11th Cir. Pattern Jury Instr. (Civil) 9.23

In alleged copyright infringement for software, some parts of the software

are required because of external factors. These external factors include:

1. the need for the computer program to perform certain functions in a

specific computing environment;

2. the mechanical specifications of the computer on which a program

is intended to run; and

3. compatibility requirements of other programs that the program is

designed to perform in conjunction with.

So if you find that [name of defendant] has copied a portion of [name of

plaintiff]’s software, but that [name of defendant] used those elements because of

external factors such as compatibility, the external considerations may mean

there’s no infringement.

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of defendant] copied any portion of [name of

plaintiff]’s copyrighted software?

Answer Yes or No _____________

[If you answer “No,” you don’t need to answer the following

question.]

2. That [name of defendant]’s use of elements of [name of plaintiff]’s

copyrighted software is a result of external factors such as the requirements

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of the specific computing environment, technical specifications, or

compatibility?

Answer Yes or No _____________