Arney left CA to work on Altai's ZEKE program, taking the VSE and MVS versions of the source code for ADAPTER with him. Using his knowledge of ADAPTER, Arney then convinced Altai to restructure the program to include a program translator to interface with various operating systems. Arney created the translator OSCAR 3.4 for Altai in which about 30% of OSCAR's source code was taken directly from CA's ADAPTER code. In 1988, CA discovered Altai's use of the CA ADAPTER code and brought an action for copyright infringement and trade secret misappropriation against Altai. In response, Altai ordered a clean room rewrite of the copied portions of the code to be performed by eight programmers who had no knowledge or involvement with the previous OSCAR code. This new program was released as OSCAR 3.5. In the judgment of the United States District Court for the Eastern District of New York, the Honorable George C. Pratt, United States Circuit Judge found that OSCAR 3.4 was a copyright infringement of CA's CA-SCHEDULER and awarded CA $364,444 in damages and apportioned profits. The district court ruled that OSCAR 3.5 rewrite, on the other hand, did not constitute copyright infringement. It also ruled that the state law trade secret claims were preempted by the federal Copyright Act, and thus Altai was not liable for trade secret misappropriation. Initially, both parties appealed the judgment. Altai appealed the judgment on OSCAR 3.4, but subsequently dropped the claim. CA appealed the judgment on OSCAR 3.5 and preemption on trade secret misappropriation. Relevant law Prior to this case, it had been well established that software can be protected by copyright law. In particular, previous cases have shown that literal elements of program code are protected by copyright (in Apple Computer, Inc. v. Franklin Computer Corp. among others). The issue in this case is whether and to what extent copyright protects non-literal elements of program code, the structure, sequence and organization of the program. Although a few courts had examined this issue, this was the first of its kind in this circuit. Issues In the appeal, CA disputed the district court's finding that the OSCAR 3.5 did not have substantial similarity to CA's ADAPTER. They claimed that the district court did not apply a proper test that took into consideration the copying of non-literal elements of computer software. They claimed that despite the clean room rewrite, there was substantial