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       Three Common Fallacies In the User Interface Copyright Debate

                           By Thomas M.S. Hemnes

                        Foley Hoag & Eliot, Boston

          The Computer Lawyer, Volume 7, Number 2, February 1990

   [The author gratefully acknowledges the assistance of Laurie Woog.
This article is adapted from a presentation given by the author at the
University of Southern California Law Center's Tenth Annual Computer
Law Institute in Los Angeles, May 1989.]

   Both proponents and opponents of copyright protection for the "user
interface" of computer software commonly assume the truth of the
following three propositions: l) Section 102(b) of the Copyright Act
is an exception to the general rule that copying is wrongful; 2) the
difficulty and expense of creating an interface supports its
copyrightability; and 3) the existence of multiple alternative
interfaces implies that no one of them is an unprotected "idea." Each
of these propositions is a fallacy.

*Fallacy #1: Section 102(b) of the Copyright Act is an exception to
the general rule that copying is wrongful.*

   It is easy to fall into the trap of thinking that copying is a bad
thing--a sort of tort--that copyright is designed to deter and remedy.
Nothing could be further from the truth. Copying is the rule, and not
the exception, in our competitive society. Federal Express invents
overnight delivery using a hub-and-spoke system, and is promptly
imitated by UPS, Purolator, and even the United States Postal
Service.[1] Christian Dior shows his new line of dresses in Paris, and
copies of them appear within weeks on the racks of United States
department stores.[2] Chanel expends energy and talent in creating a
new fragrance, only to have imitations sold at a fraction of the
price.[3] Stiffel no sooner designs a popular lamp, than Sears offers
its customers a duplicate.[4] Chrysler Corporation designs and builds
a phenomenally successful line of "minivans," only to be imitated by
Ford, General Motors and the Japanese automakers.  Short-order
restaurants endeavor to make their french fries as much like
McDonalds' as humanly possible. The copyists even advertise that their
products are as close as possible to the originals.[5]

   All of these forms of copying--and many more besides--are protected
by federal and state law. The reason is that copying serves two
fundamental purposes.  First, it facilitates price competition. If
others were not permitted to offer the same product or service,
competition as to price would be confused and blunted by distinctions
as to the goods or services offered. Where the competitor offers
exactly the same thing, prices are driven down, and "efficiency" in
the economic sense is maximized.

   Second, copying transmits society's collective store of knowledge.
We learn by imitation. Art students copy the works of the great
masters. Auto manufacturers buy their competitors' products and
disassemble them down to the last nut and bolt to learn improved
techniques of design and construction Young lawyers learn to draft
agreements by "marking up"--that is, copying language out of-- other
agreements.

   Without copying, it would be necessary for everyone to "reinvent the
wheel" before marketing a product, writing a play, performing an
experiment, producing a movie, preparing a contract or undertaking any
other creative activity.  This would be inefficient and undesirable. In
computer parlance, working from scratch creates "bugs."[6] That is why
lawyers work from forms and use "boilerplate": otherwise, they would be
sure to repeat the mistakes of their forebears. It would be the
unsuccessful manufacturer of a screwdriver that did not start with the
assumption that his screwdrivers should look and feel just about like
ones already on the market. If they did not, customers might not know
how to use them, and the screwdrivers might not fit the screws they
are supposed to be used with.

   For these reasons, the law has jealously guarded the right to copy.
As Learned Hand put it, a competitor may copy any product "slavishly
down to the minutest detail."[7] In Justice Holmes' words, a
competitor "has a *right*...to get whatever share they can in the
popularity of [another company's] product by advertising that they are
trying to make the same article, and think that they succeed."[8] One
of the most forceful statements of the right to copy appears in the
very recent Supreme Court decision in `Bonito Boats. Inc. v. Thunder
Craft Boats, Inc.': "imitation and refinement through imitation are
both necessary to invention itself and the very lifeblood of a
competitive economy."[9]

   At issue in `Bonito Boats' was a Florida statute that made it
unlawful to duplicate products using the "plug-molding" process. That
process represents the most "slavish" copying imaginable. The
competitor uses the originator's product to make a mold. and then uses
the mold to make duplicates of the originator s product. In the
Hand/Holmes tradition, the Court found that the Florida attempt to
outlaw plug-molding "[erodes] the general rule of free
competition."[10] The Court based its decision in part on the fact
that (at least as to patentable subject matter) there is "a federal
*right* to `copy and to use.'"[11] and that "`[t]hat which is
published may be freely copied as a matter of federal *right*.'"[12]

