Cisco Systems, Inc. v. Arista Networks, Inc. was a copyright case in the U.S. District Court for the Northern District of California over Arista’s use, in its switch operating system, of multi-word commands from the command-line interface (CLI) of Cisco’s IOS software. Cisco filed suit on 5 December 2014.[7] After a trial in late 2016, the jury found copyright infringement but found it excused under the scènes à faire doctrine, and the court entered judgment for Arista on 19 December 2016.[3][2] Cisco appealed. Before the Federal Circuit ruled, the parties agreed on 6 August 2018 to settle their disputes in several forums, and at their joint request the district court vacated the judgment on 1 October 2018.[3] Under the settlement Arista agreed to modify its CLI.[5] As reported by eWeek, Arista agreed to pay Cisco USD 400 million.[6]
Background
Cisco’s complaint described Arista as a company founded by former Cisco employees, listing senior Arista executives who had previously worked at Cisco.[1] Cisco’s networking products are configured through the IOS CLI, a set of text commands, and Cisco publishes user manuals and guides describing IOS, the CLI and how to configure its products.[1] The complaint quoted an Arista co-founder as saying Arista chose to “[p]rovide familiar interfaces to ease adoption”, including a “standard CLI that … retains familiar management commands”.[1]
The dispute
Cisco’s second amended complaint of July 2015 pleaded copyright infringement and patent infringement.[1] Cisco alleged that “the expression and organization of over 500 of the multi-word commands in Cisco’s CLI are copied verbatim” in Arista’s products, encompassing more than 40 percent of Arista’s multi-word commands, and that Arista had also copied Cisco’s documentation.[1] The related disputes between the companies, listed in the later settlement term sheet, included a separate patent case, two U.S. International Trade Commission investigations and an antitrust case brought by Arista against Cisco (No. 5:16-cv-00923-BLF).[5]
Decision or outcome
Verdict and judgment (2016)
The jury trial ran on fourteen days from 18 November to 14 December 2016, and the jury returned its verdict on 14 December 2016.[2] As the court later summarised it, the jury found copyright infringement but found that it was excused under the scènes à faire doctrine.[3] Consistent with the verdict, the court entered judgment for Arista on 19 December 2016, ordered that Cisco take nothing, dismissed any remaining claims and defences, and awarded Arista its costs.[2] Scènes à faire is the doctrine, applied to software in Computer Associates v. Altai, that expression dictated by external factors or standard in a field is not protected.
Appeal and settlement (2018)
Cisco appealed to the Federal Circuit (No. 2017-2145). Briefing and oral argument were completed, but the court had not decided the appeal when the parties signed a binding term sheet effective 6 August 2018 resolving the litigation between them in several forums.[3] The public copy of the term sheet provides, among other things:[5]
- dismissal of the ITC proceedings, Cisco’s separate patent case and Arista’s antitrust case, and mutual releases of claims relating to the asserted patents and to antitrust or unfair competition;
- a five-year stand-down on patent and antitrust claims over existing products, and on copyright claims over existing user interface material, with a three-year stand-down and dispute resolution process for new products;
- that within a transition period Arista would remove the multi-word commands and help description strings listed in appendices and replace them with new commands, with disputes over the modified CLI to be resolved by arbitration, subject to a backward compatibility provision under which Arista’s Extensible Operating System may continue to read and interpret customer input (the full text is not visible in the public copy);
- that the parties would jointly seek vacatur of the copyright judgment, and that if vacatur failed and the judgment were later reversed or remanded, Arista would make further changes to screen outputs and commands.
The district court indicated on 5 September 2018 that it would grant a motion to vacate. On 10 September 2018 the Federal Circuit granted the parties’ joint motion to remand the case for that limited purpose “in light of the parties’ settlement”.[4] On 1 October 2018 the district court vacated the judgment under Rule 60(b). It noted that both parties, including the party in whose favour judgment had been entered, sought vacatur under a negotiated agreement, and found that the balance of equities favoured it.[3] The public copy of the term sheet refers to a “Monetary Payment” but does not show the amount; as reported by eWeek, it was USD 400 million.[5][6]
Significance for software licensing and SAM practice
The case raised, without an appellate answer, whether the command vocabulary and hierarchy of a network operating system’s CLI can be protected by copyright, and how scènes à faire applies to commands that customers and engineers have come to expect. Because the judgment was vacated and the Federal Circuit did not rule, the case is not a precedent on those questions.[3] The related question for Java APIs was decided by the Supreme Court in Google v. Oracle.
For customers, the settlement is an example of a vendor dispute that changed a product’s interface: Arista agreed to replace listed commands and help strings in products sold after a transition period, subject to a backward compatibility provision.[5] Cisco’s own licensing is covered in Cisco Smart Licensing and Smart Accounts.
Lessons learned
- Interfaces can be claimed. Cisco’s claim was about the expression and organisation of CLI commands, not about copied source code.[1] Organisations that build tools or products compatible with a vendor’s interface should expect that interface compatibility may be contested.
- A vacated verdict is not settled law. Arista won at trial, but the judgment was vacated as part of a settlement before the appeal was decided.[3] Do not rely on the jury’s scènes à faire finding as authority.
- Watch for interface changes after settlements. The settlement required Arista to replace listed multi-word commands and help strings and set a dispute process for new commands.[5] Automation scripts and operating procedures that depend on vendor command syntax should be tested when a vendor announces such changes.