Proving or Defending a Software Copyright Claim: A Practitioner's Guide to Filtration, Access, and Expert Analysis
By Casey Scott McKay ·
A litigation guide for software copyright disputes on either side, ordered the way these cases are actually won rather than the way they are pleaded. It starts with chain of title and registration, because a defect in either ends the case regardless of how similar the code is, and because section 412 determines whether the case has any economics at all. It then sequences access and independent creation ahead of code comparison, since both are decided on version control history and personnel records and both resolve most disputes before an expert opens a file. The middle stages run the abstraction-filtration-comparison method as an expert protocol, with the shared-errors evidence that persuades and the unfiltered similarity report that gets dismantled. Later stages cover the source code protective order, fair use briefing, the parallel trade secret claim that is frequently stronger, and the settlement structures these should reach.
IP and Technology > Information Technology | Guide | Published 6 March 2024 - Updated 7 August 2025 | Casey Scott McKay - marksy.us
Summary. A litigation guide for software copyright disputes on either side, ordered the way these cases are actually won rather than the way they are pleaded. It starts with chain of title and registration, because a defect in either ends the case regardless of how similar the code is, and because section 412 determines whether the case has any economics at all. It then sequences access and independent creation ahead of code comparison, since both are decided on version control history and personnel records and both resolve most disputes before an expert opens a file. The middle stages run the abstraction-filtration-comparison method as an expert protocol, with the shared-errors evidence that persuades and the unfiltered similarity report that gets dismantled. Later stages cover the source code protective order, fair use briefing, the parallel trade secret claim that is frequently stronger, and the settlement structures these should reach.
Keywords: chain of title audit software · registration and deposit strategy · section 412 analysis · access proof · version control discovery · independent creation defense · abstraction filtration comparison method · merger and scenes a faire · shared errors evidence · expert comparison protocol · source code protective order · clean room documentation · fair use software briefing · google v oracle scope · dtsa parallel claim · apportionment of profits · summary judgment on filtration · injunction after ebay · settlement structures · design-around
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