Recent American case law on copyright in computer programs

Recent American case law on copyright in computer programs

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RECENT AMERICAN CASE LAW ON COPYRIGHT IN COMPUTER PROGRAMS a computer program to-make or copy an adaptation, arrangement, altered version or translation of the program; and "translation '1 is defined by s.21(4) as including a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code. Since a conversion between different computer languages will often leave a negligible amount of literal similarity between the versions, it is clear (albeit of essentially negative significance) that s.21 and Art. 4 contemplate the possibility that infringement may occur despite the absence of any substantial literal similarity between the codes of the respective programs; that is, when read as a sequence of programming-terms (in the case of source-code), or simply of bytes (in the case of objectcode), in the same way as one may read an 'ordinary' literary work as a sequence of sentences, words or letters. Otherwise, however, these provisions help little in determining positively the nature or extent of the objective similarity which is necessary for there to be infringement.

It is now generally accepted in both Europe and America that copyright (rather than, for example, patents) 2 normally constitutes the appropriate form of intellectual-property protection for computer programs, and that they should be assimilated to literary works for copyright purposes. Thus, in the United Kingdom, s.3(1) of the Copyright, Designs and Patents Act 1988 defines a '~literary work" as including a computer program. 3 Similarly, at European Community level, Art. 1 of Council Directive 91/250 on the legal protection of computer programs 4 require the Member States, by 1 January 1993, s to protect computer programs by copyright as literary works within the meaning of the Berne Copyright Convention. Prior to the Directive, legislation specifically providing for copyright protection of computer programs had been enacted in Germany, 6 France and Spain, as well as the United Kingdom; and copyright protection had been accorded to computer programs by case law, in advance of specific legislation, in France, Germany, Italy and the Netherlands, as well as the United Kingdom. 7 In the United States, an amendment adopted in 1980 to the federal Copyright Act 19768 has made it clear that copyright protection extends to computer programs, and, as a federal Court of Appeals has recently remarked, ~the legislative history leaves no doubt that Congress intended them to be considered literary works. "9 In itself, however, this consensus, in favour of according to computer programs similar copyright protection to that accorded to 'ordinary' literary works, leaves numerous problems unsolved, particularly as to the character or extent of the similarity between programs which is necessary (in addition to derivation) to justify a finding that the creation or marketing of the later program version amounts to infringement of the copyright in the earlier program. In this respect, British legislation and case law, and European Community legislation, provides only a limited amount of explicit guidance.

BRITISH A N D ADAPTATIONS

COMMUNITY

COMMUNITY LEGISLATION: EXPRESSION AND INTERFACES

IDEAS,

It is generally recognized as a central principle of copyright law that protection is given only to a particular form of expression, and does not extend to an underlying idea. Obviously the distinction offers the courts a wide range of choice in deciding where the line should be drawn between idea and expression. Although the idea/expression dichotomy is not explicitly referred to in the British copyright legislation, it has often received at least lip-service in the British case law, 1° and it has now been explicitly adopted at Community level by Directive 91/250, Art. 1(2) of which specifies that protection is to apply to the expression in any form of a computer program, but not to ideas or principles which underlie any element of a computer program, including those underlying its interfaces. In the United States, S.102(b) of the Copyright Act specifies more elaborately that: '/In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work// Except in relation to interfaces, Directive 91/250 gives little specific guidance on how the distinction between ideas and expression should be drawn. 11 "Interfaces '~ are in effect defined in the Preamble to the Directive as the parts of a program which provide for the logical or physical interconnection and interaction between elements of software and hardware necessary to permit elements of software and hardware to work with other software and hardware and with users in the ways in which they are intended to function; including by way of enabling programs to exchange information and mutually to use the information which has been

LEGISLATION:

Under Art. 4(b) of Directive 91/250, and ss. 16 and 21 of the (British) Copyright, Designs and Patents Act 1988, as amended by SI 1992/3233, it is primary infringement of the copyright in

