Conservancy Joins in Cisco v. Arista Amicus Brief

January 3, 2018

Software Freedom Conservancy is pleased to announce that it has joined GitHub, Mozilla Corporation, and Engine Advocacy, in an amicus brief for the Cisco v. Arista case. In the brief, we argue against extending copyright law unduly to ideas and functionality embodied in software — namely, that imitating command-line interfaces should not alone constitute copyright infringement.

The case, which Cisco appealed to the U.S. Court of Appeals for the Federal Circuit, considers whether a defense called “scènes à faire” should allow Arista Networks, Inc. to create a command-line interface that operates similarly to an interface developed by Cisco Systems, Inc. The lower court found, in a jury trial, that the defense was appropriate. Now, Cisco challenges that finding as a legal matter in their appeal.

In the amicus brief, we and the joined amici argue that the public interest is well-served by allowing the scènes à faire affirmative defense to apply to copyright infringement with respect to software command-line interfaces. Even though FOSS licenses, such as copyleft, defend software freedom , the public interest is not served if copyright restrictions extend too far. Many software freedom projects, including Conservancy's own projects, must imitate or interoperate with proprietary software via the command-line. Users deserve this functionality and should not need explicit copyright permission to do so.

If you're interested in reading and learning more about this issue, Our Distinguished Technologist, Bradley M. Kuhn, has written a blog post about the brief. We'd like to thank the other amici and Marcia Hofman of Zeitgeist Law PC for their work on this.