   `Bonito Boats' reflects an historical and deep-seated association
between patents, copyrights and monopolies.[13] This association has
been most pronounced in the field of patents. The beginning of modern
patent law is usually traced to the "Statute of Monopolies," enacted
in 1623.  Far from being a grant of patent-like rights, the Statute of
Monopolies was a Parliamentary effort to curb exclusive "patents"
granted by the Crown.  Similarly, the first true copyright statute,
the Statute of Anne, enacted in 1710, was intended in part to limit
the monopolistic rights of publishers.[14] Prior to that statute, the
common law had recognized few rights in authors, and rights in
published works were controlled by the unpopular "Stationers'
Company's monopoly."[15]

   The American colonists shared this hostility; indeed, the colonists
had rebelled in part because of excessive monopolies granted by the
Crown.  There was a strong sentiment among the founding fathers that
any power in the federal government to grant monopolies,[16] and in
particular monopolies in the nature of patents and copyrights, would be
intolerable.[17] The most notable proponent of this view was Thomas
Jefferson, who considered exclusive statutory monopolies such as
patents to be an "embarrassment."[18] Jefferson was himself, of
course, a redoubtable inventor and thus might judge which legal system
would best foster innovation.

   Jefferson eventually came around to the view that "[m]onopolies may
be allowed to persons for their own productions & their own inventions
in the arts," but only for limited times.[19] Thence the current
constitutional provision, which empowers Congress "[T]o promote the
Progress of Science and the Useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries."[20] It is noteworthy that, from both a
constitutional and an historical standpoint, the concern about
exclusive monopolization applies to patents and copyrights equally.
Particularly in a climate in which copyright has been extended to such
utilitarian creations as computer software, the Constitution therefore
demands that the same policy considerations inform both copyright and
patent adjudication. Otherwise, all of the limitations that the courts
have strived to impose on patents to guard against unwarranted or
exclusive monopolization might be lost through the medium of copyright
protection.

   The Patent Act implements the constitutional scheme--and protects
the right to copy--in two ways. First, there is a high standard for
patentability. If an invention is neither new nor nonobvious, it does
not merit embarrassing Jefferson with yet another monopoly.[21]
Second, the patent lasts only 17 years. At the end of that time, the
invention (which must be fully disclosed in the patent itself) becomes
available for all to copy and use.[22] The policy favoring copying is
so strong that state statutes that purport to inhibit copying of an
invention that does not meet the standard of patentability, or that
purport to extend protection beyond the 17-year period, are
preempted.[23]

   Copyright has gone about the constitutional scheme in a different
manner.  Rather than pinning protection[24] of the right to copy on a
high threshold for protection or on a short duration,[25] the courts
and Congress have severely limited the sorts of things that might be
copyrighted at all. The current statute exempts from its protection
"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." Section
102(b) was intended to codify the existing law regarding what might
and might not be protected by copyright.[26] Thus, its compendious
list must be understood and interpreted in light of historical and
Constitutional limitations on excessive monopolies, which have produced
the more general procompetitive federal policy described above. The
list also must be understood as incorporating the myriad of specific
exceptions to copyright protection that have arisen under that policy.
It excludes from protection the design of wearing apparel;[27]
business forms;[28] typefonts;[29] the titles of books;[30] the
results of architectural designs;[31] the formats and designs used in
maps such as boundary symbols and keys,[32] any object in which the
copyrightable "expression" is not capable of existing independently of
its utilitarian function,[33] and all the other items that courts have
held are not subject to copyright protection.

   In short, copyright is but one small part of a much larger body of
federal and state law that serves a variety of important policies. One
policy is the provision of incentive and reward for invention.  Others
are the avoidance of stifling monopolies and the preservation of
competition. The right to copy is a central feature of this body of
law. Thus, it is fair to say that section 102(b) of the Copyright Act
is the rule, to which copyright protection is a limited exception.

*Fallacy #2: The difficulty and expense of creating an interface
supports its copyrightability.*

   The suggestion that a computer program's "user interface" should
not be protected frequently runs up against the following line of
reasoning: "The plaintiff expended substantial time and effort in
creating an interface that is one of the main reasons for the success
of the plaintiff's product.  The defendant has imitated this interface
at a fraction of the plaintiff's effort. If we do not protect the
plaintiff's interface, there will be no incentive to create new and
better interfaces, and society will consequently suffer. Therefore,
the plaintiff's interface must be protected against imitation or
unauthorized use by the defendant.  The greater the protection, the
greater the potential reward, and therefore the greater the
innovation."

