Lotus v. Borland ( 1995 )

April 19, 1995
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 93-2214
LOTUS DEVELOPMENT CORPORATION,
Plaintiff, Appellee,
v.
BORLAND INTERNATIONAL, INC.,
Defendant, Appellant.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on March 9, 1995, is amended as
follows:
On page 38, line 16: Change "See id. at 562." to "See id. at
562. But see Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164,
1174 (1994)."
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 93-2214
LOTUS DEVELOPMENT CORPORATION,
Plaintiff, Appellee,
v.
BORLAND INTERNATIONAL, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Gary L. Reback, with whom Peter N. Detkin, Michael Barclay,
Isabella E. Fu, Wilson Sonsini Goodrich & Rosati, Peter E. Gelhaar,
Katherine L. Parks, and Donnelly Conroy & Gelhaar, were on brief for
appellant.
Matthew P. Poppel, et. al, were on brief for Computer Scientists,
amicus curiae.
Dennis S. Karjala and Peter S. Menell on brief, amici curiae.
Jeffrey C. Cannon and Baker Keaton Seibel & Cannon were on brief
for Computer Software Industry Association, amicus curiae.
Laureen E. McGurk, David A. Rabin, Bryan G. Harrison and Morris
Manning & Martin were on brief for Chicago Computer Society, Diablo
Users Group, Danbury Area Computer Society, IBM AB Users Group,
Kentucky-Indiana Personal Computer Users Group, Long Island PC Users
Group, Napa Valley PC Users Group, Pacific Northwest PC Users Group,
Palmetto Personal Computer Club, Philadelphia Area Computer Society,
Inc., Phoenix IBM PC Users Group, Pinellas IBM PC Users Group, Quad
Cities Computer Society, Quattro Pro Users Group, Sacramento PC Users
Group, San Francisco PC Users Group, Santa Barbara PC Users Group,
Twin Cities PC Users Group, and Warner Robbins Personal Computer
Association, amici curiae.
Diane Marie O'Malley and Hanson Bridgett Marcus Vlahos & Rudy
were on brief for Software Entrepreneurs' Forum, amicus curiae.
Peter M.C. Choy was on brief for American Committee for
Interoperable Systems, amicus curiae.
Howard B. Abrams, Howard C. Anawalt, Stephen R. Barnett, Ralph S.
Brown, Stephen L. Carter, Amy B. Cohen, Paul J. Heald, Peter A. Jaszi,
John A. Kidwell, Edmund W. Kitch, Roberta R. Kwall, David L. Lange,
Marshall Leaffer, Jessica D. Litman, Charles R. McManis, L. Ray
Patterson, Jerome H. Reichman, David A. Rice, Pamela Samuelson, David
J. Seipp, David E. Shipley, Lionel S. Sobel, Alfred C. Yen, and Diane
L. Zimmerman were on brief for Copyright Law Professors, amicus
curiae.
Henry B. Gutman, with whom Kerry L. Konrad, Joshua H. Epstein,
Kimberly A. Caldwell, O'Sullivan Graev & Karabell, Thomas M. Lemberg,
James C. Burling, and Hale and Dorr, were on brief for appellee.
Morton David Goldberg, June M. Besek, David O. Carson, Jesse M.
Feder, Schwab Goldberg Price & Dannay, and Arthur R. Miller were on
brief for Apple Computer, Inc., Digital Equipment Corporation,
International Business Machines Corporation, and Xerox Corporation,
amici curiae.
Jon A. Baumgarten, Proskauer Rose Goetz & Mendelsohn, and Robert
A. Gorman were on brief for Adobe Systems, Inc., Apple Computer, Inc.,
Computer Associates International, Inc., Digital Equipment
Corporation, and International Business Machines Corporation, amici
curiae.
Herbert F. Schwartz, Vincent N. Palladino, Susan Progoff, Fish &
Neave, William J. Cheeseman, and Foley Hoag & Eliot, were on brief for
Computer and Business Equipment Manufacturers Association, amicus
curiae.
March 9, 1995
STAHL, Circuit Judge. This appeal requires us to
STAHL, Circuit Judge.
decide whether a computer menu command hierarchy is
copyrightable subject matter. In particular, we must decide
whether, as the district court held, plaintiff-appellee Lotus
Development Corporation's copyright in Lotus 1-2-3, a
computer spreadsheet program, was infringed by defendant-
appellant Borland International, Inc., when Borland copied
the Lotus 1-2-3 menu command hierarchy into its Quattro and
Quattro Pro computer spreadsheet programs. See Lotus Dev.
Corp. v. Borland Int'l, Inc., 788 F. Supp. 78 (D. Mass. 1992)
("Borland I"); Lotus Dev. Corp. v. Borland Int'l, Inc., 799
F. Supp. 203 (D. Mass. 1992) ("Borland II"); Lotus Dev. Corp.
v. Borland Int'l, Inc., 831 F. Supp. 202 (D. Mass. 1993)
("Borland III"); Lotus Dev. Corp. v. Borland Int'l, Inc., 831
F. Supp. 223 (D. Mass. 1993) ("Borland IV").
I.
