MITEK HOLDINGS, INC.

v.

ARCE ENGINEERING CO., INC.

K. MICHAEL MOORE, District Judge.

This case came before the Court for a non-jury trial on Plaintiffs MiTek Holdings, Inc. and MiTek Industries, Inc.’s claim for statutory damages for copyright infringement. Having considered all the evidence, including the testimony of the witnesses, and being otherwise duly advised, the Court enters its Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52.

I. FINDINGS OF FACT

A. BACKGROUND

The parties in this case are in the business of supplying products and services to the wood truss industry. A wood truss is a group of beams that support roofs. A “layout program” is .a computer program that graphically draws an architectural blueprint, indicating the size and location of wood trusses on the walls of a structure. This case involves the Plaintiffs’ claim, pursuant to 28 U.S.C. § 1338, that a layout program produced by the Defendant, (the “Arce Program”) infringed on the copyrights to three of the Plaintiffs’ wood truss layout programs, (“Aces Layout Programs,” versions¹, 2 and³).

While any similarity between the programs is hotly disputed, the parties agree that all of the programs share the same author, Emilio Sotolongo (“Sotolongo”). Sotolongo is a largely self-taught computer programmer who began working in the software industry in 1983 on the strength of a karate video game he created after studying computer programming briefly at Miami Dade Community College. While working at Gangnail, a computer software company, Sotolongo was introduced to the wood truss industry.

In 1988, Sotolongo joined Advanced Computer Engineering Specialties, Inc., known as the “Aces/Bemax companies” (“Aces”) in Miami, where he was asked to develop a wood truss layout program incorporating the concept of “intersecting planes” to depict three-dimensional representations of truss layouts. At this time, another software company, Online, had developed a program known as “Trusstar” which used intersecting planes and was considered to be superior to existing layout programs that could only depict truss layouts two-dimensionally.

When he was hired, Aces offered Sotolongo two salary options. Sotolongo could receive a straight salary of $700 per week or an annual salary of $25,000, plus¹⁰ percent of the lease revenue generated by the layout program. Having recently married, Sotolongo testified that he chose the higher salary without a percentage of the program. However, Sotolongo testified that he had an informal, oral agreement with his employers that if the layout program was successful, Sotolongo would receive¹⁰ percent of the profits.

A few months after beginning work at Aces, Sotolongo visited a truss manufacturer in the Tampa area to observe Online’s Truss-tar program firsthand. Trusstar was to serve as a “guide” for the layout program Sotolongo was developing for Aces utilizing intersecting planes. Sotolongo testified that he also intended his program to be more “user friendly” than Trusstar, by logically following the steps a draftsman would go through in developing a layout by hand. Sotolongo testified that his father was a draftsman and that he was familiar with the manner in which layouts were created.

Most of the work on the Aces Program was completed by late 1988, when it was sent to a “beta,” or testing site, for debugging purposes. The program was generally distributed for publication purposes on or about March¹⁰, 1989, when Aces displayed it at a seminar to members of the industry. This program, known as Aces Version¹, proved to be extremely successful in a market that had grown increasingly competitive by early 1989, when

layout

programs were being marketed by other software companies, including Online, Alpine, Hydro-Air and Gang-Nail.

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After publishing Version¹ of the Aces Program, Aces directed Sotolongo to work on an improved version that would permit the layout to be printed. Version¹ did not have its own printing functions. Any layout produced by the program had to be input into a different program for printing.

Aces Version², first published on September 26, 1990, featured several improvements, including the ability to print, expanded memory to include more than 100 walls and 100 trusses and a rearrangement of the screen, from a three-box to a four-box display,, with a top bar main menu. The company published a third version of the program, Aces Version³, on March 13, 1991. Version³ included a “viewcut” feature, which color highlighted on the display screen the intersection of adjacent planes as each such intersection was defined.