   This line of reasoning rests on three fallacies, one philosophical,
one legal, and one factual. The philosophical error is that the
argument implicitly assumes that copyright is a matter of natural
right: if you create something by your own labors, it is yours, and
others may not use it without your permission.[34] This argument has a
powerful emotional appeal that no plaintiff's lawyer has failed to
exploit. It is, nevertheless, erroneous. As the Supreme Court observed
in `Graham v. John Deere', the "natural right" theory of intellectual
property rights was rejected by Jefferson in favor of a "social and
economic rationale"[35] under which protection is granted by society
as an inducement to new creation.  Thus, the protection is a means to
an end, not an end in itself.[36] When protection would interfere with
the creation of new works, it defeats the purpose and should be denied.

   The fallacy of law is that the difficulty or expense of creating a
thing makes it a proper subject of copyright or patent protection.
There is no such legal principle. The most potent counterexample is
discovery of a law of nature. It probably can be fairly said that the
effort, genius, and creativity required to discover new laws of nature
is unrivaled in any other field of human endeavor. Einstein's E=mc2 is
the most famous example, but others abound. In many cases, millions of
dollars, years of effort, and unparalleled individual application are
required to make the most modest advance in human scientific knowledge.
Nevertheless, the law accords no protection whatsoever against the
exploitation of that discovery by others.[37] The reason is that such
discoveries are simply too important to the common good to allow their
monopolization by any one owner.[38]

   The fallacy of fact is twofold. It is, in the first place, an error
to assume that financial incentives are necessary or even sufficienty
to motivate creative effort. Scientists devote their lives to the
discovery of new laws of nature, without the slightest hope that they
will have exclusive rights in the discoveries they publish.[39] What
motivates them?  Curiosity, a desire to be remembered as the
discoverer of something valuable and important, and professional
recognition, are powerful motivators for many.

   On the other hand, works that are motivated solely by a need to
make money are frequently of inferior quality and value to the society
at large.  "Potboilers" are not as a rule the best examples of great
literature.  An occasional excellent book is written solely for the
purpose of making money (U.S. Grant's `Memoirs' comes to mind), but it
is probably outnumbered 100 to 1 by good books that were written in
spite of the author's sure knowledge that they would not be
best-sellers.

   The second error of fact is the assumption that legal protection is
necessary if one is to profit from an intellectual creation.
Innovations in business methods such as the Federal Express method of
express delivery, and designs such as Parisian fashions and the
Chrysler minivans, are neither patentable nor copyrightable.
Nevertheless, they can be enormously profitable.

   It thus appears that business innovations and new non-patentable
designs are in fact regularly created, from which the innovators do
get rich, even though there is no legal protection for them
whatsoever. One important explanation for this is lead time. The first
person to bring a new product to the market will have the jump on
competitors; this jump can be extended by brand identification and
product improvement, while the competitors are playing catch- up.[40]

   This is not to say that legal protection is never required for
financial reward.  One of the key determinants is whether the creator
provides any benefit or value other than the intellectual creation
itself.  In the case of an original Parisian dress, the designer's
trademark has a high value.  In the case of the Chrysler minivan, the
particular implementation of the idea seems to be as significant as
the basic idea itself. In the case of Federal Express, the clever idea
for overnight delivery must be matched by near-perfect execution for
the service to be a success.  On the other hand, once a book is
published, the author has little else to offer a potential buyer; for
this reason, unrestricted copying of a book effectively eliminates the
author's possibility of meaningful recovery. The lead time an author
of a book would have over copyists would probably be insufficient to
return any substantial recovery to the author.[41] Similarly, an
unlimited right to copy the programming code of an "off the shelf"
computer program would probably deprive its owner of any meaningful
recovery.  But the title of a book (however clever) is not protected by
copyright,[42] in part for fear of creating an overly broad impediment
to the creation of future books, and in part because the title alone
will not sell the book: it has to read well also, just as the computer
program must work well if it is to sell, even if it borrows the "user
interface" of another program.

   For present purposes, a vital question, therefore, is whether the
creators of user interfaces are more like Chrysler with its minivan,
or more like an author with his or her book, in their need for legal
protection in order to earn a living. The evidence seems strong that
they fall more into the Chrysler category. Like the overall concept of
a minivan, the interface of a computer program is but one determinant
of commercial success. The program must have features that consumers
want, it must be relatively free of bugs, and it must be backed up
with a credible and effective support staff, to name but a few other
determinants of the commercial success of a computer program. Unlike
the copyist of a book, the copyist of a user interface must add new
value to the underlying program in order to compete effectively with
the creator of the interface.

   The conclusion seems inevitable that the creators of computer
program interfaces will be--and indeed have been--able to profit
handsomely, without any legal protection for their programs' "look and
feel" whatsoever, just as Chrysler has been able to profit handsomely
without any protection against other auto manufacturers marketing
products that "look and feel" much like the Chrysler minivans.

