Navitaire Inc v Easyjet Airline Co. and BulletProof Technologies, Inc., is a decision by the England and Wales High Court of Justice (Chancery Division). The case involved a copyright infringement claim brought by Navitaire Inc. ("Navitaire") against EasyJet Airline Company ("EasyJet") and Bulletproof Technologies, Inc. ("Bulletproof") with regards to software used to construct an airline booking (ticket reservation) system. Curiously, it was not claimed that Defendant had access to the original source code or that Defendant's source code resembled Plaintiff's in any way.
The case affirms that it is only the source code or object code of a program - i.e. the underlying framework - that may be protected by copyright. The programming language used to create the program, as well as the program's functional aspects and interfaces, are not to be protected. This is because computer programs are unique as one can achieve a similar result through different means. However, artistic aspects may be protected. That is, copyright subsists in visual images created as icons or graphical user interfaces (GUIs) and the Directive on the Legal Protection of Computer Programs will not apply to these images. Specific to this case, it was held that writing original source code that results in a similar or an identical function to another program does not result in infringement of that program.
Navitaire also confirmed the notion that an injunction would be granted only where it wasn't oppressive.
The Navitaire Court's approach has been confirmed in other opinions. In the Court of Appeals' 2007 decision of "Nova Productions Limited vs. Mazooma Games Limited", the court held that under a program did not infringe on another where it produces similar results but has different underlying source code.
Attorneys Henry Carr QC, Mark Vanhegan and Anna Edwards-Stuart (instructed by Field Fisher Waterhouse) for the Claimants
Richard Arnold QC and Brian Nicholson (instructed by Herbert Smith) for the Defendants
The Parties Claimant: Navitaire Inc. ("Navitaire") developed a system called "OpenRes," which is a ticketless airline booking application used by a number of airlines. Users do not receive a ticket, but are given a single reference number to check-in at the airport with. Navitaire owns the copyright in various works that make up the source code of the OpenRes software. OpenRes is predominantly coded in COBOL.
Navitaire's predecessors were Open Skies, Inc. and the Open Skies Division of Hewlett Packard. Open Skies coded and developed the web interface for OpenRes, called "TakeFlight". The court refers to Navitaire and Open Skies, Inc. collectively as Navitaire. The "TakeFlight" module consists only of source code.
Defendant 1: EasyJet Airline Co. ("Easyjet") is a well-known low-cost airline. Navitaire's predecessors had granted Easyjet a license for OpenRes. Defendant 2: BulletProof Technologies Inc. ("BulletProof") is a software developer located in California, who was hired by EasyJet to code the allegedly infringing system, "eRes".
Facts Navitaire developed an airline booking system called "OpenRes". Its predecessor (Open Skies) had licensed the software to easyJet. easyJet did not have access to the underlying code, and Navitaire does not suggest that easyJet or BulletProof had access to "OpenRes". However, after studying the functionality of OpenRes, easyJet and Bulletproof developed a system called "eRes" and also a web interface that was substantially indistinguishable from OpenRes. easyJet does not dispute the allegation that it wanted a new system that was substantially indistinguishable from OpenRes' interface. Also, it is not disputed that the underlying code of eRes does not resemble OpenRes' codes at all. easyJet created its program by studying and observing how Navitaire's system worked.
Although the code is different, "eRes" acts upon identical or very similar inputs and produces similar results as "OpenRes". Thus, Navitaire filed an action in copyright law based alleging copyright infringement based on "non-textual copying." Specifically, Navitaire claimed that the similarity of the "business logic" (that is the overall look and feel of the software) and functionality of the software rose to the level of "non-textual copying."
Also, with regards to "TakeFlight" it is known that easyJet copied and modified on several occasions to fix bugs, provide for the display of promotions, etc. and to provide the foreign language interfaces as the code was not internationalized. Navitaire alleges easyJet breached the license and again is alleging "non-textual copying" of the software when easyJet produced a user interface with the same "look and feel" of TakeFlight.
As a general matter, the Court stated that: "To emulate the action of a piece of software by the writing of other software that has no internal similarity to the first but is deliberately designed to 'look' the same and achieve the same results is far from uncommon. If Navitaire are right in their most far-reaching submission, much of such work may amount to the infringement of copyright in the original computer program, even if the alleged infringer had no access to the source code for it and did not investigate or decompile the executable program."
