an infringement of Omega’s copyright in Database Manager 2.0.
“To prove copyright infringement, the plaintiff must show (1) ownership of the
copyright, (2) access to the copyrighted work, and (3) substantial similarity 
between the
copyrighted work and the defendant’s work.” Litchfield, 736 F.2d at 1355. With 
respect to
ownership and access, Alpha concedes that Omega owns the copyright in the 
derivative work
Database Manager 2.0, and that Alpha had access to the source code of the 
program. However,
it has been stipulated that any substantial similarity between the code of 
Connector and Database
Manager 2.0 involves purely functional, and therefore uncopyrightable, 
elements. As such,
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Connector does not satisfy the third requirement for copyright infringement, 
and cannot be
considered a derivative work under the legal standard set forth above.
2.
Connector does not satisfy the “incorporation requirement” with respect to
Database Manager 2.0
Another limitation designed to curtail the expansive definition of derivative 
works is the
“incorporation requirement.” Specifically, “[a] derivative work must 
incorporate a protected
work in some concrete or permanent form.” Lewis Galoob Toys, Inc. v. Nintendo 
of America,
Inc., 964 F.2d 965, 967 (9th Cir. 1992)(internal quotations omitted); see also, 
Montgomery v.
Noga, 168 F.3d 1282, 1292 (11th Cir. 1999); Alcatel USA, Inc. v. DGI Techs., 
Inc., 166 F.3d
772, 788 (5th Cir. 1999). In the realm of computer software, an important 
aspect of this
limitation is the basic principle that the functional elements of a work are 
not protected by
copyright law. Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 714 (2d. 
Cir. 1992). The
District Court correctly found that any substantial similarity between 
Connector and Database
Manager 2.0 involves purely functional elements. Therefore, Connector does not 
and cannot
satisfy the incorporation requirement, because Galoob requires the 
incorporation of protected
expression. Accordingly, the fact that Connector incorporates no protected 
expression from
Database Manager 2.0 eliminates the possibility that Connector constitutes a 
derivative work.
Omega will argue that our case is more analogous to Micro Star v. Formgen, 154 
F.3d
1107 (9th Cir. 1998), as opposed to Galoob. In Formgen, defendant’s “MAP files” 
created new
levels for plaintiff’s video game and were found to be derivative works of the 
original game. Id.
at 1112. However, analogizing Connector to the MAP files in Formgen is 
inappropriate. First, it
is important to note that the infringed preexisting work in Formgen was the 
story of plaintiff’s
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original game. Id. The court found that defendants MAP files “described” new 
stories that were
“based upon” plaintiff’s original story, and so the MAP files were deemed to be 
“sequels” that
incorporated plaintiff’s preexisting protected story. Id. at 1111-1112. As 
such, although the
MAP files contained no computer code from plaintiff’s preexisting work, the MAP 
files
incorporated copyrightable elements of plaintiff’s story and were therefore 
considered derivative
works. Id. at 1112.
In contrast to the video games at issue in Formgen, neither Database Manager 
2.0 nor
Connector contain a copyrightable “story.” Connector consists of literal 
computer code that
invokes the functionality provided by Database Manager 2.0, and in no way 
“describes”
Database Manager 2.0. Analogizing Database Manager 2.0 to a “story,” and 
Connector to a
“sequel,” is inappropriate. Connector incorporates no copyrightable elements 
from Database
Manager 2.0, whether literal or non-literal. As such, Connector should not be 
considered a
derivative work under the Copyright Act.
II. CONNECTOR NEED NOT BE CONSIDERED TOGETHER WITH DATABASE
MANAGER 2.0, AND QUALIFIES AS AN INDEPENDENT WORK OF
AUTHORSHIP UNDER THE COPYRIGHT ACT
A.
Connector is individually copyrightable as a “computer program” under the
Copyright Act
“Copyright protection subsists . . . in original works of authorship fixed in a 
tangible
medium of expression, now known or later developed, from which they can be 
perceived,
reproduced or otherwise communicated, either directly or with the aid of a 
machine or device.”
17 U.S.C.S. § 102(a) (2005). In 1980, Congress adopted the Computer Software 
Copyright Act
and with it computer software became copyrightable. Whelan Assocs., Inc. v. 
Jaslow Dental
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Lab., Inc., 797 F.2d 1222, 1241 (3d Cir. 1986). As stated in the Copyright Act, 
“[a] ‘computer
program’ is a set of statements or instructions to be used directly or 
indirectly in a computer in
order to bring about a certain result.” 17 U.S.C.S. § 101 (2005). The Ninth 
Circuit confirmed
the availability of copyright protection for computer software in both source 
code and binary
code forms, because when written the computer program embodies expression. Apple
Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 524-525 (9th Cir. 