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exchanged.It seems necessary, in interpreting the Directive, to distinguish clearly between electronic interfaces and user interfaces. Electronic interfaces refer to methods by which a program accesses, controls or cooperates with hardware (or with another program running simultaneously), or by which a program transfers data to or receives data from another program (whether they are running simultaneously or successively). Such electronic interfacing will ideally be invisible to a non-inquisitive user. On the other hand, a user interface comprises the way a program presents itself and its data to a user, via the screen display or other output device, and how it enables him to give it effective commands via the keyboard or other input device (such as a mouse). Since the reference in the Preamble to the Directive is to interconnection and interaction between elements of software and hardware, while users are referred to only in describing the intended result, it seems clear that the strong indication given by the Directive, that necessary interfaces should not receive copyright protection, is aimed at electronic interfaces, and does not extend to user interfaces. On the other hand, while the Directive endeavours to avoid the appearance of pre-empting the interpretation of the Berne Copyright Convention (to which the Member States, rather than the Community, are party) as to how the distinction between idea and expression should be drawn, the Directive indicates clearly a policy that necessary electronic interfaces should be freely copyable.This policy is confirmed and further implemented by Art. 5(3) of the Directive, which entitles a rightful user of a copy of a program, when lawfully loading, displaying, running, transmitting or storing the program, to observe, study or test its functioning in order to determine the ideas and principles which underlie any of its elements; and by Art. 6, which is designed to facilitate the creation of 'inter-operable' programs, such as an application program which needs to make calls to an operating-system program, where the information necessary to achieve interoperability has not been made readily available. The Preamble explains that interoperability refers to the functional interconnection and interaction whereby programs can exchange information and use the information exchanged, as well as indicating that the refusal of a dominant supplier to make available information necessary for interoperability could infringe Art. 86 of the EEC Treaty. Where the information necessary to achieve interoperability has not been made readily available, Article 6 of the Directive permits a rightful user of a copy of a program to reproduce or translate the relevant parts of its code, to the extent necessary to achieve the interoperability of an independently created program. As a safeguard it adds that information so obtained must not be used for other purposes, and especially not for the development or marketing of a program substantially similar in its expression to the original program; and that the right must be construed narrowly, so as to avoid unreasonably prejudicing the copyright owner's legitimate interests or conflicting with a normal exploitation of his program. C H A N G E S IN THE A M E R I C A N A P P R O A C H Until recently the leading American decision was that of the federal Court of Appeals for the Third Circuit in Whelan Associates v. Jaslow Dental Laboratories, 12 which involved

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database-management programs for assisting in the operation of a business supplying dental equipment. The defendant, with access to the plaintiff's source code, had rewritten the program in a different language. The plaintiff's source-code was in EDL for an IBM Series One computer, and the defendant's in BASIC, so as to enable it to run on other computers. In view of the different language, there was no literal similarity between the respective source-versions. Despite this, infringement was found on the basis of evidence of substantial similarity in complex data-file structures, in screen outputs, and in five qualitatively important sub-routines. The Court specified clearly that literal similarity of code is not necessary for infringement, and that copyright protection of a computer program may extend beyond the program's literal code to its structure, sequence and organization. 13 Similarly in England, non-literal similarity (in terms of the selection and grouping of functions in programs for translating source code) played a part in the grant of an interlocutory injunction by Falconer J in MS Associates v. Power. TM The recent decision of the federal Court of Appeals for the Second Circuit in Computer Associates v. Altai is criticizes other aspects of the reasoning in Whelan, but accepts the principle that non-literal similarities can be sufficient to establish infringement. In British or European terms, the acceptance in principle of non-literal, structural similarity as a basis for finding infringement seems justifiable on two grounds: firstly, because of the provisions on adaptations and translations contained in s.21 of the 1998 Act and Art. 4 of Directive 91/250 - the facts of Whelan, where the defendant rewrote the plaintiff's source code in a different language, providing a clear example of translation; and secondly, by analogy with a rule accepted by British case law for 'ordinary' literary works, that it is infringement to take a plot, or a series of incidents in combination, from a novel or play, for use in a play or film, even if not a single sentence is similar in form, for copyright protection of a novel or play extends to the situations contained therein. ~6 As well as accepting structural similarity as a basis for finding infringement, the decision in Whelan also adopted an approach to the distinction between idea and expression which was very favourable to plaintiffs. It held that the purpose or function of a utilitarian work constitutes its unprotectable idea - in the instant case, to aid in the business operations of a dental laboratory. Since that function, performed by the plaintiff's program, could be implemented through a variety of structures, the structure chosen constituted a protectable expression. It is mainly on the operation of the idea/expression distinction that recent American cases - Computer Associates v. Altai; 17 Brown Bag v. Symantec; TM Lotus v. Borland, 19 following and explaining Lotus v. Paperback Software; 2° and Apple v. Microsoft and Hewlett-Packard 21 - have rejected Whelan and adopted an approach much more favourable to defendants. Fundamentally, the change in approach consists in rejection of a broad, overall assessment of substantial similarity (in terms, for example, of 'look and feel'), and insistence on dissection of the plaintiff's program, with a view to elimination of its unprotectable features (in terms of idea, merged idea and expression, and unoriginality), before the comparison between the programs is made.

