ftp.ee.pdx.edu/2014.02.ftp.ee.pdx.edu.tar/ftp.ee.pdx.edu/pub/lpf/lotus.Z/lotus

Text File | 1992-11-03 | 33KB | 650 lines

This column was published in a copyrighted issue of the
Communications of the ACM (vol. 33, issue 11, Nov. 1990).
Noncommercial copying of the column is permitted.


Legally Speaking:  How to Interpret the Lotus Decision (And
                        How Not To)

                    by Pamela Samuelson

     On June 28, 1990, a federal court judge in Boston, made
public his decision in favor of Lotus Development Corp. in
its software copyright lawsuit against Paperback Software.
People in the software industry had been waiting for this
decision since the lawsuit was first filed in January 1987,
sure that it would be a landmark case and would resolve many
vexing questions about copyright protection for user
interfaces.

     The trade press has been full of varying
interpretations of Judge Keeton's opinion in the Lotus case.
Some have said that the decision is a narrow one, making
illegal only the direct copying of another firm's
interface.[1]  Some have seen it as a much broader ruling,
one that will have a chilling effect on development of
competitive software products.[2]  Some have asserted that
the case draws a reasonable line, and will have a positive
effect overall.[3]  Others have argued that the ruling will
be harmful because it ignores the interests of users of
software, and will make standardization of user interfaces
impossible to achieve.[4]  Still others perceive the opinion
as only setting the stage for a new confrontation over the
issues in the appellate courts.[5]  Lotus has given some
indication of how broadly it interprets the Paperback
decision by filing a new round of user interface copyright
lawsuits against two others of its spreadsheet competitors.

     Rather than just adding one more interpretation to the
bin of already expressed views on the meaning of the Lotus
decision, this column will give the reader a glimpse of the
nature of the legal process and of judicial opinions so he
or she can see why people can interpret the Lotus opinion
differently.  One reason it is hard to know what the Lotus
decision means is that the legal process isn't over yet, and
the meaning of the case will depend in part on the outcome
of this further process.  A second is that Judge Keeton says
some things that seem to suggest his ruling is a narrow one,
but he also says some things that could be interpreted much
more broadly.  A third is that from even unambiguous things
a judge says in an opinion different people will draw
reasonable but nonetheless differing inferences about what
the judge would do in similar but somewhat different cases.
For these reasons, it is impossible to know with any
certainty what the law concerning copyright protection for
user interfaces is in the aftermath of the Lotus decision.

IT'S NOT OVER TILL IT'S OVER

     Let's start with one thing of which we can be certain.
Paperback for now has been held liable for copyright
infringement because it copied the entire menu structure of
the Lotus 1-2-3 program, which Judge Keeton decided was
protectable "expression" of the Lotus program.  (It is a
basic principle of copyright law that a copyright protects
against unauthorized copying of an author's "expression,"
but not copying of the "ideas" in the work.)  The fact that
Paperback lost at the trial court level does not, of course,
mean that it has necessarily lost the case forever, for
Paperback can and will appeal Judge Keeton's ruling to a
federal appellate court.  (Paperback can't just appeal Judge
Keeton's ruling because it doesn't like the outcome.  An
appeal has to be based on a claim that the judge made some
errors of law, that is, misinterpreted the law in some way.
Paperback will, therefore, have to identify the specific
legal errors it thinks Judge Keeton made in his analysis of
copyright law as applied to the facts of this case to make
its appeal.)

     If the appellate court (which usually consists of a
panel of three judges) agrees with Paperback that Judge
Keeton made some errors of law, it can reverse his ruling.
Or if it agrees with Lotus that Judge Keeton made no legal
error, it will affirm his ruling.  The appellate court can
also send a case back to the trial judge for additional
proceedings if it decides the trial judge didn't make some
determination he or she should have made.  (For example, the
appellate court in the Lotus case could decide that Judge
Keeton should have made detailed findings about Paperback's
claim that the Lotus commands constitute an unprotectable
language or that Lotus' interface had become a de facto
standard, and could send the case back for specific findings
on these issues.)

