Whelan v. Jaslow

Citation: Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 609 F. Supp. 1307, 225 U.S.P.Q. (BNA) 156 (E.D. Pa. 1985), aff’d, 797 F.2d 1222, 230 U.S.P.Q. (BNA) 481 (3d Cir. 1986), ''cert. denied,'' 479 U.S. 1031 (1987).

Factual Background
Elaine Whelan, an employee of Strohl Systems, developed custom programs in EDL language for defendant’s IBM Series 1 computer system. The agreement provided that “all software developed by [Strohl] for your dental laboratory system [will] remain under our ownership.” Whelan later incorporated, obtained rights to the system from Strohl, and entered into an agreement with the defendant to market the programs.

Defendant Rand Jaslow unsuccessfully attempted to develop his own system for the IBM Series 1 using the BASIC programming language. Defendants terminated the marketing agreement with plaintiff, and, using a surreptitiously obtained copy of the EDL surce code, adapted it (with expert help) for the IBM PC and marketed the adapted program under a similar name. Whelan sued for copyright infringement.

District Court Decision
The court held that (1) although Jaslow explained to Whelan how a detla lab worked, he was not a co-author of the program; Whelan alone was the author of both the source and object code; (2) Jaslow’s use of the EDL source code to develop the competitive product, even thought not a literal translation, it was a copyright infringement:


 * The idea of a computerized system to control the operations of a dental lab is nto subject to copyright. The particular expression of the idea created and fixed in the plaintiff’s IBM-Series 1 Dentalab system, however, is copyrightable, and the evidence demonstrates that defendants actually did copy that expression in writing the source and object codes for their IBM-PC Dentcom system.


 * The evidence establishes that it would be very difficult if not impossible to literally translate a program written in EDL to a program written in BASIC. The evidence makes clear that transferring or converting from one computer language to another is not comparable to translating a book written in English to French. At least, it would be a very inefficient method of copying a program to attempt to work solely from the source code and literally translate it from EDL to BASIC. As I understand the evidence, in order to copy a program written in EDL for use in a computer that operates on a source code written in BASIC, one would study the method and manner that a computer received, assembles, calculates, holds, retrieves and communicates data. This requires a study of the manner in which the information flows sequentially from one function to another. Once this is fully understood, one may copy this exact manner of operation for use in a computer that responds to commands written in a different source code language.

The court awarded damages for copyright infringement of $42,000 for two sales of the Series 1 system after the marketing agreement ended and $101,269 for 23 sales of the IBM PC software.

Appellate Court Decision
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