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IDEA, EXPRESSION AND MERGER: THE LOTUS CASES The recent American decisions place a renewed emphasis on the well-established doctrine of merger. The doctrine was clearly explained by Keeton J in Lotus v. Paperback Software, 22 which involved copying of the user interface of a computer program. He emphasized, first, that where a particular expression is the only possible way of expressing an idea, or goes no further than the obvious, then it is inseparable from the idea itself, and protection of such an expression must be refused because it would effectively amount to protection of the idea. Secondly, he explained that, if a particular expression is one of a quite limited number of the possible ways of expressing an idea, the expression is again not protectable, since otherwise parties, by copyrighting a mere handful of forms, could exhaust all possibility of future use of the substance, and the subjectmatter would be appropriated by permitting the copyrighting of its expression.23 On this basis copyright protection may be denied to commonplace incidents, characters or settings used in literary works. 24 Thus, for Keeton J, the test becomes whether the expression of an idea has elements that go beyond all functional elements of the idea itself, and beyond the obvious, and whether there are numerous other ways of expressing the idea; if so, those elements of expression, if original and substantial, are protectable. He emphasized also that it is impossible completely to disentangle an idea from an expression of that idea, and that the matter is one of degree; there is no 'brightline' test; the court must choose an appropriate level of abstraction, after an evaluative weighing of all relevant characteristics of the works in question, and all relevant circumstances of their development and use. His decision was effectively in favour of protection of a distinctive user-interface against deliberately close copying. Lotus v. Paperback Software involved spreadsheet programs for IBM PCs: the market-leader, LOTUS 1-2-3, and a 'clone', advertised by its producer as a 'workaiike', VP-PLANNER. In holding the clone-maker liable for copying the user-interface of LOTUS 1-2-3, Keeton J accepted evidence that the bulk of the creative work is in the conceptualization of a computer program and its user interface, rather than in its encoding, and that creating a suitable user interface is a more difficult intellectual task, requiring greater creativity, originality, and insight, than converting the user interface design into instructions to the machine. He concluded that a menu command structure was capable of being expressed in many (if not an unlimited number of) ways, and that the command structure of 1-2-3 was an original and non-obvious way of expressing a command structure. Accordingly, the menu structure, taken as a whole - including the choice of command terms, the structure and order of those terms, their presentation on the screen, and the long prompts was an aspect of 1-2-3 that was not present in every expression of an electronic spreadsheet, and was incontrovertibly a substantial part of the work. The user interface of 1-2-3 was its most unusual element, and was the aspect which had made the program so popular. The trouble taken by the defendants to copy that element was a testament to its substantiality. He also explained that, even if the defendant's program would