*Fallacy #3: The existence of multiple alternative interfaces implies
that no one of them is an unprotected "idea."*

   The Copyright Act's list of the things that may not be protected by
copyright is commonly referred to as "the idea/expression dichotomy."
After a lifetime of unparalleled contribution to the law of
intellectual property, Learned Hand declared, "[N]o principle can be
stated as to when an imitator has gone beyond the 'idea,' and has
borrowed its 'expression.'"[43] Similarly, in his `Unhurried View of
Copyright', (which should be required reading for any court addressing
a question of copyright protection) Benjamin Kaplan referred to the
distinction between "idea" and "expression" as "abracadabra." However,
accepting this supposed "dichotomy," courts and commentators labor
endlessly to define what constitutes the "idea," and what the
"expression," of a screen display, or of another element of a program's
"user interface."

   One of the most pernicious "tests" currently in vogue for
distinguishing ideas and expressions is the "Doctrine of Merger."
Under this supposed "doctrine," one asks whether there is only one way
of doing whatever it is that the plaintiff has done. If so, then the
"idea" and its "expression" are said to have "merged," and copyright
protection is denied. If not, the plaintiff wins.[44] The plaintiff
almost always wins.[45] A slightly less overbroad variant on the theme
is to say that protection will be denied if there are only a few ways
of "expressing" the "idea."[46]

   The problem with this bogus "doctrine" is that it begs the
question.  Is something that can be expressed in only one way
necessarily an "idea" for purposes of copyright protection? Sometimes
yes; sometimes no. "Its spring and the world is mudluscious/the
goatfooted balloon man whistles far and wee." Could anyone honestly
say that he or she had found another way to express what ee cummings
expressed in this poetry?  Does the fact that the idea can be
expressed in only one way imply that cummings' poem may not be
copyrighted? Of course not. On the other hand, each expression of
something that can be expressed in an unlimited number of ways is not
necessarily "expression" for purposes of copyright protection. There
are undoubtedly a vast number of ways of designing a dress,[47] or a
building,[48] or of structuring the input formats of a computer
program,[49] or of preparing an accounting form,[50] or of writing a
conditional sales agreement;[51] yet no one of them is entitled to
copyright protection. The "Doctrine of Merger" is hopelessly
inadequate to explain or elucidate these results.

   The fact is that for most copyrighted works, it is impossible to
speak intelligently about their "ideas" as distinguished from their
"expressions."[52] Not only is it impossible to make this distinction
for many works; it is not necessary to do so.  The Copyright Act does
not state the "dichotomy"; it is entirely judge-made.  While it may be
a useful distinction for some works, different intellectual tools are
likely to be required for most other works if courts are to succeed in
implementing the underlying copyright and competitive policies.

   A different vocabulary helps: focusing on the question whether
elements of an interface constitute methods of operation" or
"function" is probably more illuminating than inquiring whether they
constitute "ideas." Even more importantly, though, the courts should
more directly confront the underlying policy questions. Some
suggestions for improved copyright analysis are put forward below.

*The Debate Without the Fallacies*

   For the reasons described above, the argument that improvements and
creativity require financial incentives, the emotional "natural rights"
argument, and the "idea/expression dichotomy," are not useful tools in
the debate over copyright protection for the "user interface" of
computer programs. But if these are not useful tools, what are?

   One must begin with thoughtful consideration of the policies of the
Copyright Act in particular, and the federal law of competition,
monopolization and copying in general.  There is nothing all that
mysterious or difficult about these underlying policies or their
application. One important policy, encountered in contexts as diverse
as patent cases, trademark cases. and unfair competition cases, is the
preservation of competition. Another is the encouragement of
innovation. A third is reward to authors for their labors.

   If there is a general rule that can be distilled from the patchwork
of exceptions, judge-made rules. and constitutional policies
incorporated into the Patent and Copyright Acts, it is this: legal
protection should be granted only when it is necessary to provide
financial reward to the innovator, and when it will not substantially
diminish competition, innovation or other important goals.  Thus, an
author can make money from a published book only if there is
protection against unauthorized copying.  The same is true of
programming code. On the other hand, legal protection has been denied
whenever the innovator can obtain a substantial financial reward
without it (e.g., innovative business methods) or when there is a
substantial risk that protection would materially diminish competition
and innovation (as would protection for laws of nature), interfere
with the standard means of creating new products (as would protection
for scenes a faire and legal forms),[53] or conflict with other social
goals such as the readability of maps (as would protection for
standard map symbols, formats and designs).[54]

   Applying these general principles to the user interface example,
one must first inquire whether the persons who create user interfaces
will be prevented from obtaining a recovery for their labors without
legal protection. On this question, the balance tips against legal
protection in most cases. The reason is that the interface is
invariably sold as part of a computer program, and few consumers buy a
program solely for its interface. The program must also operate well,
and it must be backed up with a reputable company that can provide
updates and other services. For these reasons, the company that
creates a program with a new interface can profit from its investment
even if the interface is unprotected.[55] The company s profits might
not be as large as they would be if the interface were protected--but
that is a good thing, not a bad thing: monopoly profits are disfavored
in a competitive economy.

