Case: 21-16346, 11/18/2021, ID: 12292182, DktEntry: 11, Page 1 of 27
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`21-16346
`IN THE
`
`United States Court of Appeals
`FOR THE NINTH CIRCUIT
`__________________________
`Vitaly Pilkin,
`Plaintiff-Appellant,
`GOOGLE LLC,
`Defendant-Appellee,
`__________________________
`On Appeal from the U.S. District Court for the Northern District of California,
`Case No. 4:21-cv-01483-DMR
`The Honorable Donna M. Ryu
`
`ANSWERING BRIEF OF DEFENDANT-APPELLEE GOOGLE LLC
`
`Victor Jih
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`633 West Fifth Street
`Suite 1550
`Los Angeles, CA 90071-2027
`Telephone: (323) 210-2900
`Facsimile: (866) 974-7329
`Email: vjih@wsgr.com
`
`Meng Jia Yang
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`Facsimile: (650) 493-6811
`Email: mjyang@wsgr.com
`
`Attorneys for Defendant-Appellee Google LLC
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`

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`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned
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`counsel for Defendant-Appellee states that Google LLC is a subsidiary of XXVI
`
`Holdings Inc., which is a subsidiary of Alphabet Inc., a publicly traded company,
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`and that no publicly traded company holds more than 10% of Alphabet Inc.’s stock.
`
`/s/ Victor Jih
`Victor Jih
`Attorney for Defendant-Appellee
`Google LLC
`
`i
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ..................................................................................................... 1
`JURISDICTIONAL STATEMENT .......................................................................... 2
`ISSUES PRESENTED ............................................................................................... 2
`STATEMENT OF THE CASE .................................................................................. 2
`A.
`Factual Background ............................................................................... 2
`B.
`Procedural History and Decision Below ............................................... 5
`SUMMARY OF ARGUMENT ................................................................................. 7
`STANDARD OF REVIEW ....................................................................................... 8
`ARGUMENT ............................................................................................................. 9
`I.
`THE DISTRICT COURT CORRECTLY CONCLUDED
`THAT THE LIST OF SUGGESTED MAP IMPROVEMENTS
`DESCRIBED IN PLAINTIFF’S WORK IS
`UNCOPYRIGHTABLE SUBJECT MATTER ............................................... 9
`A.
`The District Court Correctly Invoked the Idea-Expression
`Dichotomy. ............................................................................................ 9
`Pilkin's List of Functional Map Features Are
`Uncopyrightable Ideas. ........................................................................ 12
`The District Court Properly Dismissed Plaintiff-Appellant’s
`Claim with Prejudice. .................................................................................... 17
`CONCLUSION ........................................................................................................ 18
`
`B.
`
`II.
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`ii
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`TABLE OF AUTHORITIES
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`Page(s)
`
`CASES
`Advanz Behavorial Mgmt. Res., Inc. v. Miraflor,
`21 F. Supp. 2d 1179 (C.D. Cal. 1998) ............................................................. 7
`Apple Computer, Inc. v. Microsoft Corp.,
`35 F.3d 1435 (9th Cir. 1994) ................................................................... 16, 17
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009)......................................................................................... 9
`Baker v. Selden,
`101 U.S. 99 (1879)......................................................................... 9, 10, 12, 17
`Barnett v. Ubimodo, Inc.,
`2021 WL 5001710 (9th Cir. Oct. 28, 2021) .................................................. 11
`Bell Atl. Corp. v. Twombly,
`550 U.S. 554 (2007)......................................................................................... 8
`Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC,
`803 F.3d 1032 (9th Cir. 2015) ....................................................... 6, 10, 12, 17
`Corbello v. Valli,
`974 F.3d 965 (9th Cir. 2020) ......................................................................... 11
`Dream Games of Ariz., Inc. v. PC Onsite,
`561 F.3d 983 (9th Cir. 2009) ......................................................................... 16
`Ets-Hokin v. Skyy Spirits, Inc.,
`225 F.3d 1068 (9th Cir. 2000) ....................................................................... 13
`Feist Publ’ns., Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (1991)....................................................................................... 10
`Herbert Rosenthal Jewelry Corp. v. Kalpakian,
`446 F.2d 738 (1971) ...................................................................................... 17
`Livid Holdings Ltd. v. Salomon Smith Barney, Inc.,
`416 F.3d 940 (9th Cir. 2005) ........................................................................... 9
`Lund v. Cowan,
