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                     Against User Interface Copyright

                            (October 20, 1991)

                    The League for Programming Freedom

   In June 1990, Lotus won a copyright infringement suit against
Paperback Software, a small company that implemented a spreadsheet
that obeys the same keystroke commands used in Lotus 1-2-3.  Paperback
was not accused of copying code from 1-2-3--only of supporting
compatible user commands.  Such imitation was common practice until
unexpected court decisions in recent years extended the scope of
copyright law.

   Within a week, Lotus went on to sue Borland over Quattro, a
spreadsheet whose usual command language has only a few similarities
to 1-2-3.  Lotus claims that these similarities in keystroke sequences
and/or the ability to customize the interface to emulate 1-2-3 are
enough to infringe.

   More ominously, Apple Computer has sued Microsoft and Hewlett
Packard for implementing a window system whose displays partially
resemble those of the Macintosh system.  Subsequently Xerox sued Apple
for implementing the Macintosh system, which derives some general
concepts from the earlier Xerox Star system.  These suits try to
broaden the Lotus decision and establish copyright on a large class of
user interfaces.  The Xerox lawsuit was dismissed because of a
technicality; but if it had succeeded, it would probably have created
an even broader monopoly than the Apple lawsuit may.

   And Ashton-Tate has sued Fox Software for implementing a database
program that accepts the same programming language used in dBase.  This
particular lawsuit was dropped by Borland, which bought Ashton-Tate in
1991, but the possibility of copyrighted programming languages remains.
Adobe claims that the Postscript language is copyrighted, though it has
not sued those who reject this claim.  Wolfram Research claims that the
language of Mathematica is copyrighted and has threatened to sue the
University of California.  If a programming language becomes
copyrighted, the impact on users who have spent years writing programs
in the language would be devastating.

   While this paper addresses primarily the issue of copyright on
specific user interfaces, most of the arguments apply with added force
to any broader monopoly.

What Is a User Interface?
=========================

   A user interface is what you have to learn to operate a machine; in
other words, it is the language you use to communicate with the
machine.  The user interface of a typewriter is the layout of the
keys.  The user interface of a car includes a steering wheel for
turning, pedals to speed up and slow down, a lever to signal turns,
etc.

   When the machine is a computer program, the interface includes that
of the computer--its keyboard, screen and mouse--plus those aspects
specific to the program.  These typically include the commands, menus,
programming languages, and the way data is presented on the screen.

   A copyright on a user interface means a government-imposed monopoly
on its use.  In the example of the typewriter, this would mean that
each manufacturer would be forced to arrange the keys in a different
layout.

The Purpose of Copyright
========================

   In the United States, the Constitution says that the purpose of
copyright is to "promote the progress of science and the useful arts."
Conspicuously absent is any hint of intention to enrich copyright
holders to the detriment of the users of copyrighted works.

   The Supreme Court made the reason for this absence explicit,
stating in `Fox Film vs. Doyal' that "The sole interest of the United
States and the primary object in conferring the [copyright] monopoly
lie in the general benefits derived by the public from the labors of
authors."

   In other words, since copyright is a government-imposed monopoly,
which interferes with the freedom of the public in a significant way,
it is justified only if the benefit to the public exceeds the cost to
the public.

   The spirit of individual freedom must, if anything, incline us
against monopoly.  Following either the Supreme Court or the principle
of freedom, the fundamental question is: what value does user interface
copyright offer the public--and what price would we have to pay for it?

Reason #1: More Incentive Is Not Needed
=======================================

   The developers of the Star, the Macintosh system, 1-2-3 and dBase
claim that without interface copyright there would be insufficient
incentive to develop such products.  This is disproved by their own
actions.

   Until 1986, user interface copyright was unheard of.  The computer
industry developed under a system where imitating a user interface was
both standard practice and lawful.  Under this system, today's
plaintiffs made their decisions to develop their products.  When faced
with the choice in actuality, they decided that they did, indeed, have
"enough incentive".