   The second inquiry is the effect of copyright protection on
competition. It seems virtually certain that copyright protection for
interfaces favors monopolization by the most dominant software
companies The simple reason is that interfaces take time to learn. and
once one learns a particular interface, one is reluctant to invest the
additional effort required to learn another one. As a result,
protection for the interface of a successful program creates a
powerful barrier to entry. By contrast, the success of one novel does
not threaten competition among novelists because readers are not
reluctant to read novels having new characters and plots.

   The third policy consideration is the effect of protection on
innovation.  It is frequently argued that broad protection for
software interfaces is valuable because it will compel programmers to
invent completely new interfaces that will be better than the existing
ones. Without the broad protection the industry will stagnate at a
lower level than it might otherwise have attained.

   The famous example of the "QWERTY" typewriter keyboard debunks this
reasoning. As is widely known, the standard QWERTY keyboard was
devised in the late 19th century as a means of preventing typewriter
keys from jamming.[56] As a typewriter/human interface, the QWERTY
keyboard is far from ideal. It loads most of the effort onto the left
hand, its most frequently used keys are not in the center row, and it
compels the typist to make awkward jumps and reaches between common
letter combinations.  QWERTY was never protected by patent, copyright
or otherwise.  It nevertheless became the standard, largely as the
result of a nationwide string of typing schools established by the
Remington typewriter company, and the commercial success of its
typewriters.

   Despite QWERTY's wide acceptance, radically different and much more
efficient keyboards have been devised and patented--most notably the
"Dvorak simplified keyboard."[57] This proves two points. First. the
lack of any legal protection for a standard "user interface" such as
QWERTY does not prevent innovators from creating new and improved
keyboard designs Second, the existence of legal protection for an
interface has little to do with the ability of its creator to earn a
reward. QWERTY was never protected, but Remington and others made
plenty of money selling typewriters. On the other hand, none of the
patented or unpatented keyboard designs that followed QWERTY has
achieved any commercial success.[58]

   The "broad protection favors innovation" line of reasoning also
makes a false assumption about the nature of development in the
software industry.  It assumes that important innovations in software
interfaces are revolutionary and not evolutionary in nature. This is
wrong.  It is impossible to point to a single element of any current
mass-market program's interface that did not have a progenitor in one
or more prior programs.  Software interfaces are means of
communication between programs and their users. Like other languages,
they evolve over time. But each language depends on an accumulation of
conventions about meaning and syntax that were established by prior
languages.  Extending copyright protection to any particular language
would prevent others from building on its conventions of meaning and
syntax and retard its evolutionary development.[59]

   For all these reasons, courts be should reluctant to extend
copyright protection to any part of a computer program that potential
buyers would prefer not to relearn before buying a competitive
product.[60] Many user interface elements--command terms, syntax,
organization of command terms in a menu, to name a few--fall into this
category. By contrast, many other parts of computer programs--most
notably the programming code itself--can be protected without serious
harm to competition and innovation in the industry.

   To draw the line between what will foster the creation of improved
competitive programs and what will not, it will be necessary for
courts to distinguish the needs of computer programmers and users from
the needs of the authors and readers of more traditional literary
works. It has been all too easy for courts to assume that the same
copyright principles will protect the rights of authors and
programmers alike. They will not.  Software is radically different
from books, poems and plays. The "interface" of a book is a natural
language; the "interface" of software is an artificial language. A
program is written in a different language from the language by which
it "interfaces" with the user; a book is not. The purpose of a book is
to be read and quoted; the purpose of software is to perform
functions. A court that fails to accommodate these profound
differences is bound to render decisions that are unhelpful at best,
and disastrous at worst, for this important industry.

   Knowledge of the industry must be combined with a thoughtful and
candid balancing of the underlying policies. In balancing the
policies, courts need not fear treading on ground already occupied by
Congress. The Copyright Act's section 102(b), its definition of
"pictorial, graphic and sculptural" works, and traditional exclusions
such as that of `Baker v.  Selden'[61] and scenes a faire, give courts
extraordinary latitude to decide what should and should not be
copyrightable, particularly in the case of works as utilitarian as
computer programs. Courts should seize this opportunity to fashion
principles that will advance the science and art of computer
programming. Only in this way can the constitutional purpose of
copyright protection be achieved.

