Northern California businesses rely on intellectual property protection for numerous business assets, particularly software. Copyright often offers the best protection for the various types of code that comprise software. Unauthorized use of copyrighted software may lead to liability for infringement under federal law. In order for unauthorized use of software to be actionable as infringement, however, the Ninth Circuit Court of Appeals has held that it must be “significant.” Newton v. Diamond, 388 F. 3d 1189, 1192-93 (9th Cir. 2004). The “de minimis” exception holds that, if the unauthorized use is not “significant,” there is no liability for infringement. The Newton decision specifically involved a sound recording, so it is worth looking at a more recent decision applying the de minimis exception to software, Design Data Corp. v. Unigate Enterprise, Inc., 63 F.Supp.3d 1062 (N.D. Cal. 2014).
Copyright protection is available under federal law for “original works of authorship fixed in any tangible medium of expression” that can be communicated to others. 17 U.S.C. § 102. The exclusive rights protected by copyright law include reproduction of the copyrighted work. Id. at § 106(1). In the case of software, this can mean making copies for sale to consumers or customers subject to a license agreement. In 1976, Congress revised the copyright law and added provisions specifically relating to software. See id. at § 117.
The de minimis exception takes its name from an old legal maxim, “the law does not concern itself with trifles” or “de minimis non curat lex.” Newton, 388 F.3d at 1193. The Ninth Circuit’s decision in Newton focused on the extent to which “the average audience would not recognize the appropriation.” Id. In that case, the defendant admitted to copying an audio clip that was three notes in length to use in a track by the hip hop group the Beastie Boys. The plaintiff also conceded that the original recording and the Beastie Boys track were “substantially dissimilar in concept and feel.” Id. at 1196. The court ruled that the de minimis exception applied, noting that “an average audience would not discern [the plaintiff’s] hand as a composer.” Id. See also VMG Salsoul, LLC v. Ciccone, 824 F. 3d 871, 874 (9th Cir. 2016) (copying “a 0.23-second segment of horns from an earlier song” was de minimis).