   Even though competitors were free to imitate these interfaces, this
did not prevent most of the original products from being successful and
producing a large return on the investment.  In fact, they were so
successful that they became de facto standards.  (The Xerox Star was a
failure due to poor marketing even though nothing similar existed.)

   Even if interface copyright would increase the existing incentive,
additional improvements in user interfaces would not necessarily
result.  Once you suck a bottle dry, more suction won't get more out
of it.  The existing incentive is so great that it may well suffice to
motivate everyone who has an idea worth developing.  Extra incentive,
at the public's expense, will only increase the price of these
developments.

Reason #2: "Look and Feel" Will Not Protect Small Companies
===========================================================

   The proponents of user interface copyright claim that it would
protect small companies from being wiped out by large competitors.
Yet look around: today's interface copyright plaintiffs are large,
established companies.  User interface copyright is crushing when the
interface is an effective standard.  However, a small company is
vulnerable when its product is little used, and its interface is
little known.  In this situation, user interface copyright won't help
the small company much.

   Imagine a small company with 10,000 customers: a large company may
believe there is a potential market of a million users, not reached by
the small company, for a similar product.  The large company will try
to use its marketing might to reach them before the small company can.

   User interface copyright won't change this outcome.  Forcing the
large company to develop an incompatible interface will have little
effect on the majority of potential customers--those who have not
learned the other interface.  They will buy from the large company
anyway.

   What's more, interface copyright will work against the small
company if the large company's product becomes an effective standard.
Then new customers will have an additional reason to prefer the large
company.  To survive, the small company will need to offer
compatibility with this standard--but, due to user interface
copyright, it will not be allowed to do so.

   Instead of relying upon monopolistic measures, small companies are
most successful when they rely on their own inherent advantages:
agility, low overhead, and willingness to take risks.

Reason #3: Diversity in Interfaces Is Not Desirable
===================================================

   The copyright system was designed to encourage diversity; its
details work toward this end.  Diversity is the primary goal when it
comes to novels, songs, and the other traditional domains of
copyright.  Readers want to read novels they have not yet read.

   But diversity is not the goal of interface design.  Users of any
kind of machinery want consistency in interfaces because this promotes
ease of use.  Thus, by standardizing symbols on automobile dashboards,
we have made it possible for any licensed driver to operate any car
without additional instruction.  Incompatibility in interfaces is a
price to be paid when worthwhile, not a benefit.

   Significantly better interfaces may be hard to think of, but it is
easy to invent interfaces which are merely different.  Interface
copyright will surely succeed in encouraging this sort of "interface
development".  The result will be gratuitous incompatibility.

Reason #4: Meaningful Competition Is Reduced
============================================

   Under the regime of interface copyright, there will be no compatible
competition for established products.  For a user to switch to a
different brand will require retraining.

   But users don't like to retrain, not even for a significant
improvement.  For example, the Dvorak keyboard layout, invented
several decades ago, enables a typist to type faster and more
accurately than is possible with the standard "QWERTY" layout.
Nonetheless, few people use it.  Even new typists don't learn Dvorak,
because they want to learn the layout used on most typewriters.

   Alternative products that require such an effort by the consumer
are not effective competition.  The monopoly on the established
interface will yield in practice a monopoly on the functionality
accessed by it.  This will cause higher prices and less technological
advancement--a windfall for lucky businesses, but bad for the public
at large.

Reason #5: Incompatibility Does Not Go Away
===========================================

   If there had been a 50-year interface copyright for the steering
wheel, it would have expired not long ago.  During the span of the
copyright, we would have got cars steered with joysticks, cars steered
with levers, and cars steered with pedals.  Each car user would have
had to choose a brand of car to learn to drive, and it would not be
easy to switch.