Non-Textual Copying Non-Textual Copying can be raised when access is not an issue. There are three aspects of non-contextual copying: adoption of the "look and feel" of the software (here, OpenRes) detailed copying of many of the individual commands entered by the user to achieve particular results copying of certain of the results, in the form of screen displays and of 'reports' displayed on the screen in response to prescribed instructions
The Interfaces The OpenRes system consists of a database as well as a series of programs that manipulate the data. Each interface consists of single and complex commands that were entered by the user and the relevant display screens.
These different interfaces were:
the terminal user interface - what the travel agent interacts with by typing commands; this interface takes the commands an Agent has input, recognizes the commands, and then formats the result of those commands to be displayed on the 'green screen' (aka the terminal user interface) the Fares and Scheduling interface - the appearance of the graphical user interface (GUI) at the database administrator's terminal Internet User Interface or TakeFlight interface- the screens that the user interacts with on the Internet on their personal computer structure of the OpenRes database and the names of objects stored within
Navitaire's Allegations With regards to the databases, Navitaire claimed copyright infringement occurred at two points. (1) In transferring or 'migrating' the data contained in OpenRes databases to the new easyRes system. easyJet made interim copies of existing OpenRes databases that they were not granted permission to do. (2) easyJet and BulletProof used their knowledge of the OpenRes databases to design eRes databases such that they infringed copyright of the structure of the program. The court did not find infringement since the databases are not manipulated in the same way as OpenRes.
Navitaire alleged eRes violated copyright when they replicated the overall "look and feel" of the software (i.e. "business logic"); relied on and required identical or similar commands to be entered by an operator as in the OpenRes system; copying the icons displayed in the GUI; and copying the text-based screen displays as well as other results produced by the software.
Four Classes of Relevant Copyright Works There were four classes of relevant copyright works that were identified:
literary works: comprising the title, form, and nature of each of the literary codes represented by the user command codes complex commands - literary codes were divided into simple commands and complex commands, with complex commands allowing varying arguments. Dr. Hunt described these as being ones "where the user enters a mixture of command characters and data and has a number of sub-options or choices." all OpenRes user command codes ("compilation") - this was an alternate legal basis to allege that eRes commands are identical to or similar to OpenRes commands the layouts of particular screens of the terminal user interface
Summary of Allegations
In summary, the issues are as follows. Navitaire contend that copyright subsists in the command set as a copyright work distinct from the source code. This claim has a number of aspects: (i) the collection of commands as a whole is entitled to copyright as a 'compilation'; (ii) each of the commands is a copyright work in its own right; (iii) alternatively, each of the 'complex' commands is a work in its own right. As to the displays, Navitaire contend that (i) in respect of the VT100 screen displays, the 'template' (fixed data and layout of variable data) is a separate copyright work for each display and (ii) certain GUI screens on the separate Schedule Maintenance module are copyright works as they stand and have been copied. Then it is said (and this is a quite distinct allegation) that the similarity exhibited by eRes to OpenRes in the eye of the user is such that there has been 'non-textual copying' of the whole of the source code. This is said to be strictly analogous to taking the plot of a book: an author who takes the plot of another work and copies nothing else will still infringe copyright if a substantial part of the earlier author's work is represented by that plot, and the same goes for computer programs: John Richardson Computers v Flanders FSR 497 (Ferris J).
easyJet's Position
easyJet accepts that copyright subsists in the source code of OpenRes. However, they stressed to the court that with regards to the user interface, the only question to be considered was whether a substantial part was taken since none of the code was directly copied. eRes only used some of the command names, which is not a substantial part of the source code. They did not agree that copyright subsists in a command set either as individual commands or as a compilation, since these were not works to begin with. Moreover, the graphical displays were also not works. So, they contended that "non-contextual copying" would extend protection in copyright to matters that cannot legitimately be covered by copyright. That is, it was argued that the claim went to the "functional idea of the program, rather than to the expression of that idea in software."
Issue(s) Does replication of the "look and feel" of a computer program - using similar inputs and that produces similar outputs - count as "non-textual" copying of a computer program? That is, can the "business logic" of a program be protected? Does copyright subsist in single word commands, complex commands, or the collection of commands as a whole? If yes, which ones? Does copyright subsist in graphical screen displays and icons? If so, which ones?
Holding (1) NO - When it comes to computer programs, copyright law does not protect against "non-textual" copying.
As long as the underlying source code is different, there is no problem if the ultimate Look and Feel are similar. In the present case, the fact easyJet didn't have access aided the court in finding no infringement. Moreover, the court took into account that the peculiar aspect of computer programs is that there are several different ways of producing a similar or identical result. So, the "business logic" (i.e. functionality) of a program can not be protected by copyright law. Finding otherwise, would extend copyright unjustifiably.