On or about September, 1990, while Sotolongo was in the process of developing Aces Version³, MiTek’s President of Operations, Art Sordo, approached Sotolongo and offered him a job and a significant raise, to work for MiTek. Sordo wanted Sotolongo to develop an improved version of the Aces layout program for MiTek. Sordo assured Sotolongo that there would be no copyright problems as long as Sotolongo wrote the new program “from scratch.” The Plaintiffs offered Sotolongo a $70,000 annual salary as an employee or a $79,000 annual salary as an independent contractor. After mulling the offer, Sotolongo decided to remain with Aces. Sotolongo testified that his main concern was that he would not be able to work within the constraints of a large company bureaucracy. MiTek required its programmers to keep detailed notes and logs of the steps they took in writing their programs. Sotolongo testified that he worked without notes, often running complex sections of programs over in his mind. Antonio Arce, President of the Defendant Arce Engineering, testified that Sotolongo was one of the most talented programmers he had ever seen. According to Antonio Arce, Sotolongo was able to solve a programming problem in hours that would take a more experienced software designer a month to unravel.

Sotolongo testified that he reported his job offer from MiTek to his employers at Aces. Sotolongo explained his concerns and expressed his desire to remain with the company. But Sotolongo was also concerned about rumors MiTek planned to acquire Aces. Sotolongo testified that he was assured that there were no plans by MiTek to purchase Aces. Aces rewarded Sotolongo’s loyalty with a raise to $49,000 per year. On April¹, 1991, MiTek purchased Aces for $2.5 million and received an assignment of its copyrights to the Aces Layout Programs which are at issue in this litigation. Eugene M. Toombs, MiTek’s President and Chief Executive Officer, testified that MiTek’s primary motive in acquiring Aces was to obtain the rights to the Aces Layout Programs, principally written by Sotolongo.

Sordo, MiTek’s President of Operations, testified that Sotolongo contacted him after the sale was announced and asked if he could accept MiTek’s job offer. Sordo testified he told Sotolongo that the offer was no longer on the table because now that MiTek had acquired the Aces Layout Programs it had no need for Sotolongo. However, Sordo testified he told Sotolongo that MiTek wanted him to stay on and offered him a less lucrative salary package, including incentives.

According to Gilíes Bouchacourt, one of Aces’ co-owners, Sotolongo approached the four co-owners of Aces in approximately February 1991 and asked them to each pay him $50,000, representing¹⁰ percent of the $500,-000 each of the owners was to receive as their share of MiTek’s payment for the company. The Aces owners refused.

At about the same time, Antonio Arce contacted Sotolongo and met with him to find out if Sotolongo was interested in coming to work for Arce to develop a layout program. Arce knew that Sotolongo was the principal programmer of the three versions of the Aces layout Program.

Arce had an existing layout program but was dissatisfied with it because it could only work on Hewlett Packard equipment and was not compatible with IBM compatible personal computers. Arce told Sotolongo that he wanted him to develop a layout program to

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be used on IBM compatible equipment in the Windows environment.

Although extremely successful, the Aces programs were written for the MS-DOS operating system, which was rapidly being replaced by the more user-friendly Windows.

1

The Aces programs mimicked a Windows-type program by giving the user the option of either typing in commands by hand or using a mouse to activate functions of the program through the use of pull-down menus.

There are certain features which commonly appear in application programs written for the Windows environment. These features include the use of icons instead of words, a “frame” around the program which contains certain elements such as a “button” at the top left, scroll bar arrows at the right and the bottom, and a menu bar at the top. A Windows program also has certain file access features, help features, and printing features different from traditional DOS programs, the Plaintiffs’ Expert Witness, Dr. Randall Davis testified.

Antonio Arce testified that he instructed Sotolongo to develop the Arce layout program “from scratch.” Sotolongo testified that is exactly what he did. Sotolongo did not refer to any notes from the Aces Layout Programs because he had not taken any notes. Sotolongo also erased all source and object codes related to the Aces Layout Programs from his computer at home. All of the Aces Layout Programs were written in C language to operate within a DOS environment. The Arce Program was written in C language but was designed to operate in a Windows environment.

