Source code is the English language version that is used to write software programs. The source code is then processed through a translator which converts it to machine language or object code. The object code is used to execute the program on a computer. Arguably the most well-known case in the area of the copyright infringement of source code is the Ninth Circuit’s 2016 decision in Antonick v. Electronic Arts, 841 F.3d 1062. In Antonick, the court held that when a developer could not produce evidence that his source code was substantially similar to the source code used by a video game manufacturer, the developer could not seek contract damages for derivative works arising from copyright infringement. Antonick is partially a procedural holding, as plaintiff’s failure to introduce the source code precluded the jury from undertaking a “substantial similarly” analysis, the governing standard for copyright infringement claims.

Although many developers license source code under general public licenses, allegations of copyright infringement of the developer’s source code are increasingly prevalent. Litigation confronting the often granular distinction between copyright infringement of the finished software and the underlying source code occurs with increasing frequency as well. A recent example is Vickerman Co. v. Kushner, No. 17-cv-1771, 2018 WL 1399311 (D. Minn. March 20, 2018). In Vickerman, a developer of custom-made software moved to enjoin his customer, on grounds of purported copyright infringement, from continued use of the software and underlying source code once the business relationship ended. As discussed in greater detail below, the court partially granted and partially denied the injunction, while laying out the difference between injunctive relief as applied to the software itself and the core source code.

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