                                   NOTES

  1. Such copying is entirely lawful. See `Holding Security checking
     Co.  v.  Lorraine Co.', 160 F. 467 (2d Cir. 1908) ("the law is
     settled that a method of doing business can be rejected as not
     being within the statutory classes" protected by patent law).

  2. This too is lawful. See `Russell v.  Trimfit, Inc.', 425 F. Supp.
     91 (E.D. Pa.  1977). See also `Societe Comptoir de L'Industrie
     Cotonniere Etablissements Boussac v Alexander's Department
     Stores, Inc.', 299 F.2d 33, 36 (2d Cir. 1962) ("`pirating' of the
     design is lawful and proper").

  3. `Smith v. Chanel, Inc.', 402 F.2d 562, 563 (9th Cir. 1968).

  4. `Sears, Roebuck & Co. v. Stiffel Co.', 376 U.S. 225, 231(1964),
     reh'g denied, 376 U.S.  973 (1964) (holding Sears' manufacture
     and sale of lamps almost indentical to Stiffel's not actionable).

  5. See e.g., `Saxlehner v. Wagner', 216 U.S.  375, 380 (1910)
     (Holmes, J.); `Societe Comptoir', note 2 supra, at 35; `Smith v.
     Chanel', note 3 supra, at 563.

  6. It has been suggested that the OS/2 operating system contains many
     programming shortfalls precisely because it was created using
     "clean room" techniques that prevented its designers from
     avoiding their predecessors' mistakes.

  7. `Crescent Tool Co. v. Kilborn & Bishop Co.', 247 F. 299, 301 (2nd
     Cir. 1917). Of course, the competitor may not pass off its good
     as those of another. Id.

  8. `Saxlehner v. Wagner', 216 U.S. 375, 380 (1910) (emphasis added).
     ("[T]he plaintiff has no patent for the [`bitter'] water, and the
     defendants have a right to reproduce it as nearly as they can").
     Id. at 380.

  9. 109 S.Ct. 971, 975 (1989).

 10. Id. at 983.

 11. Id. at 985 (referring to material covered by expired patents and
     by potentially patentable ideas that have been "fully exposed to
     the public") (emphasis added).

 12. Id. at 984, quoting `Bailey v. Logan Square Typographers, Inc.',
     441 F.2d 47, 51 (7th Cir. 1971) (emphasis added). The Court
     quoted similar language from `Inwood Labs., Inc. v. Ives Labs.',
     Inc., 456 U.S. 844, 863 (1982) ("`[r]eproduction of a functional
     attribute is legitimate competitive activity,'" when an
     unpatented item is in general circulation). `Bonito Boats' at 984.

 13. Many patent attorneys chafe at the suggestion that a patent is a
     form of monopoly, preferring to think of it as a form of property
     instead. This effort to clothe the wolf in lamb's clothing as
     `Bonito Boats' shows, has not spread to the Supreme Court.

 14. `Nutshell', Intellectual Property 279.

 15. B. Kaplan, `An Unhurried View of Copyright' 3 (1967) (hereinafter,
     `Unhurried View').

 16. James Madison felt government was instituted to protect the "use
     of their physical and mental faculties" A just government would
     "not permit citizens to suffer under arbitrary restrictions,
     exceptions, or monopolies." Madison on "Property," `National
     Gazette', Mar. 29, 1792, cited in `Adrienne Koch, Jefferson and
     Madison, The Great Collaborators' 109 (Oxford University Press,
     N.Y. 1950).  Jefferson felt similarly, writing in 1787 to Madison
     from Paris decrying the omission of certain concepts from the
     plans for a new government: "I will tell you now what I do not
     like. First, the omission of a Bill of Rights, providing ...for
     freedom of religion, freedom of the press,...restriction of
     monopolies.... '" Koch and William Peden, eds., `The Life and
     Selected Writings of Thomas Jefferson' 437 (Random House, N.Y.
     1972).

 17. Jefferson's contribution to the Constitutional provision governing
     patents and copyrights, Article 1, sec. 8, cl. 8, was reviewed by
     the Supreme Court in `Graham v. John Deere Co.', 383 U.S. 1, 7-10
     (1966).

 18. Id. at 8-9.

 19. Id., at 8, quoting Jefferson's August 1789 letter to Madison, as
     cited in `V Writings of Thomas Jefferson' 113 (Ford, ed. 1895).

 20. U.S. Const., art. I, sec. 8, cl. 8. Some delegates to the
     Constitutional Convention suggested an even greater governmental
     role in fostering the arts and sciences.  Pinckney suggested
     Congress should have the power to establish public institutions,
     rewards, and immunities for the promotion of agriculture,
     commerce, trades and manufacture." `3 Notes of James Madison of
     the Federal Convention', August 18, 1789 at 325.

