Iterative approach

The iterative approach “requires proof (1) that the defendant ‘used’ the copyrighted work in preparing the alleged copy, which may be established by proof of access and similarity sufficient to reasonably infer use of the copyrighted work; and (2) that the defendant’s work is an iterative reproduction, that is, one produced by iterative or exact duplication of substantial portions of the copyrighted work.”

“Under the iterative approach. . . the factfinder’s focus shifts from the hypothetical ordinary observer’s impressions of the ‘total concept and feel’ of the copyrighted and allegedly infringing works to an analysis of the ‘quantitative and qualitative evidence of similarities’ as gauged by the Court’s evaluation of expert testimony. The fiction of the lay observer is thus abandoned in favor of an analysis of similarities and differences in the copyrighted and allegedly offending computer program.”