17 U.S.C.S. §301 preempts only those state law rights that may be abridged by an act which, in and of itself, would infringe one of the exclusive rights provided by federal copyright law. If an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display in order to constitute a state-created cause of action, then the right does not lie within the general scope of copyright, and there is no preemption.
Plaintiff CA created a computer program containing a subprogram that enabled the primary program to run on different operating systems. Defendant Altai hired one of plaintiff's employees, who misappropriated copies of the source code for plaintiff's subprogram, which he then used to create a program for defendant. Defendant then rewrote its program leaving out those portions that had been copied from plaintiff's subprogram. Plaintiff sued for copyright infringement with respect to both versions of defendant's program and misappropriation of trade secrets. Lower court found copyright infringement only with respect to first version of defendant's program, dismissing second claim and dismissing trade secrets claim based upon preemption by federal copyright law.
Was there copyright infringement?
The court held that the second copyright infringement claim was properly dismissed because second program contained no protectable expression, but reversed dismissal of trade secret claim as it was based upon violation of confidential employment agreement and not copying of subprogram. In adopting the three step analysis for substantial similarity between the non-literal elements of computer programs, the court seek to insure two things: (1) that programmers may receive appropriate copyright protection for innovative utilitarian works containing expression; and (2) that non-protectable technical expression remains in the public domain for others to use freely as building blocks in their own work. At first blush, it may seem counter-intuitive that someone who has benefited to some degree from illicitly obtained material can emerge from an infringement suit relatively unscathed. However, so long as the appropriated material consists of non-protectable expression, "this result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."