   The expiration of the copyright would have freed manufacturers to
switch to the best of the known interfaces.  But if Ford cars were
steered with wheels and General Motors were steered with pedals,
neither company could change interface without abandoning their old
customers.  It would take decades to converge on a single interface.

Reason #6: Users Invest More Than Developers
============================================

   The plaintiffs like to claim that user interfaces represent large
investments on their part.

   In fact, the effort spent designing the user interface of a computer
program is usually small compared to the cost of developing the
program itself.  The people who make a large investment in the user
interface are the users who train to use it.  Users have spent much
more time and money learning to use 1-2-3 than Lotus spent developing
the entire program, let alone what Lotus spent develop the program's
interface *per se*.

   Thus, if investment justifies ownership, it is the users who should
be the owners.  The users should be allowed to decide--in the
marketplace--who may use it.  According to `Infoworld' (mid January
1989), computer users in general expect user interface copyright to be
harmful.

Reason #7: Discrimination Against Software Sharing
==================================================

   User interface copyright discriminates against freely
redistributable software, such as freeware, shareware and public
domain software.

   Although it *may* be possible to license an interface for a
proprietary program, if the owner is willing, these licenses require
payment, usually per copy.  There is no way to collect this payment for
a freely redistributable program.  The result will be a growing body of
interfaces that are barred to non-proprietary software.

   Authors of these programs donate to the public the right to share
them, and sometimes also to study and change their workings.  This is
a public service, and one less common than innovation.  It does not
make sense to encourage innovation of one sort with means that bar
donation of another sort.

Reason #8: Copyright Will Be a Tool For Extortion
=================================================

   The scope of interface copyright is so vague and potentially wide
that it will be difficult for any programmer to be sure of being safe
from lawsuits.  Most programs need an interface, and there is usually
no way to design an interface except based on the ideas you have seen
used elsewhere.  Only a great genius would be likely to envision a
usable interface without a deep resemblance to current practice.  It
follows that most programming projects will risk an interface
infringement suit.

   The spirit of "Millions for defense, but not a cent for tribute" is
little honored in business today.  Customers and investors often avoid
companies that are targets of suits; an eventual victory may come years
too late to prevent great loss or even bankruptcy.  Therefore, when
offered a choice between paying royalties and being sued, most
businesses pay, even if they would probably win a suit.

   Since this tendency is well known, companies often take advantage
of it by filing or threatening suits they are unlikely to win.  As
long as any interface copyright exists, this form of extortion will
broaden its effective scope.

Reason #9: Useful Innovation Is Inhibited
=========================================

   Due to the evolutionary nature of interface development, interface
copyright will actually retard progress.

   Fully fleshed-out interfaces don't often arise as *tours de force*
from the minds of isolated masters.  They result from repeated
implementations, by different groups, each learning from the results of
previous attempts.  For example, the Macintosh interface was based on
ideas tried previously by Xerox and SRI, and before that by the
Stanford Artificial Intelligence Laboratory.  The Xerox Star also drew
on the interface ideas that came from SRI and SAIL.  1-2-3 adapted the
interface ideas of Visicalc and other spreadsheets.  dBase drew on a
program developed at the Jet Propulsion Laboratory.

   This evolutionary process resembles the creation of folk art rather
than the way symphonies, novels or films are made.  The advances that
we ought to encourage are most often small, localized changes to what
someone else has done.  If each interface has an owner, it will be
difficult to implement such ideas.  Even assuming the owner will
license the interface that is to be improved, the inconvenience and
expense would discourage all but the most determined.

   Users often appreciate small, incremental changes that make programs
easier or faster to use.  This means changes that are upwards
compatible, or affect only part of a well-known interface.  Thus, on
computer keyboards, we now have function keys, arrow keys, a delete key
and a control key, which typewriters did not have.  But the layout of
the letters is unchanged.

   However, such partial changes as this are not permitted by copyright
law.  If any significant portion of the new interface is the same as a
copyrighted interface, the new interface is illegal.