I.
Background
Background
Lotus 1-2-3 is a spreadsheet program that enables
users to perform accounting functions electronically on a
computer. Users manipulate and control the program via a
series of menu commands, such as "Copy," "Print," and "Quit."
Users choose commands either by highlighting them on the
screen or by typing their first letter. In all, Lotus 1-2-3
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has 469 commands arranged into more than 50 menus and
submenus.
Lotus 1-2-3, like many computer programs, allows
users to write what are called "macros." By writing a macro,
a user can designate a series of command choices with a
single macro keystroke. Then, to execute that series of
commands in multiple parts of the spreadsheet, rather than
typing the whole series each time, the user only needs to
type the single pre-programmed macro keystroke, causing the
program to recall and perform the designated series of
commands automatically. Thus, Lotus 1-2-3 macros shorten the
time needed to set up and operate the program.
Borland released its first Quattro program to the
public in 1987, after Borland's engineers had labored over
its development for nearly three years. Borland's objective
was to develop a spreadsheet program far superior to existing
programs, including Lotus 1-2-3. In Borland's words, "[f]rom
the time of its initial release . . . Quattro included
enormous innovations over competing spreadsheet products."
The district court found, and Borland does not now
contest, that Borland included in its Quattro and Quattro Pro
version 1.0 programs "a virtually identical copy of the
entire 1-2-3 menu tree." Borland III, 831 F. Supp. at 212
(emphasis in original). In so doing, Borland did not copy
any of Lotus's underlying computer code; it copied only the
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words and structure of Lotus's menu command hierarchy.
Borland included the Lotus menu command hierarchy in its
programs to make them compatible with Lotus 1-2-3 so that
spreadsheet users who were already familiar with Lotus 1-2-3
would be able to switch to the Borland programs without
having to learn new commands or rewrite their Lotus macros.
In its Quattro and Quattro Pro version 1.0
programs, Borland achieved compatibility with Lotus 1-2-3 by
offering its users an alternate user interface, the "Lotus
Emulation Interface." By activating the Emulation Interface,
Borland users would see the Lotus menu commands on their
screens and could interact with Quattro or Quattro Pro as if
using Lotus 1-2-3, albeit with a slightly different looking
screen and with many Borland options not available on Lotus
1-2-3. In effect, Borland allowed users to choose how they
wanted to communicate with Borland's spreadsheet programs:
either by using menu commands designed by Borland, or by
using the commands and command structure used in Lotus 1-2-3
augmented by Borland-added commands.
Lotus filed this action against Borland in the
District of Massachusetts on July 2, 1990, four days after a
district court held that the Lotus 1-2-3 "menu structure,
taken as a whole -- including the choice of command terms
[and] the structure and order of those terms," was protected
expression covered by Lotus's copyrights. Lotus Dev. Corp.
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5
v. Paperback Software Int'l, 740 F. Supp. 37, 68, 70 (D.
Mass. 1990) ("Paperback").1 Three days earlier, on the
morning after the Paperback decision, Borland had filed a
declaratory judgment action against Lotus in the Northern
District of California, seeking a declaration of non-
infringement. On September 10, 1990, the district court in
California dismissed Borland's declaratory judgment action in
favor of this action.
Lotus and Borland filed cross motions for summary
judgment; the district court denied both motions on March 20,
1992, concluding that "neither party's motion is supported by
the record." Borland I, 788 F. Supp. at 80. The district
court invited the parties to file renewed summary judgment
motions that would "focus their arguments more precisely" in
light of rulings it had made in conjunction with its denial
of their summary judgment motions. Id. at 82. Both parties
filed renewed motions for summary judgment on April 24, 1992.
In its motion, Borland contended that the Lotus 1-2-3 menus
were not copyrightable as a matter of law and that no
reasonable trier of fact could find that the similarity
between its products and Lotus 1-2-3 was sufficient to
sustain a determination of infringement. Lotus contended in
1. Judge Keeton presided over both the Paperback litigation
and this case.
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its motion that Borland had copied Lotus 1-2-3's entire user
interface and had thereby infringed Lotus's copyrights.
On July 31, 1992, the district court denied
Borland's motion and granted Lotus's motion in part. The
district court ruled that the Lotus menu command hierarchy
was copyrightable expression because
[a] very satisfactory spreadsheet menu
tree can be constructed using different
commands and a different command
structure from those of Lotus 1-2-3. In
fact, Borland has constructed just such
an alternate tree for use in Quattro
Pro's native mode. Even if one holds the
arrangement of menu commands constant, it
is possible to generate literally
millions of satisfactory menu trees by
varying the menu commands employed.
Borland II, 799 F. Supp. at 217. The district court
demonstrated this by offering alternate command words for the
ten commands that appear in Lotus's main menu. Id. For
example, the district court stated that "[t]he ``Quit' command
could be named ``Exit' without any other modifications," and
that "[t]he ``Copy' command could be called ``Clone,' ``Ditto,'
``Duplicate,' ``Imitate,' ``Mimic,' ``Replicate,' and
``Reproduce,' among others." Id. Because so many variations
were possible, the district court concluded that the Lotus
developers' choice and arrangement of command terms,
reflected in the Lotus menu command hierarchy, constituted
copyrightable expression.