     If Paperback loses in the appellate court, it will
probably try to persuade the U.S. Supreme Court to review
the appellate court's ruling, again arguing that errors of
law were made by the judges who had previously ruled on the
case.  (Lotus, of course, would be the one to seek Supreme
Court review if Paperback won in the appellate court.)
However, the Supreme Court takes only about 150 cases of the
many thousands that seek its attention each year, which
means that the appellate court decision in the Lotus case
will probably be the final resolution of the copyright
dispute between Lotus and Paperback (unless that court sends
it back to the trial court for further proceedings).

     The appellate process will take some time to happen.
It may be another year before the appellate court decides on
Paperback's appeal, and perhaps another year after that
before the Supreme Court decides whether it will review the
case.  Should the Supreme Court decide to hear an appeal in
the Lotus v. Paperback case, final resolution of the case
will obviously take even longer.  The Supreme Court can also
send the case back to the lower courts for further
proceedings, which, of course, would further delay final
resolution and would probably set off a new set of appeals
after the trial judge made the new findings for which the
case was sent back.

     Whatever the federal appellate court eventually does
with the Paperback appeal will become "the law" within the
First Circuit (which includes the states of Massachusetts,
Maine, New Hampshire, Rhode Island, and Puerto Rico) unless
the Supreme Court takes the case and makes a ruling which
would then be "the law" throughout the United States.
Elsewhere, the opinion of the First Circuit Court of Appeals
would most likely be taken into account (that is, given some
deference) in similar cases, but the Lotus v. Paperback
decision will not be binding in these other jurisdictions
unless judges in other cases decide to follow what the First
Circuit has done--which they need not do.    The main reason
why Borland recently filed a lawsuit in California asking
the court there for a ruling that the interface of its
Quattro program does not infringe Lotus' copyright was to
get its legal dispute with Lotus started in a jurisdiction
where the Lotus v. Paperback opinion is not a binding
precedent.  Judges in other circuits can sometimes be
persuaded to disagree with the ruling from a particular
circuit, and can adopt a conflicting rule which will then
become "the law" within that circuit.  The judge for Ashton
Tate's lawsuit against Fox Software, for example, could
reject Judge Keeton's ruling.  (When different circuits have
different rules on the same issue, that's when the Supreme
Court is most likely to take an appeal to resolve whatever
conflict exists between or among circuits.  But sometimes
conflicting rules will exist for many years before the
Supreme Court takes a case to resolve the conflict.)

WHAT THE APPEALS COURT SAYS TRUMPS WHAT THE TRIAL COURT SAYS

     We need to await the First Circuit's ruling in the
Lotus v. Paperback case, not only to know whether the trial
judge's ruling will be affirmed, reversed, or sent back for
further proceedings, but also because the First Circuit's
opinion is likely to give us a clearer view about the
correct interpretation of that case.  In general, appellate
court opinions, unless they are very short and explicitly
endorse the trial judge's reasoning, are more influential
(that is, they are given more weight as precedent) than
trial court decisions.  Often, after an appellate court
issues a decision in a case, the earlier trial court opinion
ceases to be used as a source of understanding as to the
meaning of the case.

     Certainly, to the extent there is a difference of
opinion between what the appellate court and the trial court
says about the case, the appellate court opinion is the one
that lawyers understand should be followed.  If, for
example, the appellate court agrees with a trial judge's
ruling, but has a completely different set of reasons for
doing so, the appellate court's reasons are the ones that
will matter (until and unless they are modified or abandoned
in subsequent cases).  An appellate court can decide to
state the ruling in the case more narrowly or more broadly
than had the trial court.  If it criticizes what a trial
court has said on an issue, or even says it is unnecessary
to reach an issue which the trial court decided, the
appellate court opinion will change the meaning that can be
ascribed to the case.

