A Square Peg in a Round Hole: The Proper Substantial Similarity Test for Nonliteral Aspects of Computer Programs

Since the Third Circuit\u27s decision in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc. expanded copyright protection to include the nonliteral aspects of computer programs, courts have struggled to find a way to properly determine substantial similarity between programs, a necessary element of copyright infringement. In the Third Circuit, courts dissect competing programs and compare them in a one-step procedure. The Ninth Circuit uses a two-part process to objectively, and then subjectively, compare program elements. In Computer Associates International, Inc. v. Altai, Inc. the Second Circuit recommended a three-part substantial similarity test to filter out unprotectable elements and compare the remaining core expression. This Comment argues that existing tests are inadequate because they fail to consider programs as a whole and use inappropriate analytical techniques resulting in the loss of protection for nonliteral elements. This Comment proposes the use of a two-tiered substantial similarity test that considers the computer program as an integrated whole and as separate components. This approach would enable courts to fully protect programmers\u27 rights in the original nonliteral aspects of their computer programs