In August, 1991, Sotolongo completed the layout program for Arce and the Arce Program was placed at a Beta test site in North Carolina. This program has been called various names including the “TrussPro Layout Program, Version¹,” the “LayoutPro Layout Program” and the “FramePro Layout Program.”

Version¹ of the Aces Program is covered by Copyright Registration No. TX-3-175-806 (PX-1), effective November⁶, 1991.

2

Version² of the Aces Program is covered by Copyright Registration No. TX-2-934r-789 (PX-2), effective October³,1990.

3

Version³ of the Aces Program is covered by Copyright Registration No. TX-3-175-805 (PX-3), effective November⁶, 1991.

On November 15, 1991, within weeks of registering its assignment of copyrights and the actual copyrights to the original Aces layout program and Aces version³ of the layout program, MiTek filed this action. The Defendant filed its Answer and counter claim on December 23, 1991. The Defendant’s counter claim alleged that the Plaintiffs’ institution of this action constituted an abuse of process under Florida law.

On December⁹, 1993, the Court granted the Plaintiffs’ Motion to Dismiss the Defendant’s Abuse of Process counter claim (DE # 90). The Court found that an abuse of process cannot be alleged based solely on the alleged lack of merit behind a Complaint. Under Florida law, an abuse of process claim requires that

after

a suit is filed, a process of the court was improvidently used.

Blue Dolphin, Inc. v. United States,

666 F.Supp. 1538, 1541 (S.D.Fla.1987). Thus, the filing of a

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complaint, in and of itself, does not constitute an abuse of process.

On December⁹, 1993, the Court also granted the Plaintiffs’ Motion to Waive Jury Trial on the grounds that the Plaintiffs had elected not to seek actual damages but instead to limit themselves to statutory damages provided by 17 U.S.C. § 504(c) and costs and attorneys’ fees, provided by 17 U.S.C. § 505. It is the law of this Circuit that when an equitable copyright infringement action seeks only minimum statutory damages and injunctive relief, there is no constitutional or statutory right to a jury trial.

Twentieth Century Music Corp. v. Frith,

645 F. 2d 6, 7 (5th Cir.1981);

Cable/Home Communication v. Network Productions,

902 F. 2d 829, 852-53 (11th Cir.1990).

The Court held a 6-day bench trial, December 8-15, 1993. At the close of the trial, the Plaintiffs fled a Motion for a Preliminary Injunction seeking to enjoin the Defendant from using, selling, reproducing or distributing the Arce Program.

B. ALLEGED SIMILARITIES AT ISSUE

The source code is a computer program written in a programming language understandable to the programmer. The object code is a translation of the source code into a binary language of zeroes and ones understandable by the computer. MiTek retained Dr. Randall Davis, Professor of Engineering and Computer Science at the Massachusetts Institute of Technology, as its trial expert to review and compare the source codes of Aces Version³ to the Arce Trusspro source code. Dr. Davis testified that there was an approximately² percent similarity between the source codes of both programs.

4

The Defendant Arce Engineering retained Dr. Raimund Ege, Associate Professor of Computer Science at Florida International University, as its trial expert. Dr. Ege testified that there was a less than¹ percent similarity between the source code and object code of Aces Version³ and the Arce program.

The Plaintiffs also retained another expert, Thomas Zgraggen, a civil engineer with a background in architectural design software, to examine any similarities in the ways the programs interact with the user, including the command structure and graphics, such as the menu items and command choices displayed on the screen. These features are known as the “non-literal” aspects of the program, while the source code and object code are known as the “literal” aspect of the program.