     Let's hope the appellate opinion in the Lotus v.
Paperback case will clarify and not obscure its meaning.
But in the meantime, all we have is the trial judge's
opinion, and it is a fair question to ask what
interpretation should be given to it.

INTERPRETING THE LOTUS OPINION:  HOLDINGS VERSUS DICTA

     One of the first (and most frustrating) things law
students have to learn is how to separate out the true
"holding" of a judicial opinion from all the other things a
judge might say in the course of an opinion (which lawyers
call "dicta" after its Latin expression) about issues
connected to the case.  One reason why the Lotus v.
Paperback opinion is difficult to interpret is because Judge
Keeton wrote a 110-page opinion to explain his decision in
favor of Lotus.  (Its length alone is an indication that
this opinion has a higher than average dicta-to-holding
ratio.)  More importantly, interpretation of this opinion is
difficult because there are some places in the opinion where
the judge seems to take a very broad view of what Lotus'
copyright protects about the 1-2-3 interface, and other
places where he seems to be deciding the case on a much
narrower basis.  One can't really know until the issues are
tested in subsequent litigation whether the broader or
narrower interpretation is the correct one, and what,
therefore, the true "holding" of the Lotus case is.

     Let me give you a very clear example of dicta from the
Lotus decision, after which we'll work our way into some
more subtle problems of sorting the dicta from the holding
in the case.  One of the main reasons the judge in the Lotus
case decided against Paperback was because the commercial
success of other spreadsheet programs with user interfaces
different from 1-2-3 demonstrated that it was not necessary,
as Paperback had contended, to have the same menu structure
as Lotus 1-2-3 to have a commercially viable spreadsheet
program.  The judge pointed to Excel's macro conversion
facility for Lotus commands as one alternative to copying
the 1-2-3 menu structure, and to the possibility of using a
help screen to show which Paperback commands were equivalent
to the Lotus 1-2-3 commands as another alternative to
copying Lotus' menu structure.     Yet after taking some
trouble to explain all of this, the judge went on to say:
"even if VP-Planner otherwise would have been a commercial
failure, and even if no other technical ways of achieving
macro and menu compatibility existed, the desire to achieve
'compatibility' or 'standardization' cannot override the
rights of authors to a limited monopoly in the expression
embodied in their intellectual work."

     This last statement is dicta, plain and simple.  The
facts of the Paperback case, at least as perceived by this
judge, did not present for resolution the issue of how
copyright law should be applied if commercial failure was
sure to result unless Paperback used the same command
structure as Lotus and there were no technical alternatives
but copying the menu structure to achieve compatibility.
The judge just got a little carried away with discussing the
issues, and said some things not necessary to resolving the
case before him.  While no lawyer would be pleased at the
prospect of arguing a case presenting the dicta issue to
that particular judge, lawyers know that one really can't
predict how a case presenting a different configuration of
facts would be resolved.

THE NARROW STATEMENTS

     Now let's move to an examination of statements from the
Lotus opinion upon which broad and narrow interpretations of
the Lotus decision might be based.  First, the narrow one:
At several points in the Lotus decision, the judge stressed
that Paperback had copied the whole of Lotus' menu structure
in explaining why he found copyright infringement.
Paperback had used the same command terms as Lotus, had
ordered and grouped them in the same way, and presented them
on menu screens in the same way as Lotus had.  It is
reasonable to infer from language of this sort that the
holding of the case was that copying the whole of another
firm's menu command structure is copyright infringement.

     If the "holding" in the Lotus case is only that copying
the whole menu structure is infringement, that would suggest
that Paperback might only have to arrange the commands
differently than Lotus to avoid infringement.  (A different
arrangement would present a different menu structure, would
it not?)  In a similar software user interface case decided
a few years ago in Georgia (Digital Communications
Association v. Softklone), a federal judge ruled that it was
not an infringement for a competitor to have the same set of
commands as another copyrighted program, but only to order
the commands in the same way when there were lots of other
arrangements that could have been made of that set of
commands.  The Lotus opinion does not say whether Judge
Keeton agreed or disagreed with this aspect of the Softklone
decision.  (Even if Judge Keeton disagreed, however, the
Softklone case is still "the law" in Georgia.)

