Facebook had offered to buy Snapchat for a whopping 3 Billion Dollars, which it politely declined. Fast forward a few months and Facebook took the fight to a whole new level. Recently, both Instagram and Whatsapp launched the ‘stories’ feature, in quick succession. Before this, such a feature was unique to Snapchat (the uninitiated may go here). Let’s make a few interesting additions to this premise. One, Facebook owns both Whatsapp and Instagram. And two, there seems to be no IP violation through this action of theirs. The obvious question, then, is: How in God’s name did they pull this off – legally speaking?

A quick search of internet archives is enough to inform one of the existing speculations in this regard. It’s been said that the reason Instagram or Whatsapp could pull this off was because there was no copying of the source code. What had happened was merely a “borrowing” of an existing feature something which happens quite often in the tech world and doing it differently, if not better.

 

Could ‘Snapchat stories’ be protectable subject matter?

The American Courts make a unique distinction between the idea and expression of computer software. Cases have confirmed that the source code and object code are protectable under copyright law. If these are copied, it would constitute copyright violation that could effectively be challenged in a court of law. Of course, such a violation would have to be blatant and substantial but that is a different story and for another time. The landmark case of Computer Associates International v. Altai has prescribed a three pronged test to help determine which part of the software is an idea, and which, an expression. The abstraction-filtration-comparison test envisages the breakdown of the programme’s non-literal parts into its structural constituent parts, filter each of those parts for the protectable and non-protectable material and then compare those with the ‘infringing’ computer programme.

 Scenes-a-faire doctrine

One doctrine common to video game copyright litigation is the scenes-a-faire doctrine. According to this doctrine, all the indispensable parts of an app would become un-copyrightable subject matter. Put differently, all parts of Snapchat that are essential for a photo-sharing app like Instagram or text-messaging giant like Whatsapp, cannot be monopolized by Snapchat. The scenes-a-faire analysis would help understand if the ‘stories’ feature is so indispensable to computer apps that Snapchat cannot protect it under copyright at all.

Snapchat v. Facebook in an Indian Court? 

For starters, it could become problematic for Facebook to defend its claim of originality as per the dictum laid down in EBC v. DB Modak. As per that case, the use of mere labour, skill and capital is not enough to make your work original. It must have an added application of a certain amount of skill and judgment to pass the test of originality. However, this ‘skill and judgment’ is purely subjective in most cases, making the potential outcome of Snapchat v. Facebook rather difficult to predict.

The dispute might also then lock horns with the idea-expression dichotomy as established by the Supreme Court in RG Anand v. Deluxe films. Following this, the hitherto mentioned merger doctrine could be applied to see if the idea and expression in the present computer programme qualify as copyright protectable subject matter. After that, the dissimilarities between the “non-literal” expressions of both the computer applications could be weighed in order to determine who would win the “Stories” battle. Precedents by both the Bombay & Karnataka High Courts could influence the application of ‘scenes-a-faire’ to this case.