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otherwise have been a commercial failure, and even if no other technological ways of achieving macro and menu compatibility had existed, the desire to achieve 'compatibility' or 'standardization' could not override the rights of authors to a limited monopoly in the expression embodied in their intellectual work. Moreover, as regards macro compatibility, the defendant could have provided a translation device; and as regards incremental improvement, the defendant could have sought a licence to use 1-2-3's menu structure and command facility, or offered to sell its new features to Lotus for inclusion in future versions of 1-2-3, or marketed them as an 'add-in' to 1-2-3. In respect of the idea/expression distinction, Keeton J accepted that the idea of developing an electronic spreadsheet was not copyrightable, being both functional and obvious. Also functional and obvious (and used in a wide variety of programs) was the idea for a two-line moving cursor menu. But it did not follow that every possible method of designing a menu system that included a two-line moving cursor was unprotectable. Another element shared by many programs was the basic spreadsheet screen display resembling a rotated 'L', and there was a rather low factual limit on the number of ways of making a computer screen resemble a spreadsheet. Another merging element, as being an essential detail present in most expressions, was the designation of a particular key (in Lotus 12-3, the '1') which, when pressed, would invoke the menu command system, since the number of suitable keys was very limited. Other essential or obvious elements of expression included the use of the ' + ', '-', '*', and '/' keys within formulas to indicate respectively addition, subtraction, multiplication, and division, and the 'enter' key to place keystroke entries in the cells. On the other hand, he found that distinctive details of expression were constituted by the precise "structure, sequence, and organization" of the menu command system. The idea of a menu structure - including the overall structure, the order of commands in each menu line, the choice of letters, words, or "symbolic tokens" to represent each command, the presentation of these symbolic tokens on the screen (i.e., first letter only, abbreviations, full words, full words with one or more letters capitalized or underlined), the type of menu system used (i.e., one-, two-, or three-line moving-cursor menus, pull-down menus, or command-driven interfaces), and the long prompts - could be expressed in a great many ways. The fact that some of the specific command terms were obvious or merged with the idea of the particular command term did not preclude copyrightability for the command structure taken as a whole. If particular characteristics not distinctive individually had been brought together in a way that made the whole a distinctive expression of an idea, one of many possible ways of expressing it, then the whole could be copyrightable. Keeton J gave a similar decision in Lotus v. Borland, 2s which involved two leading MS-DOS spreadsheet programs, LOTUS 12-3 and Borland's QUA1-FRO. The latter was in most respects an original creation, but it included an 'emulation interface', selectable by the user, and designed to be compatible with 1-23. In holding that the inclusion of the emulation interface infringed copyright in 1-2-3, Keeton J now recognized that the selection of functional operations which the spreadsheet