     If the "holding" in the Lotus case is this narrow one,
the Lotus decision may not have much relevance for how the
Apple v. Microsoft case will be resolved.  For one thing,
the license between Microsoft and Apple, which the judge in
that case has already ruled covers a considerable amount of
what Microsoft is said to have taken from Apple, is one
important difference.  For another, there are more
differences between the Apple and Microsoft interfaces than
between the Lotus and Paperback interfaces.

     Another bit of evidence that the holding in the Lotus
case is a narrow one is the judge's discussion of other ways
to achieve compatibility with Lotus 1-2-3 besides directly
copying the whole menu structure.  The judge's use of
Excel's macro conversion facility as an example of an
alternative Paperback had besides copying Lotus' menu
structure suggests (although the judge does not directly say
so) that the judge does not think it would infringe Lotus'
copyright to adopt such an alternative.  Similarly, by
giving the example of a help screen to display Paperback's
equivalents to Lotus' commands, the judge suggests that this
too would not infringe (although again the judge does not
come out and say so).  Nor does the judge indicate how he
would rule if Paperback simply allowed users to input Lotus
commands but didn't display them on the screen, or allowed
users to create their own menu structure.  But to the extent
that the  "holding" in the Lotus case is a narrow one,
making only the copying of the whole of a menu structure an
infringement, this conduct too would seem to be non-
infringing.

     Lotus, however, might take quite a different view of
the interpretation that should be given to Judge Keeton's
opinion.  Lotus might argue that even if Paperback (or
someone else) arranged the commands differently, converted
them in some way, or even accepted the Lotus commands
without displaying them on the screen, copyright
infringement should still be found because these competitive
interfaces would still be based on and copied from Lotus'
interface.  They would still take a free ride on the
intellectual work done by Lotus and the value created by
Lotus.  Since it is possible to design a different interface
for a spreadsheet program, Lotus would argue its competitors
should be put to doing so.  Lotus could look to some broad
statements in Judge Keeton's opinion to support its
arguments on these points.

THE BROAD STATEMENTS

     Judge Keeton's opinion, for example, refers to Lotus'
interface as its "most unique and valuable" aspect, seeming
to say this was why the interface must be protected by
copyright law.  He also indicates that Lotus' copyright
covers its "user interface," not just the "screen displays"
that the Lotus program might generate.  Judge Keeton
emphasizes that "nonliteral" elements of the Lotus interface
can be protected by copyright law.  (No, the judge does not
clearly define what he means by "nonliteral," or indicate
which nonliteral features of an interface are protectable
and which are not, although he does say it is acceptable for
others to use the "\" key as Lotus does.)  He also cites an
article written by an IBM lawyer to the effect that user
interfaces need "strong" copyright protection.

     But perhaps the broadest of Judge Keeton's statements
is this:  "The bulk of the creative work is in the
conceptualization of a computer program and its user
interface, rather than its encoding, and . . . 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."  This and some similar statements in Judge
Keeton's opinion would seem to suggest that anything about
the Lotus 1-2-3 interface that Lotus thinks is valuable
enough to sue about could be the basis for a successful
copyright infringement lawsuit against its competitors.
(Here, it may be worth noting that the copyright statute
makes clear that however brilliant a concept may be and
however many alternative concepts might exist, concepts are
not protected by copyright; nor are systems, procedures,
processes, or methods of operation.)  Lotus, Apple, and
plaintiffs in other software copyright lawsuits will look to
statements of this sort to persuade judges in other cases
that the holding in the Lotus case was a broad one, or even
if dicta, the statements are nonetheless proper
interpretations of the law.