`5 F.4th 964 (9th Cir. 2021) ............................................................................ 18
`Mason v. Montgomery Data, Inc.,
`967 F.2d 135 (5th Cir. 1992) ................................................................... 14, 15
`Mattel, Inc. v. MGA Entm’t, Inc.,
`616 F.3d 904 (9th Cir. 2010) ......................................................................... 11
`
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`Parents for Privacy v. Barr,
`949 F.3d 1210 (9th Cir. 2020) ..................................................................... 8, 9
`Rentmeester v. Nike,
`883 F.3d 1111 (9th Cir. 2018) ....................................................................... 11
`Sega Enterprises Ltd. v. Accolade, Inc.,
`977 F.2d 1510 (9th Cir. 1992) ................................................................. 15, 17
`Sony Computer Entm’t, Inc. v. Connectix Corp.,
`203 F.3d 596 (9th Cir. 2000) ......................................................................... 15
`STATUTES
`28 U.S.C. § 1291 ........................................................................................................ 2
`28 U.S.C. § 1331 ........................................................................................................ 2
`28 U.S.C. § 1338(a) ................................................................................................... 2
`
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`INTRODUCTION
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`Appellant Vitaly Pilkin (“Pilkin”) is a Russian citizen who sent Appellee
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`Google LLC (“Google”) multiple unsolicited copies of his 2013 two-page essay
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`describing how an online map service like Google Maps could be
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`improved. Pilkin offered suggestions like using “interactive map symbols,”
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`“changing color(s) or font” to highlight elements, and “zooming to a location” with
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`a cursor or your fingers. Seven years after sending his first unsolicited copy, he
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`claims Google Maps copied his suggestions and infringed his copyright. To be
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`clear, Pilkin does not allege that Google copied the words of his essay; rather, his
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`claim is that Google implemented the suggestions.
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`The district court assumed these allegations to be true (even though they are
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`not) and dismissed the Complaint because they failed to state a claim as a matter of
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`law. Pilkin’s map suggestions are ideas that cannot be copyrighted. His essay
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`describes functional elements and map features; it does not provide any particular
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`map implementation or even an illustrative design example. The district court
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`found that Pilkin’s essay contained nothing copyrightable—other than the words of
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`the essay, which are not at issue—that Google Maps could have infringed. Even if
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`Google had taken Pilkin’s suggestions and implemented them, there would still be
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`no copyright infringement given the idea-expression dichotomy. Because no
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`1
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`amendment can change the nature of Pilkin’s suggestions, the district court
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`correctly dismissed the entire case without leave to amend.
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`JURISDICTIONAL STATEMENT
`The district court had federal question jurisdiction under 28 U.S.C. § 1331
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`and 28 U.S.C. § 1338(a) over Pilkin’s lone claim of copyright infringement. This
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`Court has appellate jurisdiction under 28 U.S.C. § 1291. The district court entered
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`final judgment dismissing Pilkin’s case with prejudice on August 13, 2021. SER-
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`005.1 Pilkin filed a timely notice of appeal on August 13, 2021. SER-003.
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`ISSUES PRESENTED
`1. Whether the district court erred in ruling that Pilkin’s two-page essay
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`describing possible features for an improved online interactive map contained only
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`ideas that were not copyrightable subject matter.
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`2. Whether the district court erred in dismissing Pilkin’s First Amended
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`Complaint without leave to amend for failing to state a claim upon which relief can
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`be granted.
`
`A.