 21. `Graham v. John Deere' at 9.

 22. `Bonito Boats', supra, at 978.

 23. Id. at 978, discussing `Sears, Roebuck & Co. v. Stiffel Co.', 376
     U.S.  225 (1964); `Compco Corp. v. Day-Brite Lighting Inc.', 376
     U.S.  234 (1964).

 24. It is usually said that copyright does not require newness
     (novelty), and that the copyright standard of originality is
     minimal. See `Sheldon v.  Metro Goldwyn Pictures Corp.', 81 F.2d
     49 (2d Cir.) cert.  denied, 298 U.S.  669 (1936) (L. Hand, J.).
     However, protection has been denied in certain circumstances that
     look suspiciously like lack of novelty. See, e.g., `Donald v.
     Zack Meyer's T.V. Sales and Service', 426 F.2d 1027 (5th Cir.
     1979), cert.  denied, 400 U.S. 992 (1971).

 25. The duration of copyright has always been lengthy; the current
     statute's lifetime of the author plus 50 years (or 75 years for a
     work made for hire) is essentially forever in the case of a
     computer program

 26. `H.R.Rep. (Judiciary Committee) on the Copyright Act of 1976', No.
     1476, 94th Cong., 2d Sess. 57, reprinted in `1976 U.S. Code Cong.
     and Admin.  News' 5670.

 27. See note 2 supra.

 28. `Baker v. Selden', 101 U.S. 99 (1880).

 29. `Eltra Corp. v. Ringer', 579 F.2d 294. 298 (4th Cir 1978); see
     also `H.R.Rep. 1476', note 26 supra, at 55 (a typeface is not a
     copyrightable "pictorial, graphic or sculptural work" within the
     meaning of the bill).

 30. `Becker v. Loew's, Inc.', 133 F.2d 889, 891 (7th Cir 1943).

 31. `DaSilva Construction Corp. v. Herrald', 213 F Supp. 184, 195-196
     (M.D.Fla. 1962).

 32. `United States v. Hamilton', 583 F.2d 448 (9th Cir. 1978); see
     also `Andrews v. Guenther', 60 F.2d (S.D.N.Y. 1932).

 33. 17 U.S.C. sec. 101 (definition of "pictorial, graphic and
     sculptural" works).

 34. The Berne Convention tends to assume that a copyright is the
     "natural right" of an author. One might argue whether U.S.'s
     decision to comport with the requirements of Berne undermines the
     historical and constitutional rejection of the "natural rights"
     theory of copyright.

 35. `Graham v. John Deere', supra note 17, 383 U.S. at 8-9.

 36. Jefferson felt that rights in intellectual property should be
     limited to their usefulness to society. One did not "lose" by
     sharing an idea.  "He who receives an idea from me, receives
     instruction himself without lessening mine, as he who lights his
     taper at mine. receives light without darkening mine." The free
     movement of ideas was essential to man's development; therefore,
     "[i]nventions...cannot, in nature. be a subject of property.
     Society may give an exclusive right to the profits arising from
     them, as an encouragement to men to pursue ideas which may
     produce utility," but within limits. Letter of Thomas Jefferson
     to Isaac McPherson, cited in Federico, "Operation, of the Patent
     Act of 1790," `18 J. of the Pat. Off. Soc'y' 237, 241-242 (April
     1936).

 37. `Diamond v. Diehr', 450 U.S. 175, 185-186 (1981) A new discovery
     of, e.g., a law of nature, can in principle be protected as a
     trade secret, but in fact few scientific discoveries are ever
     protected in this manner

 38. `Funk Bros. Seed Co. v. Kalo Inoculant Co.', 333 U.S. 127, 130
     (1948) ("He who discovers a hitherto unknown phenomenon of nature
     has no claim to a monopoly of it which the law recognizes.  If
     there is to be invention from such a discovery, it must come from
     the application of the law of nature to a new and useful end.").

 39. As noted above, a scientist could in principle protect a law of
     nature as a secret. Yet how many instances have there been of
     scientists choosing this route, rather than publishing and
     receiving credit for their discoveries?

 40. Stephen Breyer, "The Uneasy Case For Copyright: A Study of
     Copyright in Books, Photocopies, and Computer Programs," `84
     Harv. L. Rev.' 281, 299-301 (Dec. 1970).

 41. See Breyer, note 40 supra, at 302 (referring to books with heavy
     fixed costs and lengthy pre-recoupment periods).

