Navitaire Inc v Easyjet Airline Co. & Anor [2004] EWHC 1725 (Ch) (30 July 2004)

Navitaire Inc v Easyjet Airline Co. & Anor [2004] EWHC 1725 (Ch) (30 July 2004)
As I have indicated above, the case advanced by Navitaire is based on the fact that the functions of OpenRes and eRes are identical to the user so far as the aspects of the system of interest to easyJet are concerned. The case had its origin in the suggestion that what was called the 'business logic' of OpenRes had been appropriated.

During the course of her cross-examination on this subject, Dr Hunt gave this important answer.

A. I think the problem with "Business Logic" and .... Perhaps we can just take a step back to where it came from. When I discussed this case with my instructing solicitors, we had drawn the lines that surround commands and screen layouts very tightly. Commands were, in my head anyway, really quite a limited feature. They are the text of the commands and what they do, but not in a detailed sense of what they do. Similarly, the screen layout is just the screen layout and very little else. It was obvious to me that there was something that has been copied in this case which is more than that. Now, I used the term "Business Logic". It may have been an error to use the term "Business Logic" and not pin it down more tightly at that stage, but it seemed to me that there is something which is the interaction between the commands and what you get and how you get the right data out at the right time in the process which I dubbed "Business Logic". "Business logic" does not have, like a lot of computer terms, a very precise meaning. It is not something that you would call a term of art. It does tend to be used.

As will appear from what I have said, I agree that the commands were really quite a limited feature. The question is whether the 'something else that has been copied' over and above the limited features of commands and screens is something Navitaire may protect from being copied. It seems to me that the following list sets out the matters copied over and above the comparatively limited aspects of the user interface:

i) The relationship between the commands and the screens. No doubt this is obvious, but it is worth pointing out that the screens and commands do not exist in a vacuum. They are connected by invisible chains, and I do not think that in this context they should be considered separately.

ii) The ability to carry out the operations of reservation, check-in, irregular operations and so on, with much the same commands and screens with a successful result.

iii) Making the same data about all transactions as OpenRes provides available, and in substantially the same form.

iv) At easyJet, at least, accordingly providing a 'drop-in' replacement for OpenRes.

This formulation concentrates on similarities and ignores differences. It is basic to the discussion that all the processing carried out by the systems, including background processing, is different: and it is accepted that the error processing, an essential feature of any program, is also different.

Dr Hunt's use of the term 'Business Logic' for what was taken was bound to run into problems, because it seems to assume that one can identify in the source code programming logic that in some way reflects the business logic. This assumption was explicit in Dr Hunt's original reference to pseudocode in section 3 of her April report, which was dedicated to the question of what business logic was. It is clear from her cross-examination that it was she who was responsible for the reference to pseudocode. This gave rise to a dispute with Dr Chiu that is enlightening.

I shall return to first principles. For present purposes, a computer running a particular program is a deterministic machine. A particular input to the machine will produce a predictable result derived from all previous inputs to the machine. If therefore one studies a machine in operation, it should be possible to identify the machine's response to all possible sequences of inputs, and so construct a new machine that operates to give the same outputs for the same sequences of inputs by writing an appropriate program. Navitaire contend that if this is done, it follows axiomatically that any copyright in the source code for the first machine must be infringed in writing the second program. Indeed, it was urged on me at an earlier hearing that it was unnecessary to consider any of the source code for the OpenRes system in determining whether there had been copying of a substantial part of the copyright(s) subsisting in the source code for it.

There is no doubt that easyJet and BulletProof had no access to the source code of OpenRes, and it is not in dispute that in languages used, actual code and architecture (subject to the claim in respect of the database) the systems are quite different. There is no suggestion that the eRes code represents a translation or adaptation of the OpenRes code. The term 'non-textual copying' might be replaced by the more accurate 'copying without access to the thing copied, directly or indirectly'.

The claim depends first upon the contention that the manner in which a machine behaves under the control of a program represents part of the skill and labour that went into the program. This is not an unreasonable observation. On the contrary, it is the whole object of the programmer to get the computer to behave in the required manner.