`
`STATEMENT OF THE CASE
`Factual Background
`Based on the allegations in his complaint, Pilkin is a citizen of Russia
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`residing in Moscow. SER-019. On August 26, 2013, Pilkin created a two-page
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`1 “SER” refers to Google’s Supplemental Excerpts of Record. “ER” refers to
`Pilkin’s Excerpts of Record. “Dkt.” refers to the docket entries below.
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`2
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`essay, written in Russian, titled “Map in the Information and Telecommunications
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`Network” (the “Work”). SER-013-15; SER-021. He registered the Work with the
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`Russian Authors’ Society on August 26, 2013 but did not register it in the United
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`States. SER-021.
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`The essay describes various ways to improve online interactive maps. SER-
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`021.2 According to Pilkin, the existing map services like Google Maps “provide
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`various well-known features” but also suffer from “some disadvantages.” SER-
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`014. The essay hoped “to describe an interactive map wherein some disadvantages
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`of existing interactive maps have been overcome.” Id. It then offers eight
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`suggestions for improving online maps:
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`(1) When a user searches for a location or address, the search result should be
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`highlighted by either using a different color for the “contours” of the place,
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`enlarging or shrinking its size, or making it blink.
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`(2) Using animated map symbols to designate streets, buildings, rivers, parks,
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`bicycle paths, cities, boundaries, etc.;
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`2 Pilkin asserts that the copy of the Work submitted by Google as an exhibit to its
`motion to dismiss is not the correct translation of the work. But Pilkin does not
`point out any inaccuracies in the translation—in fact, he acknowledges that the
`Work describes the features stated in the translated version. Br. 10-11.
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`3
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`(3) During user interactions, highlight map symbols in text or graphic form,
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`permanently or temporarily, by changing color, font size, or making it
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`blink.
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`(4) Zooming to a location by using a cursor, stylus, finger, etc.
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`(5) Enabling selective zooming that can be applied to certain parts of a map
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`while not affecting the scale of the rest of the map;
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`(6) Using active links for streets, buildings, parks, facilities, etc. that reveal
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`information about the location, including residents, photos, etc.;
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`(7) Using active links for locations or buildings that can take the user to the
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`website of the business or organization at that location;
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`(8) Using space on a visual display signboard on the map to advertise the name
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`or logo of a business.
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`SER-015, SER-021. The essay describes generally how each suggestion would
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`work. Id. It does not contain any computer code or discuss any particular
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`implementation. Nor does it include any pictures, drawings, designs,
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`specifications, or photographs to illustrate the suggestions. Id.
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`Shortly after writing the essay, Pilkin began sending unsolicited copies to
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`various companies, including Google, Yandex, Microsoft, and Nokia. SER-
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`022. On September 2, 2013, Pilkin sent the first copy by mail to Google’s
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`Moscow office along with a proposal to purchase exclusive rights in the
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`Work. Id. On November 22, 2013, Pilkin sent another copy to Google’s Mountain
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`View office. Id. Seven years later, on September 18, 2020, he apparently sent
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`another copy of the Work to Google’s Moscow office. Id. Google never
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`responded to any of these unsolicited communications. SER-022-23.
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`On September 30, 2020, Pilkin says he discovered for the first time that the
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`ideas described in his two-page essay had been incorporated into Google
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`Maps. SER-022. Pilkin claims that Google, without his authorization, “recast,
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`transformed and adapted his work, created, based upon the work, at least one
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`computer program and uses it in its Google Maps.” Id. Pilkin does not allege that
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`Google copied the words of his essay. Instead, he claims that Google Maps
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`infringed his copyright when it (1) used animated images to designate cities;
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`boundaries, and more; (2) highlighted selected symbols or names by changing their
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`color or size, (3) used active links for buildings that reveal their actual photos when
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`clicked; and (4) used active links on photos that take users directly to the relevant
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`website when clicked. SER-023- SER-024.
`
`B.