THE REJECTION OF PAPERBACK'S PUBLIC POLICY ARGUMENTS

     Judge Keeton's opinion in the Lotus case may have broad
implications for other user interface copyright lawsuits
because of its strong rejection of several public policy
arguments made by Paperback.  Often, if one judge has
rejected a public policy argument, judges in later cases
will reject similar arguments because they have been
rejected in an earlier case, saving themselves the trouble
of going through again what one judge has presumably already
thought through quite carefully.  This subsection will
discuss Judge Keeton's reaction to three of Paperback's
public policy arguments:  1) that the Lotus interface is a
language which is unprotectable by copyright law, 2) that
the public interest in standardization overrides Lotus'
private interest in protecting its command structure, and
3) that it would be inappropriate to grant broad copyright
protection for user interfaces because of the harmful
effects such a rule would have on progress in the software
field.

     Paperback argued that the Lotus command terms, because
they were the method by which users could communicate with
the program and because they could be used to construct
macros, were a kind of language.  Languages themselves,
Paperback argued, cannot be protected by copyright law,
although particular expressions of them may be.  The creator
of Esperanto, for example, could copyright a dictionary
defining the words in the language, or a book explaining how
to use it.  But a copyright in such books, Paperback argued,
would not mean that others would infringe by speaking
Esperanto or writing their own books in or about Esperanto.
Languages are, in their nature, a shared resource of a
community, and unprotectable by copyright law.  Paperback
submitted a sworn statement from a computer scientist
detailing how and why the Lotus commands should be
considered a language.  The judge's response to this
argument was to castigate Paperback's defense lawyer for
engaging in "word games."  He was not persuaded that the
Lotus commands constituted a language, but went on to say
that Paperback had cited no precedent to show that a
language could not be protected by copyright law.  (An
article arguing Judge Keeton made a legal error on this
point will be published later this fall.[6])

     Paperback's standardization argument had two strands.
Paperback first argued that its interface, like Lotus'
before it, built upon a common base of innovations from
previous spreadsheet programs.  Paperback pointed to
respects in which the Lotus command structure was similar to
the command structure of Visicalc which was the first
commercial electronic spreadsheet program, and ways in which
its interface differed from Lotus'.  From this, Paperback
argued that it had copied only standard features of
spreadsheet interfaces, and argued that its addition of new
interface elements demonstrated that Paperback had continued
the pattern of incremental advances that had been
characteristic of evolution of the software field.  But
Paperback also argued that to the extent that Lotus'
interface was distinctive from previous spreadsheet
interfaces, Lotus' interface had become a de facto standard,
much like the QWERTY keyboard has become for typewriters,
and consequently, public policy considerations favoring
standardization should override Lotus' private interest in
the protection of the Lotus 1-2-3 interface.

     Judge Keeton rejected both strands of the
standardization argument.  He did not see the same degree of
similarity between the Visicalc and Lotus interfaces as
Paperback did, but more significantly, was not persuaded by
the incremental improvement argument.  Paperback, he said,
was not just selling whatever incremental improvement on the
spreadsheet program concept it had developed; it was selling
copies of Lotus' expression as well.  That, the court ruled
was impermissible as long as other interfaces could be
created for spreadsheet programs.

     The de facto standard argument was even more forcefully
rejected by the judge.  He seemed, in fact, to be outraged
at the very idea underlying the argument:  "The more
innovative the expression of an idea is, the more important
is copyright protection for that expression.  By arguing
that Lotus 1-2-3 was so innovative that it occupied the
field and set a de facto industry standard, and that
therefore the defendants were free to copy plaintiff's
expression, defendants have flipped copyright on its head.
Copyright would be perverse if it only protected mundane
increments while leaving unprotected as part of the public
domain those advancements that are more strikingly
innovative."  The judge made no findings as to whether the
Lotus interface had, in fact, become a de facto standard
because he perceived no basis in copyright law for the
standardization argument.  Judge Keeton did not even discuss
possible interests of the user community in standardization.
(Because there is some case law permitting standardized map
symbol systems and permitting user interests in standardized
computer program input formats to be considered in the
assessment of what copyright protects, Judge Keeton may have
committed legal error on this issue as well.)