5

As a preliminary matter, the Court finds that its inquiry in this case is limited to the nonliteral elements of the program, that is, the programs’ visual display, user-interface and command tree structure. The Plaintiffs concede that based upon their expert Dr. Davis’ analysis, only² percent of the literal elements of the programs, that is the source code and object code, are substantially similar. Accordingly, the Plaintiff concedes that, as a whole, the literal elements of both programs are not substantially similar. The Plaintiffs identified 18 non-literal elements of the Aces Layout Programs that they contend are protected by their copyrights, and have been infringed by the Arce Program. They are as follows:

1. The main menu command system, including the main menu and submenu command tree structure. (Versions 1, 2 and 3).

2. The submenu command and function organization. (Versions 1, 2 and 3).

3. The fact that the program had been developed for IBM and compatible personal computers. Existing layout programs had been developed for other, more expensive computers.

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4. The program’s ability to automatically fit the drawing into the space available on the screen, using as much of the screen as possible, referred to as “dynamic sizing” in testimony.

5. The “pop-up” 15-key number pad that appears in the drawing area of the screen whenever necessary, enabling the user to enter numbers with a mouse rather than via keyboard entry.

6. The program’s short-hand method of entering distances using the mouse. Distances are entered in feet, inches, and sixteenths of inches. Rather than enter the numbers by pointing at the pop-up key number pad and clicking on the respective numbers, when either or both of the latter two distances is zero, the user can simply click the right button on the mouse, thereby entering zeroes without requiring the use of a keypad.

7. Highlighting items selected by the viewer for greater identification and ease of use.

8. Expression of work lines in “UDLR” format—up-down left-right.

9. Expression of work planes without reference to the real walls, the roof, or the ceilings of the building. This feature makes it easier to draw layouts of complicated structures.

10. Description of planes using trapezoids, rather than with arrows or other methods.

11. The use of the word “cut” to refer to the intersection and boundaries of the planes.

12. Use of a reference line to position trusses.

13. Use of a rubber band line to select portions of the drawings for certain editing functions.

14. Expressing 3-D views of the drawing by entry of two angles, rather than by entering distance, height, and view of the structure.

15. A four-box screen organization. (Versions 2 and 3).

16. Use of virtual memory to increase the capacity of the application software. (Versions² and³).

17. Entry of walls in “free” format, rather than just clockwise or counter-clockwise sequence.

18. Editing capabilities. (Versions 2 and 3).

II. CONCLUSIONS OF LAW

The purpose of the copyright and patent laws, as expressed in the applicable clause of the U.S. constitution, is “[t]o 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, el.⁸;

Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc.,

600 F. 2d 1184, 1187 (5th Cir.1979).

6

The Copyright Act of 1976 (“Copyright Act”), 17 U.S.C. § 101

et seq.

applies this protection to various literary and non-literary works, including computer programs. 17 U.S.C. §§ 101, 102(a) (1982);

Apple Computer, Inc. v. Formula Int’l Inc.,

725 F. 2d 521, 524 (9th Cir.1984). Computer programs are protected by the following provisions of 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. § 101 (1982).

That Act goes on to state:

Copyright protection subsists, in accordance with this title, in original works of authorship

fixed in any 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.

Id. at § 102(a) (emphasis supplied).

Most courts have determined that copyright protection extends not only to the literal elements of a program, i.e. its source

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code and object code, but also to its “nonliteral” elements, such as the program architecture, structure, sequence, organization and computer-user interface.

See, e.g., Engineering Dynamics, Inc. v. Structural Software, Inc.,

26 F. 3d 1335, 1341 (5th Cir. July 13, 1994),

Computer Assocs. Int’l v. Altai Inc.,

982 F. 2d 693 (2d Cir.1992);

Gates Rubber Co. v. Bando Chemical Indus.,

9 F. 3d 823 (10th Cir.1993);

Lotus Development Corp. v. Paperback Software Int'l,

740 F.Supp. 37 (D.Mass.1990)

(Lotus I). But see Digital Communications v. Softklone Distributing,

659 F.Supp. 449, 455 (N.D.Ga.1987). In other words, the holder of a valid copyright is entitled to protection for both the text of the commands the programmer chooses to achieve a certain result and to the way the program looks, sounds and interacts with the user. In determining whether a copyright of an individual work has been infringed, courts must first separate the protectable elements of the work from the non-protectable elements. In the seminal case of

Baker v. Selden,

the Supreme Court held that ideas, as a general rule, are not protectable by copyright, while the individual expression of those ideas is protectable. 101 U.S. 99, 25 L.Ed. 841 (1880). The Copyright Act explains the term “idea” includes “proeedure[s], proeess[es], system[s], method[s] of operation, concept[s], principiéis], or diseover[ies].” 17 U.S.C. § 102(b) (1982).