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would perform must be considered part of the idea of the program, so that copyrightability must depend on expression distinct from the selection of the set of spreadsheet operations which could be performed. Accordingly, he ruled that the idea of 1-2-3 was of a menu-driven electronic spreadsheet, with a user interface involving a system of menus, each menu consisting of less than a dozen commands, arranged hierarchically, forming a tree in which the main menu was the root/trunk of the tree and sub-menus branched off from higher menus, each sub-menu being linked to a higher menu by operation of a command, so that all the specific spreadsheet operations available would be accessible through the paths of the menu command hierarchy. However, he still took the view that the 1-2-3 user-interface included identifiable elements of expression, not essential to every expression of the idea, since a very satisfactory spreadsheet menu-tree could be constructed using different commands and a different command structure from those of 1-2-3, as indeed Borland had done for use in QUATIRO's 'native' mode. There was infringement since in its emulation interface Borland had copied the Lotus menu commands, menu command structure, macro language, and keystroke sequences substantially as they were, and it was immaterial that Borland had also added functional and expressive elements that did not exist in 1-2-3. Some English support for Keeton J's approach to idea, expression and merger may be found in Total Information Processing Systems v. Daman, 26 where Judge Baker QC (in the Chancery Division) effectively ruled that there is no infringement of copyright in a program where the copying is confined to the data-file structures used by the program, which is a type of necessary electronic interface. He rejected an application for an interlocutory injunction by the owner of the copyright in related payroll and estimating programs, designed to be used together by the construction industry. The applicant sought to prevent the use, in the respondent's competing payroll program, of code relating to the specification of the data-file format of the interface file used by the applicant's programs for transferring payroll data for use in estimating. The use of the same data-file format by the respondent's payroll program made it possible for a building contractor to use the respondent's payroll program, instead of the applicant's payroll program, with the applicant's estimating program. In rejecting the application, Judge Baker referred to the principle that copyright does not exist in ideas but only in their expression; and cited Kenrick v. Lawrence 27 as establishing that if there is only one way of expressing an idea, that way is not the subject of copyright. He also cited Lotus v. Paperback, and suggested that the specification of a datafile format used by a computer program may be unprotected as the sole method of expressing the relevant idea. However he also reasoned that the code specifying such formats forms only a small, and thus not a substantial, part of the code comprising the program in question. The source-code copied from the applicant's estimating program in order to achieve the linkage was quantitatively small, and infinitesimal in relation to the applicant's estimating program as a whole, though admittedly for the respondent's purpose it was crucial. 28 Moreover code having such a function resembled the table of contents in a

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book, and such a table would seldom amount to a substantial part of the book.

ABSTRACTION, FILTRATION AND COMPARISON A systematic approach, involving exclusion from protection, not only of ideas and of expressions which merge with ideas, but also of non-original features, was adopted and explained by the federal Court of Appeals for the Second Circuit in Computer Associates v. Altai. 29 The case involved electronic interfaces contained in two job-scheduling programs, designed to run on IBM mainframes, known respectively as CASCHEDULER and OSCAR 3.4 and 3.5. Each interface enabled the program containing it to run under several different operating systems. The initial version of the defendant's interface undoubtedly infringed by direct literal copying of the plaintiff's source code, but after complaint the defendant had rewritten its interface code on a 'clean-room' basis, and its revised version, from which all trace of the plaintiff's literal code had been removed, was held not to infringe. While accepting that copyright protection extends beyond literal similarities in code and covers similarities in structure, Walker Cid clarified the concept of the "structure" of a program. He explained that "structure" refers to: the functions which each module or sub-routine will fulfil (such as, in a business ledger program, the task of updating a list of outstanding accounts receivable); the relationships between modules, through lists of parameters, which determine the form and content of data to be passed between modules; and the macros which enable the user to initiate a sequence of operations by a single command. He also emphasized that a computer program's ultimate function or purpose is the composite result of its interacting modules. Since each of these is itself a program, and thus has its own 'idea', the Whelan formulation that a program's overall purpose equates with the program's idea is inadequate. He therefore introduced a three-step procedure, comprising abstraction, filtration and comparison, in order to determine whether the non-literal elements of two computer programs are substantially similar. On this approach, abstraction requires the court to break down the plaintiff's program into its constituent structural parts; effectively by reverse engineering. Filtration requires the court to examine each part and sift out all non-protectable material. This involves application of the idea/expression distinction and the doctrine of merger, the taking account of external constraints, and the identification of material belonging to the public domain. The matter to be eliminated comprises: incorporated ideas; expression that is necessarily incidental to such ideas; and elements taken from the public domain. Finally, the ultimate comparison for substantial similarity must be between the filtered kernel(s) of creative expression left after the process of elimination, and the structure of an allegedly infringing program. Walker Cid elaborated on the process of filtration by explaining that under the doctrine of merger, protection is denied to expression which is necessarily incidental to the idea being expressed, on the principle that when there is essentially only one way to express an idea, the idea and its expression are inseparable. Moreover, the doctrine extends to expression which was dictated by considerations of efficiency, or was required by factors external to the program itself, if their effect