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`Procedural History and Decision Below
`Pilkin filed his original Complaint on March 1, 2021. Dkt. 1. Google
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`moved to dismiss the Complaint on June 3, 2021, arguing that Pilkin’s Work
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`contained only uncopyrightable ideas and that Pilkin’s requests for statutory and
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`punitive damages were barred as a matter of law. Dkt. No. 11. Before briefing
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`was completed on the motion to dismiss, Pilkin mooted Google’s motion by filing
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`the First Amended Complaint on June 21, 2021. Dkt. No. 14. The amended
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`complaint dropped his request for statutory and punitive damages. Google filed a
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`motion to dismiss the amended complaint on July 6, 2021. Dkt. No. 20.
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`The district court held a hearing on Google’s motion to dismiss on August
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`12, 2021. During the hearing, the court informed Pilkin that it was inclined to
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`dismiss his lawsuit because “the piece of work that you are saying is entitled to
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`copyright protection is not entitled to copyright protection.” ER-77. The court
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`explained that “those ideas [in the Work], those processes, those hypothetical ways
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`that a map might look are not entitled to copyright protection. Copyright protection
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`at most would be just for the words that you have on the paper.” Id. The court
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`gave Pilkin an opportunity to present argument, asking him to specifically address
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`whether the Work is copyrightable, but was not persuaded by his
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`presentation. ER-77-80.
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`Following the hearing, the district court issued an order dismissing the case
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`without leave to amend. Quoting this Court’s decision in Bikram’s Yoga Coll. of
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`India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1037-38 (9th Cir. 2015), the
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`court observed that “the copyright for a work describing how to perform a process
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`does not extend to the process itself. To the extent that such processes are protected
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`at all, it must be under patent law.” SER-010. Accordingly, “[w]hile the book
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`explaining a process or design is itself copyrightable,” “[t]he use of the art is a
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`totally different thing from a publication of the book explaining it.” Id. (quoting
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`Advanz Behavorial Mgmt. Res., Inc. v. Miraflor, 21 F. Supp. 2d 1179, 1183 (C.D.
`
`Cal. 1998)).
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`The court then applied those principles to Pilkin’s Work. As the court
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`explained, the Work “describ[es] various alternative processes of implementing an
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`interactive map. . . Essentially, the Work describes a wide range of possible
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`expressions of the features described in it but does not actually convey any
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`particular expression of those features.” SER-010. After reiterating that “while a
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`written essay itself may be protected, the ideas and processes it describes cannot,”
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`the district court concluded that “the Work only contains unprotectable
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`ideas.” Id. Because Pilkin’s sole infringement claim rested on uncopyrightable
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`subject matter, the court found that any amendment would be futile and dismissed
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`the case with prejudice. SER-011. The court issued a final judgment, and this
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`appeal followed.
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`SUMMARY OF ARGUMENT
`Pilkin’s sole claim of copyright infringement fails because the map features
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`Google allegedly infringed and incorporated into Google Maps do not constitute
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`copyrightable subject matter. Pilkin’s essay describes in general terms how many
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`of these features would work, such as using certain kinds of symbols or applying
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`highlighting to certain landmarks. These are uncopyrightable ideas, especially
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`where, as here, they embody functional elements.
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`The district court correctly dismissed Pilkin’s claim with prejudice. The
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`appeal focuses on the “plausibility” of the copyright infringement allegations. The
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`district court, however, never questioned the “plausibility” of the allegations. It
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`assumed the factual allegations were true but concluded that the map suggestions
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`described in the essay are not themselves copyrightable subject matter. Because
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`there is no way to change the nature of these suggestions, the district court properly
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`dismissed the case without leave to amend.
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`STANDARD OF REVIEW
`This Court reviews de novo a dismissal by the district court for failure to
`
`state a claim. Parents for Privacy v. Barr, 949 F.3d 1210, 1221 (9th Cir. 2020),
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`cert. denied, 141 S. Ct. 894 (2020). The Court should affirm such a dismissal
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`where “a plaintiff’s allegations fail to set forth a set of facts that, if true, would
`
`entitle the complainant to relief.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S.
