Software commands can be “Scene a Faire” in Copyright

Arista Networks successfully defended a copyright claim by Cisco based on the use of Cisco’s Command Line Interface.  The jury returned a verdict that the use was not fair use but was scènes à faire –– a copyright doctrine that has historically been applied as a defense to claims of infringement for works like books, video games, and movie scripts.  The doctrine holds that copying elements that are necessary to a genre of work is not infringement.  For instance, a western would contain a sheriff, a bad guy with a black hat, and a final showdown, and any work copying such elements would not infringe as a result.  Software lawyers have long posited that this doctrine might be applied to copying of elements of software that are standardized, so this successful invocation of the doctrine is significant.  The case may be appealed, and because the initial claims included patent claims, the Federal Circuit would hear the appeal.

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