1984). Connector
clearly constitutes a set of statements or instructions, fixed in the form of 
code, that is used in
order to bring about a certain result, namely to allow compatibility between 
Database Manager
2.0 and Account Manager. As such, Connector, by itself, constitutes a “computer 
program” and
satisfies the requirements of an original work of authorship under the 
Copyright Act. Connector
should therefore be considered as an individual work, independent from Database 
Manager 2.0.
B.
The fact that Alpha intended for Connector to interoperate with Database
Manager 2.0 does not support a finding that the two works inherently form a
single derivative work
Omega has argued that because Alpha ultimately intended for Connector to be 
used with
Database Manager 2.0, the two programs must be considered together as a single 
derivative
work. However, as mentioned above, Connector alone qualifies as an independent 
“computer
program” as that term is defined in the Copyright Act. See supra Part II.A. 
This remains true
regardless of Alpha’s intent with respect to how the program will ultimately be 
employed by end
users. Furthermore, the definition of “derivative work” in Section 101 of the 
Copyright Act
makes no mention of intent. 17 U.S.C.S. § 101. Thus, requiring Connector to be 
considered
together with Database Manager 2.0 as a derivative work would be inconsistent 
with the
language of the Copyright Act, and Omega’s argument is without merit.
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The only significant body of copyright law in which the intent of the author 
determines
the status of the work involves whether a work constitutes a joint work. This 
is to be expected,
as the Copyright Act defines a “joint work” as “a work prepared by two or more 
authors with the
intention that their contributions be merged into inseparable or interdependent 
parts of a unitary
whole.” 17 U.S.C.S. § 101 (2005)(emphasis added). The copyright definition of a 
“derivative
work,” on the other hand, contains no such reference to intent. Id. The facts 
remain that
Connector incorporates no copyrightable expression from Database Manager 2.0, 
and Alpha
does not distribute Connector with Database Manager 2.0. Thus, according to 
current case law,
Connector is not a derivative work of Database Manager 2.0. See supra Part I.B. 
Basing the
ultimate determination of whether Connector constitutes a derivative work on 
the fact that Alpha
intended the program to work with Database Manager 2.0 would be inappropriate.
The Ninth Circuit recognized the significant problems that would arise if 
computer
programs designed to interoperate with preexisting programs were automatically 
deemed to be
derivative works of the preexisting programs. Lewis Galoob Toys, Inc. v. 
Nintendo of America,
Inc., 964 F.2d 965, 969 (9th Cir. 1992). In Galoob, the court described this 
issue in the context
of “spell-checkers that operate within existing word processors by signaling 
the writer when a
word is misspelled.” Id. The court went on to state that “[t]hese applications, 
as well as
countless others, could not be produced and marketed if courts were to conclude 
that the word
processor and spell-checker combination is a derivative work based on the word 
processor
alone.” Id. Appropriately, the court in Galoob held that the work under 
scrutiny did not
constitute a derivative work. Id. This same reasoning should be followed in our 
present case, as
Connector is precisely analogous to the spell-checker program described by the 
Ninth Circuit.
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Finally, Even if Omega’s legal argument regarding the importance of author 
intent were a
sound one, which it is not, its position would not prevail on the facts of our 
case. Connector was
created specifically so as not to copy Database Manager 2.0, and is made 
generally available for
purchase by the public as an independent piece of software. Thus, even if 
intent were a
determining factor, Alpha’s intent was clearly to distribute Connector as a 
separate commodity.
C.
Even if Connector were to be considered in combination with Database Manager
2.0, the manner in which the two are combined does not constitute “distribution”
as is required according to the license under which Database Manager 2.0 is
distributed
The click-wrap license under which Database Manager 2.0 is distributed requires 
the
release of source code only when licensees “distribute” derivative works of the 
program. Thus,
even if the combination of Connector and Database Manager 2.0 were considered a 
derivative
work, and even if Alpha itself combined Connector with Database Manager 2.0 in 
the process of
creating Connector, for quality testing purposes, Alpha would not be 
responsible for distributing
a derivative work. By extension, end users who combine Connector with Database 
Manager 2.0
are also not distributing the combined work. As such, the combination of 
Connector and
Database Manager 2.0 does not fall within the scope of the license for Database 
Manager 2.0.
III. EVEN IF CONNECTOR IS CONSIDERED TOGETHER WITH DATABASE
MANAGER 2.0, THE COMBINED WORK WOULD MORE CLOSELY RESEMBLE
A COLLECTIVE WORK RATHER THAN A DERIVATIVE WORK
Under the Copyright Act a “collective work” is defined as “a work . . . in 
which a number
of contributions, constituting separate and independent works in themselves, 
are assembled into a
collective whole.” 17 U.S.C.S. § 101 (2005). In our case, Database Manager 2.0 
existed and
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became popular before Connector, and therefore clearly constitutes a work that 
is “separate and
independent” from Connector. Furthermore, Alpha created Connector as an 
individual
component, makes Connector available to the public separately from any other 
computer
program, and Connector is independently copyrightable as a computer program. 