Reason #10: Interface Developers Don't Want Interface Copyright
===============================================================

   At the 1989 ACM Conference on Computer-Human Interaction, Professor
Samuelson of the Emory School of Law presented a "mock trial" with
legal arguments for and against user interface copyright, and then
asked the attendees--researchers and developers of user interfaces--to
fill out a survey of their opinion on the subject.

   The respondents overwhelmingly opposed all aspects of user interface
copyright, by as much as 4 to 1 for some aspects.  When they were asked
whether user interface copyright would harm or help the field, on a
scale from 1 (harm) to 5 (help), the average answer was 1.6.(1)

   The advocates of user interface copyright say that it would provide
better security and income for user interface designers.  However, the
survey shows that these supposed beneficiaries would prefer to be let
alone.

Do You Really Want a User Interface Copyright?
==============================================

   For a business, "locking in" customers may be profitable for a time.
But, as the vendors of proprietary operating systems have found out,
this generates resentment and eventually drives customers to try to
escape.  In the long run, this leads to failure.

   Therefore, by permitting user interface copyright, society
encourages counterproductive thinking in its businesses.  Not all
businesses can resist this temptation; let us not tempt them.

Conclusion
==========

   Monopolies on user interfaces do not serve the users and do not
"promote the progress of science and the useful arts."  User
interfaces ought to be the common property of all, as they undisputedly
were until a few years ago.

What You Can Do
===============

   * Don't do business as usual with the plaintiffs, Xerox, Lotus, and
     Apple.  Buy from their competitors instead; sell their stock;
     develop new software for other computer systems rather than
     theirs, and port existing applications away from their systems.

   * Don't work for the "look and feel" plaintiffs or accept contracts
     from them.

   * Join the League for Programming Freedom--a grass-roots
     organization of programmers and users opposing software patents
     and interface copyrights.  (The League is not opposed to
     copyright on individual programs.)  Annual dues are $42 for
     employed professionals, $10.50 for students, and $21 for others.
     We appreciate activists, but members who cannot contribute their
     time are also welcome.

     Phone us at [phone], send Internet mail to
     `[e-mail]', or write to:

          League for Programming Freedom
          1 Kendall Square #143
          P.O. Box 9171
          Cambridge, MA 02139

   * Give copies of this paper to your friends, colleagues and
     customers.

   * In the United States, write to your representatives and to these
     Congressional subcommittees:

          House Subcommittee on Intellectual Property
          2137 Rayburn Bldg
          Washington, DC 20515

          Senate Subcommittee on Patents, Trademarks and Copyrights
          United States Senate
          Washington, DC 20510

   * The European Community has adopted a directive whose most natural
     interpretation imposes copyright on all kinds of interfaces, even
     on programming languages.  Since the other countries of Europe are
     considering joining the EC, they also are in danger of being
     covered by the directive.

     Other, benign interpretations of the directive are also possible,
     but they are unlikely to be chosen by judges unless the
     governments of the individual EC countries explicitly mandate
     them.  Convincing the governments requires political pressure
     from the programmers and users of Europe.

     Lobbyists working on this issue say that most legislators are
     unfamiliar with computers and do not understand how harmful
     interface copyright could be.  Thus, what programmers need to do
     is to educate their legislators.

     One idea is to start teaching your representative the basics of
     using 1-2-3.  Once the representative sees how much work is
     involved in learning to use a command language, explain that you
     have only taught one tenth of the subject.  This should drive the
     point home.

     Political effectiveness requires organization.  Leagues for
     Programming Freedom now exist in Finland, Germany, the United
     Kingdom, the Netherlands, Norway, and Switzerland.  (In the UK,
     the Edinburgh Computing and Social Responsibility organization
     also deals with this issue.)  Ask the League in the US for the
     address of your nation's League--or for advice and assistance in
     forming one.

   ---------- Footnotes ----------

   (1)  See the May 1990 issue of the `Communications of the ACM', for
the full results.



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