 42. `Becker v. Loew's, Inc.', 133 F.2d 889, 891 (7th Cir. I 943)

 43. `Peter Pan Fabrics, Inc. v. Martin Weiner Corp.', 274 F.2d 487,
     489 (2d Cir.  1960).

 44. This so-called doctrine is usually traced to the "jeweled bee pin"
     case, `Herbert Rosenthal v. Kalpakian', 446 F.2d 738 (9th Cir.
     1971).  In that rather poorly- reasoned decision, the court
     denied protection for a pin that was in the shape of a bee, on
     the ground that there was only one way to make such a pin. The
     premise of this argument--that one can make a jeweled bee pin in
     only one way--seems so manifestly incorrect that one must
     question the validity of the court's holding.

 45. See `Whelan Associates v. Jaslow Dental Laboratory', 797 F.2d
     1222, 1236 n.28 (3rd Cir. 1986), cert. denied, 479 U.S. 1031
     (1087). The merger doctrine's resultant overbroad protection has
     been noted and questioned.  See, e.g., Comment, "Does Form Follow
     Function? The Idea/Expression Dichotomy in Copyright Protection
     of Computer Software," `35 U.C.L.A. L.  Rev' 723, 741 (April
     1988) (noting that courts frequently find that alternative
     methods of expression exist "regardless of their impractibility.")

 46. `Morrissey v. Procter & Gamble Co.', 379 F.2d 675, 678 (1st Cir.
     1967).

 47. `Jack Adelman, Inc. v. Sonners and Gordon, Inc.', 112 F. Supp.
     187, 190 (S.D.N.Y. 1934); `Russel v. Trimfit, Inc.', 478 F. Supp.
     91 (E.D. Pa. 1977)

 48. `DaSilva Construction Corp.', note 31 supra.

 49. See `Synercom Technology, Inc. v.  University Computing Co.', 462
     F.  Supp.  1003 (N.D. Tex. 1978).

 50. `Baker v. Selden', 101 U.S. 99 (1880).

 51. `Donald v. Zack Meyer's T.V. Sales and Service', note 24 supra.

 52. Kaplan found further support for this conclusion in modem music
     and visual art. It is senseless to attempt to distinguish
     intelligently between the "idea" and expression" of a work of
     modern music that is lacking in melody, or of an abstract
     painting that is lacking in representation.  Kaplan, `An
     Unhurried View', 52-53.

 53. `Donald v. Zack Meyer's T.V. Sales and Service' notes 24 and 51,
     supra.

 54. `United States v. Hamilton', 583 F.2d 448 (9th Cir. I 978).

 55. To the extent that there are some independent persons or companies
     engaged solely in the creation of interface elements, they can
     protect their recovery through contract with the companies that
     market the combined program interface.

 56. For an excellent discussion of the history of the QWERTY
     keyboard, see C.  Blanchard, `The Early Word Processors'
     (Research Rpt. 3, Educators: Project IV, Lake George, NY 1981).
     See, generally, A.  Dvorak, N. Merrick, W. Dealey and G.  Ford,
     `Typewriting Behavior' (American Book Co. 1936).

 57. See Dvorak, August and Dealey, "Simplified Keyboard Arrangment,"
     U.S.  Pat. Off. Ser. No 612738 (1932). The world's record for
     typing speed (about 240 words per minute) was set on a Dvorak
     keyboard.

 58. Dvorak first patented his keyboard, and then dedicated it to the
     public domain in hopes of encouraging its dissemination. Other
     inventors have retained their patent claims. See, e.g.,
     references in Dvorak patent, cited in note 57 supra.

 59. Drawing on the seminal work of Professors Robert Merges and
     Richard Nelson, one can describe computer software in general,
     and interfaces in particular, as a "cumulative" technology like
     aircraft, as opposed to an iterative one like pharmaceuticals.
     Each improvement in a cumulative technology necessarily
     accumulates and builds upon prior improvements. For such
     technologies, Merges and Nelson have found strong evidence that
     intellectual property protection can retard rather than enhance
     industry development. See Merges and Nelson, "On the Complex
     Economics of Patent Scope" (manuscript, to be published in the
     `Columbia Law Review' in Spring 1990).

 60. This consideration may explain the Digital Communications court's
     otherwise inexplicable distinction between the rule that one
     chooses an item from a menu by depressing the keys that
     correspond to letters in the command term that are capitalized on
     the screen, and the choice of which letters to capitalize. The
     rule has to be learned and remembered, whereas the capitalized
     letters can be read off of the screen. `Digital Communications
     Assoc., Inc. v. Softklone Distributing Corp.', 659 F.  Supp.
     449, 459 (N.D. Ga. I 987).

 61. 101 U.S. 99 (1880).