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`554, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The Court
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`accepts as true “all well-pleaded factual allegations,” but is not “required to accept
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`as true legal conclusions couched as factual allegations.” Parents for Privacy, 949
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`F.3d at 1221. The Court “can affirm the district court’s dismissal on any ground
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`8
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`supported by the record, even if the district court did not rely on the ground.” Livid
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`Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th Cir. 2005).
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`ARGUMENT
`
`I.
`
`THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE
`LIST OF SUGGESTED MAP IMPROVEMENTS DESCRIBED IN
`PLAINTIFF’S WORK IS UNCOPYRIGHTABLE SUBJECT
`MATTER
`A.
`The District Court Correctly Invoked the Idea-Expression Dichotomy.
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`The district court dismissed the Complaint based on the long-established
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`idea-expression dichotomy. It is a basic principle of copyright law that can be
`
`traced back to the Supreme Court’s decision in Baker v. Selden, 101 U.S. 99
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`(1879). There, the plaintiff developed an accounting and bookkeeping system that
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`he described in a book. Id. at 100. The book featured certain forms with ruled
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`lines and headings that illustrated how to use the system. Id. The plaintiff tried to
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`use his copyright to prevent others from using the forms or his system without
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`permission. The Supreme Court rejected that argument and drew a clear
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`distinction between the book and the accounting system it described: “[t]he
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`description of the art in a book . . . lays no foundation for an exclusive claim in the
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`art itself.” Id. at 105; see also Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499 U.S.
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`340, 347 (1991). Because others could not use the accounting system without
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`employing the methods and substantially the same forms, neither were
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`copyrightable. Baker, 101 U.S. at 105. The author could only secure protection
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`for those ideas by seeking a patent from the government. Id. at 102.
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`The district court leaned heavily on this Court’s recent decision in Bikram’s
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`Yoga, 803 F.3d 1032. SER-010-11. That case concerned whether the copyright in
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`a book extends to a sequence of yoga poses described in the book. Id. at
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`1034. This Court explained that the “copyright for a work describing how to
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`perform a process does not extend to the process itself,” and found the sequence of
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`yoga poses to be “an idea, process, or system excluded from copyright
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`protection.” Id. at 1038, 1040. To illustrate the difference, the Court observed that
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`“the copyright for a book describing how to perform a complicated surgery does
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`not give the holder the exclusive right to perform the surgery.” Id. at 1039. To
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`decide otherwise would give the author a legal monopoly over ideas or processes
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`without subjecting the work to the more rigorous standards of patent law. Id. at
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`1040-41. Such an outcome would undermine rather than promote innovation by
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`preventing others from engaging with the ideas. Id. at 1041.
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`This Circuit has reaffirmed the idea-expression distinction on many
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`occasions. See, e.g., Barnett v. Ubimodo, Inc., 2021 WL 5001710, at *1-2 (9th Cir.
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`Oct. 28, 2021) (copyright protection in a flowchart illustrating how to write
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`computer code does not extend to the ideas or processes reflected therein);
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`Corbello v. Valli, 974 F.3d 965, 976 (9th Cir. 2020), cert. denied, 141 S. Ct. 2856
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`10
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`(2021) (concluding that an autobiography’s description of various events were
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`unprotected historical facts). Using, emulating, or building upon an idea contained
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`in another’s work is not a basis for copyright infringement. See, e.g.,
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`Rentmeester v. Nike, 883 F.3d 1111, 1121 (9th Cir. 2018) (copyrighted photograph
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`of a leaping Michael Jordan “does not confer a monopoly on that general ‘idea’ or
`
`‘concept” and other photographers are free to take photos of Jordan in a similar
`
`pose); Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 915 (9th Cir. 2010) (the
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`concept of “depicting a young, fashion-forward female with exaggerated features”
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`is an unprotectable idea).