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was to narrow the practical range of choice so that only one or two forms of expression were workable options. Such external constraints include the mechanical specifications of the computer on which the program is intended to run; compatibility requirements of other programs with which a program is designed to cooperate; user demands; and widely accepted programming practices within the computer industry. He added, even more restrictively, that since similarly efficient structure is not particularly probative of copying, it should be disregarded in the overall substantial similarity analysis. On the facts he found that, after the rewriting of the defendant's program, the literal code retained no similarity at all. As regards the defendant's parameter lists and macros, only a few of these were similar to protected elements in the plaintiff's program, and these were too slight to warrant a finding of infringement. The others were either in the public domain or were dictated by functional requirements. The overlap between the list of services required for the programs was determined by the demands of the operating system and of the applications program to which it was to be linked through the interface; thus this aspect of the program's structure was not protected by copyright. Finally, similarities between the programs' organizational charts, which were simple and obvious, followed naturally from the theme rather than from the author's creativity. A somewhat similar approach, though less fully reasoned, had been adopted by the federal Court of Appeals for the Ninth Circuit in Brown Bag v. Symantec, 3° which involved two outlining programs for IBM-standard personal computers, PCOUTLINE and GRANDVIEW, which had been written by the same author, but copyright in which had been assigned to different software houses. The Court of Appeals affirmed a judgment below in favour of the defendant, which had dissected the plaintiff's program, and ruled unprotectable the various groups of features on which the plaintiff had relied. One group of features was unprotectable as representing a claim of copyright in fundamental concepts, such as the need to access existing files, or to edit or print the user's data. A second group, involving the listing of the same nine functions in the menu bar, was unprotectable as constituting the idea of an outlining program, or as involving differences in expression. The third group of features, concerning the use of pull-down windows, was considered commonplace or non-original, and the pull-down windows of the two programs also looked different. Moreover, as regards colour schemes, fewer than 10 of the 44 default colour selections in the defendant's program were the same as the default colour selections in the plaintiff's program.

FURTHER REJECTION OF OVERALL 'LOOK A N D FEEL': A p p l e v. Microsoft and Hewlett-Packard The restrictive approach to copyright protection of computer programs, and especially of electronic interfaces, which emerged in Computer Associates v. Altai, was followed in relation to user interfaces by Walker J, in the federal District Court for Northern California, in Apple v. Microsoft and Hewlett-Packard. 28 Apple claimed protection for the graphical user interface used in its MACINTOSH computer against copying in Microsoft's WINDOWS, versions 2 and 3.0, and in Hewlett-Packard's

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NEWWAVE; the defendants' programs being for MS-DOSbased microcomputers. Apple relied, however, on copyright, not in a program or literary work as such, but in an audio-visual work (in British terms, a film). Despite this Walker J rejected Apple's argument that the products should be compared in terms of their overall 'look and feel', and insisted on examining each feature for copyrightability. In the result, with very minor exceptions, he rejected Apple's claims on the ground that the various features copied (and not covered by a licensing agreement, relating to features used by Microsoft in WINDOWS version 1) were incapable of receiving copyright protection, either as being unoriginal (where they had been copied from earlier interfaces which had been created by third parties and were known to Apple's programmers), and/or as being or merging with an idea or process (where they were commonplace in the industry, or they amounted to no more than obvious, or the only possible method, or one of only a few possible methods, of satisfactorily achieving a technical result, account being taken of hardware constraints and of user convenience). He emphasized that, if the idea and the author's particular way of expressing that idea could not be separated, then only identical copying of the expression would be barred; and if technical or conceptual constraints limited the available ways to express an idea, then, even though there is more than one avenue of expression available, copyright would protect only against a virtually identical copy of the original. Moreover the functionality of a feature could deprive it of copyright protection, as an idea or process, under s.102(b) of the American Copyright Act. He noted, however, that the various doctrines that limit copyright protection are often barely distinguishable from one another. His concession that even identical copying would infringe where the available forms of expression were very limited seems questionable, but it does not seem to have affected the result, and can perhaps be understood as accepting protection for unnecessary embellishments, in so far as it is possible to distinguish them from the expression essential as one of the few available methods of expressing the idea. By way of rationale, he emphasized the function of copyright, in affording an incentive to authors, by preventing free-riders from appropriating the revenues needed to recoup the author's investment in creativity. On the other hand, it could have the effect of raising the costs of creation by making a useful building block of creativity the exclusive property of a prior author. So courts had developed limiting doctrines in response to the problem posed by these revenue and cost effects. Certain features of artistic works were so common or obvious that they required virtually no creative effort. The concepts of ideas, commonplace features, and lack of originality fell into this category of limiting doctrines. Moreover, placing some features of artistic works in the exclusive domain of one author would so raise the costs of creation for others as to impede the progress of the arts, and this accounted for the doctrines of merger, limited number of ways, and functionality. Accordingly, features which are covered by these limiting doctrines were protected only from virtually identical copying, for this was the province of the ultimate free-rider, who made no investment in creativity.

