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- From: bhayden@teal.csn.org (Bruce Hayden)
- Subject: Re: Look and Feel Infringement (was: Interface monopolies)
- Message-ID: <bhayden.721140119@teal>
- Sender: news@csn.org (news)
- Nntp-Posting-Host: teal.csn.org
- Organization: Colorado SuperNet, Inc.
- References: <1992Nov3.184022.22163@fcom.cc.utah.edu> <dbAj02yw29ss01@JUTS.ccc.amdahl.com>
- Date: Sat, 7 Nov 1992 12:41:59 GMT
- Lines: 58
-
- tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
-
- >In article <1992Nov3.184022.22163@fcom.cc.utah.edu>, terry@cs.weber.edu (A
- >Wizard of Earth C) writes:
- >> "Look and feel" is a direct result of an attempt to extend the protection
- >> granted in a copyright to effectively produce a "software patent", or at
- >> least the equivalent.
-
- Unfortunately, look and feel C/R is invariably much broader than patent
- protection. Additionally, the C/R is never examined.
-
- >"Look and Feel" did not originate with software copyright. It originated in
- >a case where Sid and Marty Kroft sued McDonald's for producing television
- >commercials with the same "look and feel" as (but no literal copying of) the
- >Kroft TV shows like "H.R. Puffenstuff". It's not a result of an attempt to
- >effectively produce a software patent.
-
- I do not agree with your logic. Yes, the concept was not invented just
- for software. But that is where it is the most insidious. I believe
- that that is partially because of the nature of the medium. Few
- media have as much difference between the literal aspects and the
- "look and feel". Two programs may look and feel almost identical, yet
- have _no_ similarities in their literal embodiment. This is not the
- case with most media. For example, in order to get the same feel
- from two books, there is invariably some identifiable literal copying.
- This need not be the case with software, and almost never is. Note
- the (in?)famous look and feel software cases: Lotus v. Paperback,
- Lotus v. Borland, Gates v. Bando, etc. There was never _any_
- "literal" copying of the _protected_ source code.
-
- I believe that Look and Feel is so dangerous primarily because it is
- so easy and so broad. You need not register the work until you decide
- to go to court (as was done by Gates Rubber in Gates v. Bando).
-
- The Gates v. Bando case is illustrative of the problems:
- 1) the plaintiff did not register until the day before filing suit.
- 2) the plaintiff did not mark his works until at least 4 years
- after the alleged infringement. (Note - pre Berne work)
- 3) The primary similarities between the two works were functional.
- The main thing that Bando did was to hire away a Gates employ
- to create a work that did the same thing in somewhat the same
- manner.
-
- The Lotus cases are troubling on a slightly different level.
- Lotus is obviously trying to do in the courts what it cannot do
- in the marketplace. A defacto standard had grown up. Companies
- like Borland did not feel that they could operate without being
- compatable with the millions of 123 macros out there. They also
- probably couldn't get in the door in corporate America if the
- corporations were facing the retraining costs of converting spreadsheets.
- (actually, several people have suggested that Gates went after
- Bando for purely competitive reasons, having nothing to do with
- the programs at issue in the suit).
-
- Bruce Hayden
- bhayden@csn.org
- (303) 758-8400
-
-