Courts have had particular difficulty distinguishing between idea and expression in the context of computer programs, especially in the area of nonliteral aspects of the program, such as its user interface and command tree structure.

See, e.g., Engineering Dynamics, Inc.,

26 F. 3d at 1345;

Cable/Home Communication Corp. v. Network Productions,

902 F. 2d 829 (11th Cir.1990);

Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc.,

797 F. 2d 1222, 1236-40 (3d Cir.1986),

cert. denied,

479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d 831 (1987);

Apple Computer, Inc. v. Franklin Computer Corp.,

714 F. 2d 1240, 1252-54 (3d Cir.1983),

cert. dismissed,

464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984).

The U.S. Court of Appeals for the Eleventh Circuit has yet to directly address the copyrightability of nonliteral elements of computer programs.

7

Other Circuits have taken different approaches to the problem.

See, e.g., Whelan,

797 F. 2d at 1222 (program’s intended purpose is its “idea,” all other elements are protectable);

Altai

982 F. 2d 693 (2d Cir.1992) (program is broken into its abstract elements; non-protectable elements are discarded; remaining elements are compared with alleged infringer, (“abstraction-filtration-comparison test”));

Gates Rubber,

9 F. 3d 823 (10th Cir.1993) (same);

Lotus Development Corp. v. Paperback Software International,

740 F.Supp. 37 (D.Mass. 1990) (three-part test designed to separate idea from expression and determine whether expression is substantial part of the work);

Brown Bag Software v. Symantec Corp.,

960 F. 2d 1465 (9th Cir.1992) (extrinsic-intrinsic test).

The approach that appears to have gained the widest acceptance is the “abstraction-filtration-comparison” test, first articulated by the Second Circuit in

Altai

and most recently adopted by the Fifth Circuit in

Engineering Dynamics

and by the Tenth Circuit in

Gates Rubber. The test was proposed originally by Prof. Nimmer in his treatise on copyright as a way to “help a court separate ideas [and processes) from expression and eliminate from the substantial similarity analysis those portions of the work that are not eligible for copyright protection.”³ Nimmer, § 13.03[F] at 13-102.17.

In

Gates Rubber,

the Tenth Circuit summarized the test as follows:

First, in order to provide a framework for analysis, we conclude that a court should dissect the program according to its varying levels of generality as provided in the abstractions test. Second, posed with this framework, the court should examine each level of abstraction in order to filter out those elements of the program which are unprotectable. Filtration should eliminate

*1578

from comparison the unprotectable elements of ideas processes, facts, public domain information, merger material, scenes a faire material and other unprotectable elements suggested by the particular facts of the program under examination. Third, the court should then compare the remaining protectable elements with the allegedly infringing program to determine whether the defendants have misappropriated substantial elements of the plaintiffs program.

9 F. 3d at 834. The abstraction portion of the test dates back to an opinion issued by Judge Learned Hand, where he described breaking down a literary work into its elements as a means of separating a writer’s ideas from his expression.

Nichols v. Universal Pictures Corp.,

45 F. 2d 119 (2d Cir.1930),

cert. denied,

282 U.S. 902, 51 S.Ct. 216,

75

L.Ed. 795 (1931).