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Apple had attempted to claim as a copyrightable arrangement a 'look and feel' amounting to a graphical user interface based on a desktop metaphor and comprising: multiple windows serving as separate workspaces or mini-screens; the ability to open and close these windows; icons representing programs, files and documents; the use of a mouse to manipulate directly these visual displays; and menu bars dedicated to an array of choices. In rejecting this 'look and feel' approach, Walker J explained that the elements of such an arrangement served a purely functional purpose in the same way that the visual displays and user commands of the dashboard, steering wheel, gear shift, brakes, clutch and accelerator served as the user interface of a car. Purely functional items or arrangements were wholly beyond the realm of copyright; for example, the dials, knobs and remote control devices of a television or video-player, or the buttons and clocks of an oven or stove. Copyright protection of an article having an intrinsic utilitarian function could attach only to its separate artistic features, or afford only such limited protection as was appropriate to a compilation. Moreover the similarity in competing products of such functional elements of a user interface or their arrangement did not suggest unlawful copying, but standardization for functional reasons. If market factors played significantly determined the sequence and organization of a computer program, then those patterns would be treated as ideas beyond the ownership of any one seller; and the evidence showed that graphical user interfaces usually incorporated the basic elements of the MACINTOSH interface. He rejected as over-simplified the Whelan view that only the purpose or function of a utilitarian work counted as the work's idea. Such an approach would prevent improved means of expression, and upset the balance which copyright attempted to maintain by preventing free-riders from ripping off creative expression while not stifling others from improving or extending that expression. A single program could contain a number of non-protectable ideas, especially in the case of software which controls a wide variety of computer functions. To accept Apple's 'desktop metaphor' or 'look and feel' arguments would allow it to monopolize any desktop graphical user interface which employed the standardized features of such interfaces. Thus the following groupings of standardized features had to be regarded as 'ideas', and thus placed beyond the lone province of any particular programmer: the use of windows to display multiple images on a computer screen and facilitate interaction with the information so contained; the use of icons to represent familiar objects from the office environment and facilitate organization of information; the manipulation of icons to convey instructions and to control operation of the computer; the use of menus to store information or computer

functions in a place convenient to reach, but so as to save screen space for other images; and the opening and closing of objects as a means of retrieving, transferring or storing information. More specifically, he examined in detail and rejected, on one or more grounds, Apple's claims to almost all of the individual features of its interface on which it relied. Only a very few of Apple's claims were left for trial, such as for protection of its display of the discard folder as an icon resembling a trash can, since earlier icons depicting a trash can were sufficiently different to permit originality; for its use of 'zooming' rectangles when opening or closing a window, since this feature was uncommon, and at least arguably was not dictated by technical constraints; and for design animation indicating that a folder icon had been opened into a window by displaying its icon as dimmed, since this was original and not standard in the industry.