To copy an operating machine in this manner avoids the need to conduct any systems analysis or the production of functional specifications. Thus, it may be observed that although the copyist has not avoided the need to write software to achieve the desired result, he has avoided the need to identify the result by any of the normal methods of analysis that either precede or accompany the writing of a substantial piece of business software. Dr Hunt described this process as follows:

Many different methodologies have been defined in the IT industry to help standardise and improve the way that these tasks are done and how the information they produce is presented. In some methodologies, such as SSADM (Structured Systems Design and Analysis Methodology) the assumption is that all details of a system will be documented, as a result of interviews with relevant client staff, before programming starts. In others, such as DSDM (Dynamic System Development Method) and MSF (Microsoft Solutions Framework) the assumption is that while the overall requirements will be set early on the details of how the system is to behave will be established in a series of iterative cycles, usually by building prototypes that are discussed with business users. It is also common, though not necessarily advisable, for developers to build systems without doing formal data analysis or business process analysis. This does not mean that the work involved is not done, just that it is done in parallel with coding.

In this connection, it may be noted in passing that no such formal analysis was ever carried out in the design of OpenRes. It is clear from the responses of David Evans, Greg McDaniel and Mike Padgen that they based OpenRes upon their previous experience and upon the comments and requests received from customers. It is not unfair to say that Navitaire object to BulletProof's and easyJet's acquiring the greater part of their experience from an examination of OpenRes in use alone. However, shorn of the specific user interface features that I have discussed, the operation of OpenRes cannot be distinguished from the manner in which other booking systems operate. Ms Antry, who was responsible for the design of the system was cross-examined on this point:

Q. …You say this in the sentence bridging pages: "Most reservation systems support basic functionality including creation of new bookings, making changes to existing bookings, cancelling bookings, and other general reservations functions as required by the airline". I want to ask you a little bit about what is involved in this basic functionality that you are talking about there and specifically what is involved in creating a new booking. Do you understand? A. Mmm-hmm.

Q. It is common in the industry to have a command line interface, is it not? A. I do not have direct knowledge of that. I have worked with people in the industry who have used command line or screen mode or fill in the blank type of interfaces.

Q. But you are aware that quite a lot of systems out there have command lines interfaces. A. I am aware that there are a number of them, yes.

Q. What that means is that they will prompt the user to enter a command, parse the command once entered to see what sort of command it is and check the validity of the parameters entered. A. I do not know that that is the process they go through.

Q. Thinking about creating a new booking, the user will generally start by entering in an availability command to see what flights are available. Yes? A. That is a way it can be done, yes.

Q. The system will then search for flights that depart on the requested departure date and return on the requested return date or within a specified window? A. Yes, I would guess that it would search for the parameters input by the user.

Q. The matches will then be displayed to the user, typically in date order with a numeric index? A. I do not know exactly how the matches would be displayed, but the data will be returned to the user.

Q. Assuming that one of the flights is suitable for the customer who wishes to make the reservation, the user will enter a command to book so many seats in such and such a class on that flight. A. My understanding is, yes, they can request a number of seats.

Q. The system will then check to see if the flight selected has enough seats available in the requested class. A. My understanding, yes.

Q. If so, the system will reduce the number of seats available on the flight by the number of seats sold and store details of the booking in working storage. A. That is fairly accurate description of Open Skies, but based on my discussions with people at Sabre and WorldSpan, that does not sound familiar from what they have told me.

Q. Is that not something that any reservation system is going to need to do? A. Not in that specific time. My understanding from Sabre is that they do not store anything until all the data from the reservation has been entered.

Q. I see. But certainly the system will need to reduce the number of seats available on the flight by the number of seats sold? A. At some point in time, yes.

Q. At some point in time, indeed. Next the user will enter a series of commands to enter the passenger names and other required details. A. Yes, other information like they would request a price and enter the passenger information and payment information.