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`With the idea-expression dichotomy at the center of its analysis, the district
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`court analyzed the contents of Pilkin’s two-page essay. Pilkin made clear there
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`was no allegation that Google copied the words of his essay. His claim instead
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`was that Google took the suggested features described therein and implemented
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`them in Google Maps. The district court accordingly focused on the essay’s bullet-
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`point list of eight map features. SER-010. The features were described in general
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`terms. There were no diagrams, illustrations, or examples of the suggested
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`features. Pilkin did not create an actual map based on his suggestions. Nor did he
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`provide any computer code to implement them. For example, the essay suggests
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`highlighting the contours of a home or address when a user interacts with that
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`location. The essay describes the function of the feature. It does not, however,
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`specify any particular way of applying the highlighting or present a sample map
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`with the suggested highlighting.
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`It is clear that the only copyrightable elements in Pilkin’s work are the words
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`Pilkin used in his essay. The suggestions described therein, however, are not
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`copyrightable. Pilkin’s thoughts on how to improve online maps are no more
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`copyrightable than the accounting system and forms in Baker or the yoga poses
`
`and sequences in Bikram’s Yoga. Just as Selden could not monopolize an
`
`accounting system by describing it in his book, Pilkin cannot monopolize the
`
`suggested map features by describing them in his essay.
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`B.
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`Pilkin’s List of Functional Map Features Are Uncopyrightable Ideas.
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`Much of Pilkin’s opening brief is spent walking through the basic principles
`
`of copyright protection. Most of it is simply not relevant to the district court’s
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`ruling on the motion to dismiss. No one has questioned whether Pilkin’s essay is
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`original, fixed in a tangible medium of expression, or a literary work eligible for
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`copyright protection. Br. 6-9, 21. No one raised any issue with protecting his
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`foreign work even though the copyright was never registered in the United
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`States. Br. 9. He is emphatic that his suggestions are not a procedure, method of
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`operation, or system; while debatable, nothing in the district court’s ruling relies on
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`characterizing the suggestions in those terms. Br. 14-15. Pilkin even
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`acknowledges the idea-expression distinction and, assuming copyrightable
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`expression was used, the later work would be considered an unauthorized
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`derivative work. Br. 22. None of this matters.
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`The real issue is whether the suggested map features described in Pilkin’s
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`essay are more properly considered ideas or expression. Pilkin bases his argument
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`on a misapplication of the merger doctrine. Under the merger doctrine, “courts
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`will not protect a copyrighted work from infringement if the idea underlying the
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`copyrighted work can be expressed in only one way, lest there be a monopoly on
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`the underlying idea.” Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.
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`2000). Pilkin seems to assume the inverse: if there are many ways of expressing
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`an idea, then the merger doctrine does not apply and the various expressions are
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`copyrightable. Br. 12. Based on this construct, Pilkin argues that the idea is “an
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`interactive map” and “the different features” represent his expression of that
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`idea. Br. 13.
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`The problem with Pilkin’s argument is that there is no “inverse” merger
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`rule. That an “idea” can be specified in many different ways does not mean each
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`different way is a copyrightable expression. Take for example the idea of a
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`“romantic story.” A romantic story can take many forms, including “love at first
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`sight,” “star-crossed lovers,” “friend to lover,” “a perfect match,” etc. The fact that
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`there are many variations does not mean they are each copyrightable expressions
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`of a “romantic story.” Each variation is itself nothing more than a generic story
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`idea not protected by copyright. No author can prevent any other from writing
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`their own “love at first sight” story. Similarly, the idea of “an interactive map” can
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`be specified with many different possible features. The fact that there are many
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`feature options does not make the features copyrightable expressions.
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`Pilkin relies on the Fifth Circuit’s decision in Mason v. Montgomery Data,
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`Inc., but that case lends him no support. 967 F.2d 135 (5th Cir. 1992). There, the
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`plaintiff created a number of real estate ownership maps that depicted the
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`“location, size, and shape of surveys, land grants, tracts, and various topographical
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`features.” Id. at 136. The court decided that the ideas embodied in the maps could
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`be expressed in a number of ways, and so the ideas did not merge into their
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`expression. Plaintiff had exercised his discretion in choosing the particular
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`placement of features, the size of different elements, and the dimensions of tracts
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`of land. The specific expression that is contained in each map is thus
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`copyrightable.
