After a two-week trial, a San Jose jury has cleared Arista Networks of allegations that it infringed copyrights and patents belonging to Cisco Systems.
In a lawsuit filed in 2014, Cisco accused Arista of violating copyright because Arista's high-end switching equipment used some of the same commands from Cisco's Command Line Interface, or CLI. Arista lawyers claimed that the CLI was an industry standard, promoted by Cisco, and that now Cisco was trying to change the rules because of Arista's success.
This morning, the eight-person jury cleared Arista of both patent and copyright infringement. The copyright claim, which was the bulk of Cisco's case, was rejected by the jury based on a legal doctrine known as "scènes à faire." A French term that means "scene that must be done," the phrase refers to a situation in which the creation of a certain work can only be accomplished in a limited number of ways, thus producing a more limited copyright.
During closing arguments, Arista's lawyer Robert Van Nest described Cisco's CLI as using simple, uncreative phrases, according to a report in Law360. He called the commands unoriginal and noted that they were based on 40-year-old technology from older systems. By finding in favor of a "scènes à faire" defense, the jury has shown that those arguments, questioning the creativity behind CLI, had a strong effect.
Van Nest, whose firm defended Google earlier this year in its second trial against Oracle, presented three possible copyright defenses under which jurors might find in his favor: fair use, merger, and scènes à faire. The jury said that only scènes à faire weighed in Arista's favor.
The case will likely be appealed, and because of the inclusion of a patent claim, it will head to the US Court of Appeals for the Federal Circuit, which hears all patent appeals. That's one of several similarities between this case and Oracle v. Google, which also headed to the Federal Circuit despite the patent claim being a minor part of the case that was ultimately dropped.
"We thank the jury for their diligence in reviewing the evidence, though we respectfully disagree with the verdict," said a Cisco spokesperson in an e-mailed statement to Ars. "The jury found that Arista infringes Cisco’s user interface and that it was not fair use. But the jury found on the narrow legal issue of 'scènes à faire.' We are reviewing the details of the ruling and determining Cisco’s options for post-trial motions and appeal given the clear testimony that other suppliers use very different commands."
The statement also notes that Cisco recently won a patent infringement case against Arista at the International Trade Commission.
Scènes and switches
As a legal doctrine, "scènes a faire" developed from copyright disputes over movies, as a way to describe scenes that were so stock, obvious, or cliched, they didn't warrant copyright protection. A well-known 1990 paper by Prof. Jessica Litman, entitled "The Public Domain," traces the history of the doctrine.
In the 1940s, Judge Leon Yankvich described scènes a faire as "the common stock of literary composition—'cliches'—to which no one can claim literary ownership."
In a 2003 case, a photographer who'd been hired to do a marketing shoot for Skyy Vodka sued the liquor company when it hired someone else to produce similar product photographs. Both the district court judge and the appeals court held that Skyy was protected by the doctrines of scenes a faire and merger.
"This long-running litigation is fundamentally about how many ways one can create an advertising photograph, called a 'product shot,' of a blue vodka bottle," wrote the 9th Circuit judges who decided Ets-Hokin v. Skyy Spirits. "We conclude there are not very many." While the original photographer did indeed own a copyright to photograph of a blue vodka bottle, courts limited the ways in which he could stop others from "copying" him. There are only so many ways to get that product shot.
In Atari, Inc. v. North American Phillips Consumer Elecs Corp., a 1982 case at the 7th Circuit, a panel of judges used the concept in a copyright case regarding Atari's Pac-Man game. They held that a competing game couldn't be infringing just because it used a maze, scoring table, and wrap-around tunnels—those concepts were the video-game equivalent of "scènes a faire." (The competing game was found to infringe for borrowing other elements, however.)
Another use of "scenes a faire" came up in a 1988 video game decision, Data East USA v. Epyx. Data East claimed that the Epyx video game International Karate was a rip-off of the Data East game, Karate Champ. Judges for the 9th Circuit held that "the visual depiction of karate matches is subject to the constraints inherent in the sport of karate itself," and certain game elements amount to scènes à faire, since they were "indispensable, or at least standard."