Q. And again those would be added to working storage? A. Again, that is how Open Skies typically works, but I do not know. Like I have said, with Sabre, my understanding is that they wait and do that until they do the ER or the end record and transaction.

Q. It would not be surprising if there were other systems that used working storage in that way? A. No. I am sure there are probably.

Q. And typically there will be a running display of what has been entered and a prompt if any required information has been omitted? A. That could be probable.

Q. Once all the required details have been entered, the user enters an end command and the system transfers all the booking details to main storage? A. That sounds reasonable, yes.

Q. At that point you have a booking and the user can go on to some other task. You do not need to do anything more. A. As long as they have entered everything as far as selecting a price for the seat, because until they price it, the customer cannot fly on it.

Q. Indeed, so one assumes that the seat has been priced at some stage in the process. A. Yes.

The overall functionality, from a business perspective, is what is accepted by Ms Antry in this passage. The steps are, in essence, check flights–check availability of seats–reserve–take passenger details–take payment details–record transaction. The seats thus sold must be made unavailable for future passengers, and that may be done at a number of stages in the transaction (including the initial grab: they can be returned to stock if the transaction is ultimately not proceeded with). This is common to reservation systems, and makes up what Dr Hunt calls the 'core' functions of the system.

The problem, therefore, if one is to arrive at a finding of infringement is to settle on a level of abstraction that describes something that is not merely inherent in the nature of the business function to be performed by the software, is taken by the defendants, represents the skill and labour of the designers and programmers but goes wider than the details of the command set and the screen displays, acknowledged by Dr Hunt to be a limited feature. Since copyright in computer programs is a literary copyright, the natural approach for Navitaire is to base its contentions on the analogy between the function of a computer program and the plot of a literary work. Mr Carr QC employs the law in this area as a cornerstone of his submissions, and it is necessary to consider the cases.

In Designer's Guild v Russell Williams Textiles Ltd [2000] 1 WLR 2416, Lord Hoffman says at 2422:

It is often said, as Morritt L.J. said in this case, that copyright subsists not in ideas but in the form in which the ideas are expressed. The distinction between expression and ideas finds a place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (O.J. 1994 L. 336, p. 213), to which the United Kingdom is a party (see article 9.2: "Copyright protection shall extend to expressions and not to ideas ..."). Nevertheless, it needs to be handled with care. What does it mean? As Lord Hailsham of St. Marylebone said in L.B. (Plastics) Ltd v. Swish Products Ltd. [1979] R.P.C. 551, 629, "it all depends on what you mean by 'ideas.'"

Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a "substantial part" of the work. Although the term "substantial part" might suggest a quantitative test, or at least the ability to identify some discrete part which, on quantitative or qualitative grounds, can be regarded as substantial, it is clear upon the authorities that neither is the correct test. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W.L.R. 273 establishes that substantiality depends upon quality rather than quantity (Lord Reid, at p. 276, Lord Evershed, at p. 283, Lord Hodson, at p. 288, Lord Pearce, at p. 293). And there are numerous authorities which show that the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work.

This passage encapsulates the state of the law. Mr Carr QC submits that Lord Hoffmann is describing a case of 'non-textual copying'. That is no doubt so, if the meaning of those words is merely that the defendant has reproduced the copyright work in a different form, as in Harman Pictures v Osborne [1967] 1 WLR 723 where the similarity in language was slight but the choice of incidents the same, or in Holland v Vivian van Damm Productions Ltd [1936-45] MacG CC 69, where a ballet was held to infringe the copyright in a short story by Oscar Wilde. This principle extends to compilation cases: Jarrold v Houlston (1857) 3 K&J 708 is relied on by Mr Carr. This was a case in which the plaintiff had written a work which in the words of Page Wood V-C 'collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions, and explanations of those phenomena.' He had provided answers to those questions out of works consulted by him and had arranged the whole 'under certain heads and in a scientific form'. Page Wood V-C expressed the principle thus:

…if, knowing that a person whose work is protected by copyright has, with considerable labour, compiled from various sources a work in itself not original, but which he has digested and arranged, you, being minded to compile a work of a like description, instead of taking the pains of searching into all the common sources, and obtaining your subject matter from them, avail yourself of the labour of your predecessor, adopt his arrangements, adopt moreover the very questions he has asked, or adopt them with but a light degree of colourable imitation, and thus save yourself pains and labour by availing yourself of the pains and labour which he has employed, that I take to be illegitimate use.