Unfortunately, Judge Hand’s abstraction test is not as easily, applied to computer programs as it is to literary works, such as books or films, because the mediums are so different. Unlike a computer program, the eopyrightability of a film applies solely to its “user-interface,” that is the images and sounds the viewer perceives. In contrast, a computer program has two distinct elements of expression—the literal aspects, including the source code and object code, which tell the computer what .to do, and the nonliteral aspects, such as the sights and sounds the program generates on the screen. The

Gates Rubber

case sets forth a uniform, six-part abstraction test for breaking down a computer program’s literal elements.

8

Gates Rubber,

at 835. However, this test is not helpful for this Court’s analysis, which focuses on the nonliteral elements of the program.

The Fifth Circuit in

Engineering Dynamics

provided some guidance for the abstraction of nonliteral elements of a computer program. The court found that there is a “spectrum” of copyrightable material in non-literal elements of computer programs, ranging from the ‘blank form’ that epitomizes an uncopyrightable idea, through a “high expression, like that found in some computerized video games.”

Engineering Dynamics,

at 1344. The court found that “[i]n the middle of the abstraction spectrum sit user interfaces such as that of Lotus 1-2-3, whose menu structure, including its long prompts, contains numerous expressive features.”

Id.

at 1344, citing

Lotus I,

740 F.Supp. at 65-66. Thus, the distinctive garb of a computer-generated Ninja will be afforded the highest copyright protection, while a simple computer prompt asking the user to fill in the blank warrants the least. In the middle, are programs which require the input of significant amounts of information in a common, computer format. The Court finds the programs at issue in this case fall into this middle range of expression.

Once a program has been broken down into its abstract elements, the next step is to “filter out” the unprotectable elements to obtain a core of protectable expression. In addition to ideas, copyright protection is not afforded to processes, methods or scientific discoveries. Other materials not subject to copyright include facts, information in the public domain

9

, and

scenes a faire,

i.e., expressions that are common to a particular subject matter or are dictated by external factors

10

.

Engineering Dynamics,

at 1343. The distilled core of protectable expression is then compared to the alleged infringing program to determine whether it has adopted substantial elements of the protectable core of the copyrighted program.

Gates Rubber,

at 834.

When comparing the core of protectable elements of the copyright-holder’s program to the alleged infringer, the Court will

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employ the substantial identicality standard applied by the Ninth Circuit to nonliteral elements of computer programs, such as visual displays.

See Apple Computer, Inc. v. Microsoft Corp.,

821 F.Supp. 616, 619 (N.D.Cal.1993).

See also Sid & Marty Krofft Television Productions, Inc. v. McDonalds Corp.,

562 F. 2d 1157, 1168 (9th Cir.1977);

Rachel v. Banana Republic, Inc.,

831 F. 2d 1503, 1507 (9th Cir.1987). The Court finds this standard is best suited to maintaining a balance between the need to protect copyright holder’s works and the need to permit innovation in the software industry.

In order to prevail on a claim of copyright infringement, the plaintiff must show: (1) ownership of a valid copyright, and (2) copying by the defendant of protected components of the copyrighted material.

Feist Publications v. Rural Telephone Service Co.,

499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). A certificate of registration, if timely obtained, constitutes prima facie evidence of the validity of the copyright. 17 U.S.C. § 410(c). As discussed in the Court’s Findings of Fact, the Plaintiffs hold valid copyrights to the Aces Layout Programs. Thus, the Plaintiffs have satisfied the first prong of the test.

Copying by the Defendant of a copyrighted computer program may be proven in one of two ways. The first method is with direct evidence of copying. In this case, the Plaintiffs do not rely on direct evidence of copying. The second means of proving copying is through circumstantial evidence. To prove copying by circumstantial evidence, a plaintiff must show: (1) access to the copied program by the defendant; and, (2) substantial similarity between the two programs.

Gates Rubber,

at 832 (citations omitted).

In this case, the Defendant had access to all versions of the Aces Layout Programs through Sotolongo. Sotolongo was the principal author of all the three programs while he was employed at Aces. Sotolongo was familiar with both the user interface and the source code and object code of the Aces Layout Programs during the time he was employed by the Defendant. Thus, through Sotolongo the access element has been met.