     The judge allowed Paperback considerable latitude to
submit opinion evidence about the likely effects of the
Lotus case on progress in the software industry.  Dan
Bricklin, the co-developer of Visicalc, was one of a number
of computer science and software industry people who
submitted lengthy sworn statements expressing the opinion
that copyright protection for user interface command
structures would have negative consequences for progress in
the software field.  The judge was also given a copy of an
article reporting the results of the survey Robert Glushko
and I did at CHI '89 on the user interface field's view of
the "look and feel" lawsuits.[7,8]  That survey showed that
while people in the field thought copyright should protect
source and object code, they overwhelmingly opposed
copyright protection for look and feel, commands, and most
other aspects of user interfaces.  The survey also showed
that people in the field opposed the kind of "strong"
copyright protection for user interfaces being sought in the
Lotus and Apple cases because of the harmful consequences
they thought such decisions would have for the field.
(Lotus, of course, also submitted sworn statements from
experts predicting positive consequences from recognizing
copyright protection for its interface.)

     Judge Keeton's opinion discusses the Bricklin statement
and twice cites the CHI '89 survey report, but he ultimately
disregarded all of the opinion evidence submitted in the
case as irrelevant to resolution of the case before him.
The judge thought that even if Paperback was right that
progress in the software industry would be impaired by
protecting Lotus' interface, its arguments were nonetheless
misdirected.  Public policy arguments of this sort should be
made, said the judge, to the Congress, not to judges who had
to follow what Congress had mandated, here to protect
computer programs through copyright law.

CONCLUSION
     I am a lawyer.  I interpret cases for a living.  I have
read Judge Keeton's opinion carefully and I have worked very
hard to figure out what it means.  I would tell you what it
meant if I could figure it out, but I can't.  And neither
can anyone else.  So anyone who says he is sure the Lotus
decision is a very narrow one and only makes copying the
whole of someone else's interface illegal is giving his or
her opinion and making a prediction, but only time (and
further litigation) will tell if that person is right or
wrong.  (Because I think it should be a narrow opinion, I am
tempted to tell you it is one, but I can't honestly do
that.)  Similarly, anyone who is sure that the Lotus opinion
means that Ashton Tate will win its lawsuit against Fox, or
that Apple will win its lawsuit against Microsoft is also
offering a prediction which may or may not turn out to be
true.

     Anyone who tells you they can't tell exactly what Judge
Keeton's opinion means (except for cases involving the
copying of the whole of another's interface) is being
honest, but who wants to pay a lawyer $200 an hour to be
told "your guess is as good as mine?"  A cautious lawyer
might well say to a client who is about to design a user
interface for a program that will compete with others
already in the marketplace:  "The only completely safe thing
to do is to make your interface as different as possible
from other interfaces in the marketplace, or if you decide
to make it similar, be prepared to defend your decision and
to document it, for it will be an uphill battle once
evidence is presented that it can be done differently."

     I personally have always thought Lotus v. Paperback was
a close case.  I thought it was close because copyright law
has long protected compilations (whether of words, facts,
statistics, pictorial images, or some combination of these
things).  It is very hard for a copyright lawyer to look at
a set of screen displays like those that present Lotus'
commands in a particular arrangement, and not see a
protectable compilation of words.  What made the Paperback
case so strong for Lotus was that, notwithstanding all the
talk in Judge Keeton's opinion about the "nonliteral"
similarities in the two interfaces, Paperback's interface
was literally very similar to Lotus':  It used the same
commands, ordered them in the same way, and displayed them
in very much the same way.  (As the terms are usually used
in copyright cases, two works are "literally similar" when
they are identical or nearly so, e.g., word for word
copying.  "Nonliteral similarities" have a more abstract
character, as when detailed sequences of the plot of a drama
are copied, but all the words of the dialogue are different.
As best I can make it out, Judge Keeton used the term
"literal similarities" to mean source or object code
copying, and regarded all other similarities as
"nonliteral.")  I could have written an opinion for Judge
Keeton that would have concluded Paperback infringed Lotus'
copyright.  (I think I could have written an even better
opinion in Paperback's favor, but that is because I take the
language, standardization, and functionality arguments
Paperback made more seriously than Judge Keeton did.)