Mr Carr QC says that this is a description of non-textual copying. That is not so as Houlston had taken the questions and the selection directly from the copyright work. But assume that he had not taken the questions, but merely the arrangement of and selection from the primary sources. That would still have been infringement: Macmillan v Cooper (1923) 93 LJPC 113, and that would be so even if the material abstracted from the prior works had been summarized or abstracted in different terms, provided that the selection had been copied.

What differentiates the present case from those to which I have referred above is that the copyist did not have access to the copyright work: in Jarrold v Houlston the copyist had access to the copyright work and used it. It may be noted that as he initially denied copying altogether it was subsequently difficult for him to identify convincingly the parts he had not copied: compare the Ibcos case (above). Two other cases are particularly relied on by Mr Carr. The first is John Richardson Computers v Flanders [1993] FSR 497 (Ferris J). This is a difficult case to summarise, but for present purposes I need only refer to a few salient facts. Mr Flanders, the defendant, had written the program the copyright in which was asserted against his new program. It was accepted that he did not have access to a copy of his earlier work when he wrote the later; and the judge rejected any contention of deliberate copying. He said this:

In short, I do not accept the evidence I have discussed under heads (i) and (ii) in this section of my judgment as establishing deliberate copying of the [earlier] program by Mr Flanders. But the fact remains that he had, as I have said, an intimate knowledge of the [earlier] program at all levels of abstraction (to use the term employed in Nichols v Universal Pictures Corporation (1930) 45 F (2d) 119 and other United States authorities that I have mentioned) and it is possible that he has, unconsciously or unintentionally or in some other way which he did not consider to be objectionable, made use of that knowledge in a way that amounts to copying in the context of breach of copyright. It is that possibility that I must evaluate in appraising the particular similarities that I have identified. (my emphasis)

Seventeen similarities were relied on. Nearly all of them were rejected, but the ones which survived included the 'line editor'. Ferris J dealt with this feature in the following way.

I find it impossible not to conclude that the line editor in the [later] program has substantially been copied from the line editor in the [earlier] program. If all that had been copied was the concept of a line editor that would not have mattered for present purposes, being a mere adoption of an idea. But similarities such as the obscuration of the text which is to be amended, the message "Insert to edit" in one case and "Copy to edit" in the other and, above all, the idiosyncratic restoration of text which is merely deleted and not replaced demonstrate that there has been copying of expression as well as idea.

The reference to 'copying of expression as well as idea' is a clear echo of the United States authorities discussed at length by Ferris J elsewhere in his judgment whose employment for this purpose was criticised by Jacob J in the Ibcos case, itself relied on by Mr Carr. But it is quite correct, as he submits, that it is possible to read the foregoing passage as stating that the concept of 'expression' as distinct from 'idea' extended to the manner in which the programmed machine worked, in detail. If this was what Ferris J was saying, then I would respectfully suggest that it is based upon a misapprehension as to the meaning of 'expression' in this context. But I do not need to go into this in detail, because I would with respect accept what is said by Jacob J in Ibcos:

The true position is that where an "idea" is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the "idea" is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the "idea") of a novel or play can certainly infringe—if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between "idea" and "expression"):Nobody has ever been able to fix that boundary and nobody ever can."[16]

This does not answer the question with which I am confronted, which is peculiar, I believe, to computer programs. The reason it is a new problem is that two completely different computer programs can produce an identical result: not a result identical at some level of abstraction but identical at any level of abstraction. This is so even if the author of one has no access at all to the other but only to its results. The analogy with a plot is for this reason a poor one. It is a poor one for other reasons as well. To say these programs possess a plot is precisely like saying that the book of instructions for a booking clerk acting manually has a plot: but a book of instructions has no theme, no events, and does not have a narrative flow. Nor does a computer program, particularly one whose behaviour depends upon the history of its inputs in any given transaction. It does not have a plot, merely a series of pre-defined operations intended to achieve the desired result in response to the requests of the customer.