See Gates Rubber v. Bando American, Inc.,

798 F.Supp. 1499, 1508-09 (D.Colo.1992) (access by defendants was shown by the fact that the defendants’ employees had previously been employed by the plaintiff).

The question for the Court to resolve is whether the Arce program is

substantially similar

to any or all of the Aces Layout Programs, Versions¹, 2 or 3. First, the Court must determine which aspects of the user-interface and command structure of the Aces Layout Programs are entitled to copyright protection. To make this determination, the Court will apply the abstraction-filtration-comparison test of

Altai

and

Gates Rubber. Second, the Court will compare the core of protected expression in the Aces Layout Programs to the Arce Program and determine if they are substantially similar. Third, if the Court does find substantial similarity between certain elements of the programs, the Court will determine if the Defendant misappropriated a substantial portion of Plaintiffs programs.

A. ABSTRACTION

As discussed

supra,

the Plaintiff in this action has identified 18 non-literal elements of its layout programs that it contends are entitled to copyright protection and which Defendant infringed upon. Accordingly, the Court does not need to undertake the abstraction portion of the test and will limit its inquiry as to the copyrightability of these 18 elements designated by the Plaintiff. Instead, the Court will move to the next step, filtration, and determine if the 18 elements are entitled to protection or are non-copyrightable based upon the doctrines of merger, public domain or scenes a faire.

B. FILTRATION

1. The main menu command system, including the main menu and submenu command tree structure. (Versions¹, 2 and³).

2. The submenu command and function organization. (Versions 1, 2 and 3).

When the any version of the Aces Layout Programs and Arce Programs are activated, the user is presented with similar

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looking screens. Both programs present a rectangular box with two separate menus

11

of command choices, one across the top and another along the right hand side of the screen. The remaining area inside the rectangle is reserved for work space, where the user will draft the layout. The first difference between the expression of the two menus is that the Aces Layout Programs depict their menu and submenu choices as words while the Arce Program depicts its menu choices as pictorial representations of the commands, or “icons.” Here, the Plaintiffs seek copyright protection for the order in which its program requests information from the user in the design of a layout, also known as the “command structure” or “command tree structure.”

The Defendant argues that the method the program follows to complete its task is a process and is thus not entitled to copyright protection.

Baker

at 104;

Gates Rubber,

9 F. 3d at 837. In

Baker,

the Supreme Court held that an accounting system described in a book was not entitled to copyright protection, however, the author’s

description

of the process was copyrightable. 101 U.S. at 104. Subsequent courts have held that an author’s description of a process is copyrightable as long as it incorporates some level of originality.

See Gates Rubber

at 837, citing

Applied Innovations, Inc., v. Regents of the Univ. of Minnesota,

876 F. 2d 626, 636 (8th Cir.1989);

Apple Computer, Inc. v. Franklin Computer Corp.,

714 F. 2d 1240, 1250-51 (3d Cir.1983),

cert. dismissed,

464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984).

The Plaintiff’s expert witness, Zgraggen tested the command structure of both the Arce Program and the Aces Layout Program Version³, by using each program separately to perform the same roof truss design on a simple, one-story, L-shaped ranch house. Zgraggen testified that both programs went about the task of designing the roof trusses in an almost identical manner, calling for the user to input specific information at the same point and achieving the same result.

The Court finds the method the Aces Layout Programs follow, including the menu and the sub-menu command tree structure, is a process that is not entitled to copyright protection. The Court agrees with the Defendant’s contention that the means by which the Aces Layout Programs undertake their task of drafting roof truss plans mimic the steps a draftsman would follow in designing a roof truss plan by hand.

The Court has examined the way the menu structure and command tree structure appear visually on the screens of both the Aces Layout Programs and the Arce program and has concluded that the programs are not substantially similar. The fundamental difference between the visual depiction of the programs is that the Aces program uses words and abbreviations to represent individual commands, while the Arce program, designed to operate in the Windows environment, uses icons to represent the commands