Brown Bag Software v. Symantec Corp.

I concur in Parts I and III of Judge Tang’s opinion, and in the judgment with respect to Part II.

My difference as to Part II is rooted in my belief that Shaw v. Lindheim, 919 F.2d 1353 (9th Cir.1990), provides a poor analytic structure by which to determine the substantial similarity of an allegedly infringing computer program. This is a message already dispatched by District Judge Orrick of the Northern District of California in Broderbund Software Inc. v. Unison World Inc., 648 F.Supp. 1127, 1136 (1986). He preferred Circuit Judge Becker’s approach in Whelan Associates, Inc. v. Jaslow…