The view in favour of Navitaire 's case is expressed concisely by the authors of The Modern Law in paragraph 34.64 (I have assumed that when they speak of 'obtains…from the original program' they do not mean obtain directly, but indirectly from watching the program work):

For instance, the writing of a financing program may require as part of the task a careful elucidation of the relevant tax regulations—so that they may be reduced to a series of unambiguous statements—and it will be evident to any lawyer that this alone will probably involve a very large amount of work. A competitor might write a program of his own in a different computer language and arranged in a different way and with many improvements of his own but if he obtains the rules for calculating the tax from the original program instead of working these out for himself it is hard to see why he should not be considered a plagiarist.

There is a counter-example that throws some light on the nature of the problem. Take the example of a chef who invents a new pudding. After a lot of work he gets a satisfactory result, and thereafter his puddings are always made using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary labour, he succeeds in emulating the earlier result, and he records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no.

I think that the answer to the problem is to be gathered from the passage in Lord Hoffmann's speech immediately following that quoted above (paragraph 119) from the Designers' Guild case:

My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 is a well known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection.

Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law protects foxes better than hedgehogs. In this case, however, the elements which the judge found to have been copied went well beyond the banal and I think that the judge was amply justified in deciding that they formed a substantial part of the originality of the work.

The questions in the present case are both a lack of substantiality and the nature of the skill and labour to be protected. Navitaire 's computer program invites input in a manner excluded from copyright protection, outputs its results in a form excluded from copyright protection and creates a record of a reservation in the name of a particular passenger on a particular flight. What is left when the interface aspects of the case are disregarded is the business function of carrying out the transaction and creating the record, because none of the code was read or copied by the defendants. It is right that those responsible for devising OpenRes envisaged this as the end result for their program: but that is not relevant skill and labour. In my judgment, this claim for non-textual copying should fail.

I do not come to this conclusion with any regret. If it is the policy of the Software Directive to exclude both computer languages and the underlying ideas of the interfaces from protection, then it should not be possible to circumvent these exclusions by seeking to identify some overall function or functions that it is the sole purpose of the interface to invoke and relying on those instead. As a matter of policy also, it seems to me that to permit the 'business logic' of a program to attract protection through the literary copyright afforded to the program itself is an unjustifiable extension of copyright protection into a field where I am far from satisfied that it is appropriate.

I am also confirmed in my view by the evident difficulty that the formulation of the 'non-textual copying' or 'business logic' case has caused the claimant. The claim was first set out by Dr Hunt in her April, May and June reports and it became clear that her approach to business logic involved creating an abstract view of the functioning of the software at many different levels, together with disregard for features of the systems that were in fact different. She concentrated on the user interface aspect, but ignored the background processing and error processing. By the end of the trial, the claim had undergone a further metamorphosis, being characterised as a claim in respect of the 'dynamic user interface'. Although a fine concatenation of buzzwords, this phrase is difficult to pin down as a matter of meaning. Although it was mentioned once by Mr Carr at the outset of the trial it appeared little (it is not used by Dr Hunt is her reports) until it was put at the centre of Navitaire 's case in its submissions as to the material findings of fact. What Navitaire say is that they

…rely upon the objective similarity between the eRes dynamic user interface and the OpenRes dynamic user interface as set out in the 2nd May 2003 and 24th June 2003 reports, [as confirmed by the Defendants' evidence] together with Dr Hunt's 3rd July 2003 Indications of Copying Report section 4 (for the dynamic user interface) and section 8 (for the History application).

I think that this is just a repetition of the case advanced on the user interface that I have dealt with. It adds nothing.