     One thing you should realize is that Judge Keeton
worked very hard on this case (evidenced, in part, by the
110 pages of analysis of the case and the issues it raised).
He tried very hard to do the right thing and to apply
copyright law as best he could to the complex problems
thrown at him by the lawyers.  He knew everybody would be
looking to what he did (and why) in applying copyright law
to user interfaces.  While his opinion is, at times,
somewhat idiosyncratic in its analysis of copyright law,
Judge Keeton was consistent with some of the existing
precedents in ruling as he did, although not with all of
them.

     I have for some years argued that copyright law is far
from an optimal form of intellectual property protection for
computer programs because of the functional character of
programs.[9]  Copyright law is a very distinct body of rules
and principles that have a long tradition of protecting
written and pictorial works, where the greater the diversity
of expression, the more rich is the culture.  Over the
years, the distinction between "idea" and "expression" have
been reasonably well worked out for these kinds of works.
But computer programs are a very different kind of work.
Copyright law has never before protected functional works
like machines, machine processes, or human-machine
interfaces, which is why there is so little precedent in
copyright law to give guidance on how to resolve cases like
Lotus v. Paperback which involve an interface between human
users and a machine.  Judge Keeton rejected Papberback's
functionality defense saying that Lotus' interface wasn't
functional (which would have made it unprotectable by
copyright law) because there was more than one way to build
an interface for a program that performed spreadsheet
functions.

     If people in the software industry don't think that the
outcome in the Lotus v. Paperback case was the right
outcome, or are worried about the broader implications of
what Judge Keeton said in his opinion, or want a fast rather
than litigation's tediously slow method of resolution of the
issues about what copyright law should protect about program
interfaces, they might want to think about supporting
legislative initiatives that would clarify or change the
law.  For now, all we can do is hope that the First Circuit
Court of Appeals will clarify what interpretation should be
given to the Lotus case.


REFERENCES

[1]  Zachman, W.  Lotus-Paperback Precedent Need Not Harm
The Industry.  PC Week, vol. 7, no. 27, p. 10 (July 9,
1990).

[2]  Parker, R.  Lotus' Copyright Protection Is Turning Into
a Feeding Frenzy.  Infoworld, vol. 12, no. 28, p. 42
(July 9, 1990).

[3]  The Paperback Opinion Draws a Reasonable Line, PC Week,
vol. 7, no. 27, p. 34 (July 16, 1990).

[4]  Margolis, N.  Users Biggest Losers in Spreadsheet Wars,
Computerworld, vol. 24, no. 29, p. 8 (July 16, 1990).

[5]  Ferranti, M.  Judge Rules in Lotus' Favor in Copyright
Suit, PC Week, vol. 7, no. 26, p. 6 (July 2, 1990).

[6]  Lowry, E.  Copyright Protection For Computer Languages:
Creative Incentive or Technological Threat?  Emory Law
Journal, 39:___ (forthcoming fall 1990).

[7]  Samuelson, P. and R. Glushko.  Survey on the Look &
Feel Lawsuits, Communications of the ACM 33:483 (May 1990).

[8]  Samuelson, P. and R. Glushko.  Comparing the Views of
Lawyers and User Interface Designers on the Software
Copyright Look & Feel Lawsuits.  Jurimetrics J. 30:121
(1989).

[9]  Samuelson, P.  CONTU Revisited:  The Case Against
Copyright Protection for Computer Programs in Machine-
Readable Form, Duke Law J., 1984:663 (1984).


Pamela Samuelson is a Professor of Law at the University of
Pittsburgh School of Law.