See supra Part
II.A-B. As such, Connector is also a separate and independent work. Thus, when 
Omega and
other end users download and execute Connector in conjunction with Database 
Manager 2.0, any
further copyrightable work that might be created is merely the assembly of two 
separate and
independent works. This assembly is defined as a “collective work” under the 
Copyright Act,
not as a “derivative work.”
It should be noted that under the Copyright Act, collective works constitute a 
sub-
category of compilations. 17 U.S.C.S. § 101 (2005)(definition for 
“compilation”). A
“compilation” is defined as “a work formed by the collection and assembling of 
preexisting
materials or of data that are selected, coordinated, or arranged in such a way 
that the resulting
work as a whole constitutes an original work of authorship.” Id. “The copyright 
in a
compilation extends only to materials contributed by the compiling author.” 
Faulkner v. Nat'l
Geographic Enters., 409 F.3d 26, 34 (2d Cir. 2005). Thus, to qualify for 
copyright protection, a
“collective work" must also constitute an “original work of authorship.” 17 
U.S.C.S. § 102(a)
(2005).
The combination of Connector and Database Manager 2.0 by end users may or may 
not
meet the traditionally low standard for originality applied in copyright case 
law. See generally
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). However, 
this
determination will have little bearing on Alpha’s position regarding the 
collective works issue.
Alpha simply contends that if the combination of Database Manager 2.0 and 
Connector must be
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categorized as a single work under the Copyright Act, that combined work more 
closely
resembles a “collective work” as opposed to a “derivative work.”
IV. THE POLICY CONCERNS UNDERLYING COPYRIGHT LAW WILL BEST BE
SERVED BY A FINDING THAT CONNECTOR DOES NOT CONSTITUTE A
DERIVATIVE WORK.
At its most fundamental level, the policy underlying U.S. copyright law is 
found in the
U.S. Constitution, which states that “Congress shall have the Power . . . to 
Promote the Progress
of Science and useful Arts, by securing for limited Times to Authors and 
Inventors the exclusive
Right to their respective Writings and Discoveries.” U.S. Const. Art. I, § 8. 
Thus, when called
upon to interpret the Copyright Act courts often cite the overarching 
importance of “promoting
progress.” For example, in Sony Corp. of America v. Universal City Studios, 
Inc., 464 U.S. 417
(1984), the U.S. Supreme Court emphasized that “[t]he monopoly privileges that 
Congress may
authorize are . . . intended to motivate the creative activity of authors and 
inventors.” Id. at 429.
It is therefore critical in our current case for the Court to achieve a result 
that would most
effectively promote progress in the field of computer software.
For the reasons described by the Ninth Circuit in Galoob, a judicial 
determination that
Connector is a derivative work of Database Manager 2.0 would serve only to 
hinder progress in
the software industry. See supra Part II.B. Expanding the scope of derivative 
works in this
manner would have the negative and far-reaching consequence of deterring 
computer
programmers from writing new software designed to interoperate with preexisting 
software. The
tremendous growth and success of the U.S. software industry is the direct 
result of creative and
original software developers laboring under the economic incentives offered by 
copyright.
Indeed, the current copyright system has proved very effective at encouraging 
innovation.
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Expanding the definition of derivative works to encompass works like Connector 
would have the
opposite effect by eliminating the incentives to create new programs designed 
to interoperate
with separate, preexisting programs. Such a legal development would intrude 
significantly upon
innovation in the software industry, and would directly contradict the goals of 
copyright law.
Furthermore, such a development would undermine many valuable attempts to 
achieve broader
compatibility and standardization among various types of computer programs, 
another important
policy goal.
“The progress of science and useful arts” cannot reach its full potential 
unless authors and
inventors are encouraged to build upon the work of others. If the authors of 
preexisting
computer programs have the automatic ability to control or prohibit all 
subsequent compatible
programs, it will be to the detriment of many would-be programmers. By 
extension, this will
only serve to harm the general public by reducing the total number of 
interoperable computer
programs available. Such a result would stifle rather than support the 
important policy goals
underlying the Copyright Act.
CONCLUSION
For the foregoing reasons, Defendant-Appellee Alpha respectfully requests that 
this
Court affirm the District Court ruling that Connector can be considered alone 
as an independent
computer program, and that it is not a derivative work of Database Manager 2.0.
Dated: March 15, 2006
Respectfully submitted,
_______________________
Thomas R. Graves
Counsel for Defendant-Appellee
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regards,
alexander.