In a case illustrating copyright abuse of standard software protocols, Cisco Systems filed a lawsuit to prevent its competitor, Arista Networks, from building competing Ethernet switches that rely in part on commands Cisco argues it initially developed. A jury rightly found that Arista was not liable for copyright infringement based on a doctrine known as “scènes à faire.” Scènes à faire is a time-honored rule that prohibits copyright in materials that are too standard to really qualify as creative. For
example, the expressive descriptions of Hogwarts—the shifting staircases, the talking paintings and so on—in J.K. Rowling’s Harry Potter books may be copyrightable, but not the idea that there would be a school for magicians.
Cisco is trying to get the jury finding overturned by the Federal Circuit Court of Appeals. EFF filed an amicus brief in December 2017 supporting Arista that makes two key points. First, where the collection of commands in question is simply a group of standard, highly functional commands, arranged based on logic and industry standards, it shouldn’t be copyrightable at all. Second, any copyright that does exist must be sharply limited, as a matter of law and good practical policy. Without such limits, the software industries will find themselves embroiled in the same elaborate and expensive cross-licensing arrangements we see in the patent space and/or face an explosion of litigation. Either option will discourage innovation and competition.