11th Cir. Pattern Jury Instr. (Civil) 9.22

For a claim of copyright infringement for software, you must apply the same

elements as in any other copyright -infringement claim, which include proof of

access to the copyrighted work and substantial similarity. But even if you find that

[name of defendant]’s software is substantially similar to [name of plaintiff]’s

software, not all similarity supports a claim of infringement. And even if [name of

defendant]’s software is literally (or even nonliterally) similar to [name of

plaintiff]’s software, that isn’t necessarily enough to establish copyright

infringement. You must determine whether there is “substantial similarity”

between [name of defendant]’s allegedly infringing program and the original

elements of [name of plaintiff]’s software that the law protects.

To do that, you’ll need to filter [name of plaintiff]’s copyrighted computer

program to decide what part of [his/her/its] copyrighted software program is

protected by the law and what part is not protectable.

You’ll need to break down the allegedly infringed program – [name of

plaintiff]’s copyrighted work – into its structural parts so you can consider the

individual elements of [name of plaintiff]’s copyrighted work. Then you’ll need to

determine which of the elements that [name of plaintiff] claims have been

infringed are protected by the law. The law doesn’t protect the following elements,

and you should filter these out:

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1. elements that are only an idea;

2. elements required based only on logic and efficiency;

3. elements required because of hardware or software, computer-

industry programming, and practices or elements taken from the

public domain; or

4. other elements of the program component under consideration that

the law doesn’t protect.

Once you’ve applied this filter to eliminate items from consideration that

aren’t legally protectable, you’re entitled to include in your consideration for

copyright infringement both those items in [name of defendant]’s software (if any)

that are literally similar as well as those elements that aren’t literally an exact copy

of the copyrighted work.

But even if you find that [name of defendant] intentionally included literal

and nonliteral copies of [name of plaintiff]’s copyrighted software , that similarity

must relate to [name of plaintiff]’s copyrighted software or components of

software that are legally protectable.

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of defendant]’s software has elements that are literally

or nonliterally similar to any portion of [name of plaintiff]’s copyrighted

software?

Answer Yes or No _____________

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