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`But Mason does not help Pilkin. If Pilkin had created a map reflecting his
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`discretion in choosing how to express each feature in terms of placement, size,
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`dimensions, etc., then he, too, would have a copyrightable expression of a map that
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`cannot be infringed. Pilkin never did that. And Mason did not hold that the
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`plaintiff could prevent any other mapmaker from using features, different
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`elements, or tracts of land. What is copyrightable is the particular expression of
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`those features, not the idea of those features.
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`Fortunately, this Circuit has provided guidance on how to distinguish
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`between ideas and expression, particularly with respect to functional features. The
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`district court, quoting Sega Enterprises Ltd. v. Accolade, Inc., correctly noted that
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`“[w]orks that have ‘strong functional elements’ receive less protection than works
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`of fiction.” SER-010 (quoting 977 F.2d 1510, 1524 (9th Cir. 1992)). “Computer
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`programs,” for instance, “are, in essence, utilitarian articles—articles that
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`accomplish tasks. As such, they contain many logical, structural, and visual
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`display elements that are dictated by the function to be performed.” Sega, 977
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`F.2d at 1524. Accordingly, certain “aspects” of computer programs that represent
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`“functional requirements” for compatibility with other programs are no more
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`entitled to copyright protection than “[t]he systems described in accounting
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`textbooks” or “the basic structural concepts embodied in architectural plans.” Id.
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`at 1525, 1526; see also Sony Computer Entm’t , Inc. v. Connectix Corp., 203 F.3d
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`596, 605 (9th Cir. 2000), cert. denied, 531 U.S. 871 (2000) (refusing to extend
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`protection to the “functional concepts in [Sony’s] software,” which would require
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`it to “satisfy the more stringent standards of the patent laws”).
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`The suggestions contained in Pilkin’s essay are exactly the type of functional
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`concepts that have been denied copyright protection. For instance, the creator of a
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`video bingo game cannot extend his copyright to functional features like a button
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`used to add a user, a menu of options within the game, or “a key describing
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`winning patterns and corresponding prizes.” Dream Games of Ariz., Inc. v. PC
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`Onsite, 561 F.3d 983, 989 (9th Cir. 2009) (describing these functions as
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`unprotectable elements). By the same token, in creating a user interface for its
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`desktop computers, “Apple cannot get patent-like protection for the idea of a
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`graphical user interface” or more specific ideas such as the “use of windows to
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`display multiple images on the computer screen” or the “use of menus to store
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`information or computer functions in a place that is convenient to reach.” Apple
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`Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443-44 (9th Cir. 1994), cert.
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`denied, 513 U.S. 1184 (1995) (finding that “[n]o copyright protection inheres in
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`these ideas”).
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`The features described in Pilkin’s essay for an online interactive map are
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`similarly functional. His description of how one can use an animated image, how
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`symbols or text might respond to user interaction, how users might zoom in on a
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`map, etc. all concern how certain map features would function. Creating a map
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`with these features will require further choices since the features can be expressed
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`in any number of ways. A mapmaker would have to draw the animated image,
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`specify exactly what the animation will look like, and how it will behave in
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`different circumstances. As in Mason, the actual expression of these features in a
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`particular map is likely copyrightable. As in Sega, Bikram’s Yoga, and Baker, the
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`idea of a feature and how it functions is not copyrightable.
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`If Pilkin could get “patent-like protection” for the idea of using animated
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`images for map symbols, he could bar any map creator from designing their own
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`animated images. This would foreclose myriad original expressions stemming
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`from this one functional idea. Apple Computer, Inc., 35 F.3d at 1443. That would
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`thwart the very competition and innovation that copyright law is intended to
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`foster. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742
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`(1971). Because Pilkin’s claim is premised solely on functional ideas, it fails as a
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`matter of law.