CONCLUSION it seems clear from the 1992 cases that the emphasis in the American courts has shifted now from a desire to ensure an adequate level of protection for developers of innovative programs, to an equal concern to ensure adequate competition in the interests of users. There is particular concern to permit the creation of incrementally improved implementations of existing program-types, and to prevent any single supplier from establishing an effective monopoly over features which are common place, essential for technical reasons, or the subject of strong user-demand. Reluctance to allow copyright protection to prevent competition is strongest (as in Altai) in connection with electronic interfaces, where 'structural' similarity is inherent in the overall function itself. In the case of user interfaces, protection is granted (as in the Lotus cases) against a precise and detailed imitation of an elaborate menu-structure, but refused (as in Apple in relation to commonplace implementations of essentially functional arrangements for machine/user interaction. The change of emphasis in the United States can be expected to have an influence on British and other European courts, especially as there may be reluctance to allow American software houses better copyright protection here than they have at home. In any event, since the principal market, at least for micro-computer software, is in the United States, these decisions will probably determine the developmental and marketing strategies of the major software houses worldwide, even if courts outside the United States adopt different approaches. Peter Stone Reader in Law, University of Essex and ,Peter Groves, Report Correspondent, Solicitor, with Hancocks, Oxford.

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Planning & ~ n t r o ! , 2 C0pydght L Roy (CCH) P26,062 (SDNY, 1987). ~4 [1988] FSR 242. ~s [1992] US App LEXIS 14305 ~6 See Corel|i v. Gray, (t913) 30 TLR 116, CA; Kelly v. Cinema Houses, [1928~35] Mac CC 362" and similarly in the United States, ?wentkr~h Century.Foxy, MCJW, 715 F2d 1327 (C9, 1983). ~7 [t992] US App LEXJS 14305 (C2). ~8 960 F2d 1465 (C9, 1992). ~9 799 FSupp 203 (DMass, 1992). 20 740 FSupp 37 (DMass, 1990). 2~ 799 FSupp t006 (NDCat, 1992).

to be so obvious that it was not entitled to copyright protection; Concrete Machinery Co v. Classic Lawn Ornaments, 843 F2d 600 (Ct, 1988); and Herbert Rosenthai Jewelry Cotp::~v.

Kaipakian, 446 F2d 738 (C9, t971). 23 See also Morrissey v. Proctor & Gamble, 379 F2d 675 (C1, t967). ~4 See Atari v. North American Philips Consumer Electronicsr 6/2 F2d 607 (C7, 1982); Landsberg v, Scrabble Crossword Game Players, 736 F2d 485 (C9, 1984).

Green : ::Paper on :Copyn'ghta n d the Challenge 6fTec~nology 8ad been e:nviSaged i~ £hapter 5 of :~be:C0mmiss[~n'S

25 799 FSupp 203 (DMass, 1992). ~ [1992] FSR t7t. 27 (1890) 25 QBD 99, z8 A similar approach to substantial similarity, in terms of quaetity and purpose, was ado t 988), which, sounded in the United States. The defendant had Copied 30 characters from the 50 pages of source-code of t:he plaintiff's;copy-protection program; for use in a program des!jgned to circumvent the cQ~yprotection. Such copying was held not to infringe copyright, for lack of substantial Similarity, even though the 30 ch~ra~ers in queston were crucia to the function ng of both programs since their functions were not simUar but opposed. However, in the special civil cause umvent eleCtronic copy, protection, z9 [1992] US App LEXIS 14305 (C2). 1992), ., C1992), 7 August ~1992 The decision of 7 August 1992 large y affirms a~er reconsideration his earlier ruling of 14 April t992, [1992] US Dist LEXIS5986,

OiTh~ Directivee~te~ds~oprogramscreated :before: : a ~ q , J ~ ~efore ihat date: :s~e~ : :~(2i:~ T~e ~er~a~ Act of 24 ~a~ t985 ~ P i dt!y aS~imi~tedco mp utei programs: to ii~e~ary G,ee

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