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In granting partial summary judgment to Lotus, the
district court held that Borland had infringed Lotus's
copyright in Lotus 1-2-3:
[A]s a matter of law, Borland's Quattro
products infringe the Lotus 1-2-3
copyright because of (1) the extent of
copying of the "menu commands" and "menu
structure" that is not genuinely disputed
in this case, (2) the extent to which the
copied elements of the "menu commands"
and "menu structure" contain expressive
aspects separable from the functions of
the "menu commands" and "menu structure,"
and (3) the scope of those copied
expressive aspects as an integral part of
Lotus 1-2-3.
Borland II, 799 F. Supp. at 223 (emphasis in original). The
court nevertheless concluded that while the Quattro and
Quattro Pro programs infringed Lotus's copyright, Borland had
not copied the entire Lotus 1-2-3 user interface, as Lotus
had contended. Accordingly, the court concluded that a jury
trial was necessary to determine the scope of Borland's
infringement, including whether Borland copied the long
prompts2 of Lotus 1-2-3, whether the long prompts contained
2. Lotus 1-2-3 utilizes a two-line menu; the top line lists
the commands from which the user may choose, and the bottom
line displays what Lotus calls its "long prompts." The long
prompts explain, as a sort of "help text," what the
highlighted menu command will do if entered. For example,
the long prompt for the "Worksheet" command displays the
submenu that the "Worksheet" command calls up; it reads
"Global, Insert, Delete, Column, Erase, Titles, Window,
Status, Page." The long prompt for the "Copy" command
explains what function the "Copy" command will perform:
"Copy a cell or range of cells." The long prompt for the
"Quit" command reads, "End 1-2-3 session (Have you saved your
work?)."
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expressive elements, and to what extent, if any, functional
constraints limited the number of possible ways that the
Lotus menu command hierarchy could have been arranged at the
time of its creation. See Borland III, 831 F. Supp. at 207.
Additionally, the district court granted Lotus summary
judgment on Borland's affirmative defense of waiver, but not
on its affirmative defenses of laches and estoppel. Borland
II, 799 F. Supp. at 222-23.
Immediately following the district court's summary
judgment decision, Borland removed the Lotus Emulation
Interface from its products. Thereafter, Borland's
spreadsheet programs no longer displayed the Lotus 1-2-3
menus to Borland users, and as a result Borland users could
no longer communicate with Borland's programs as if they were
using a more sophisticated version of Lotus 1-2-3.
Nonetheless, Borland's programs continued to be partially
compatible with Lotus 1-2-3, for Borland retained what it
called the "Key Reader" in its Quattro Pro programs. Once
turned on, the Key Reader allowed Borland's programs to
Prior to trial, the parties agreed to exclude the
copying of the long prompts from the case; Lotus agreed not
to contend that Borland had copied the long prompts, Borland
agreed not to argue that it had not copied the long prompts,
and both sides agreed not to argue that the issue of whether
Borland had copied the long prompts was material to any other
issue in the case. See Borland III, 831 F. Supp. at 208.
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understand and perform some Lotus 1-2-3 macros.3 With the
Key Reader on, the Borland programs used Quattro Pro menus
for display, interaction, and macro execution, except when
they encountered a slash ("/") key in a macro (the starting
key for any Lotus 1-2-3 macro), in which case they
interpreted the macro as having been written for Lotus 1-2-3.
Accordingly, people who wrote or purchased macros to shorten
the time needed to perform an operation in Lotus 1-2-3 could
still use those macros in Borland's programs.4 The district
court permitted Lotus to file a supplemental complaint
alleging that the Key Reader infringed its copyright.
The parties agreed to try the remaining liability
issues without a jury. The district court held two trials,
the Phase I trial covering all remaining issues raised in the
original complaint (relating to the Emulation Interface) and
the Phase II trial covering all issues raised in the
supplemental complaint (relating to the Key Reader). At the
Phase I trial, there were no live witnesses, although
considerable testimony was presented in the form of
affidavits and deposition excerpts. The district court ruled
upon evidentiary objections counsel interposed. At the Phase
3. Because Borland's programs could no longer display the
Lotus menu command hierarchy to users, the Key Reader did not
allow debugging or modification of macros, nor did it permit
the execution of most interactive macros.
4. See Borland IV, 831 F. Supp. at 226-27, for a more
detailed explanation of macros and the Key Reader.
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II trial, there were two live witnesses, each of whom
demonstrated the programs for the district court.
After the close of the Phase I trial, the district
court permitted Borland to amend its answer to include the
affirmative defense of "fair use." Because Borland had
presented all of the evidence supporting its fair-use defense
during the Phase I trial, but Lotus had not presented any
evidence on fair use (as the defense had not been raised
before the conclusion of the Phase I trial), the district
court considered Lotus's motion for judgment on partial
findings of fact. See Fed. R. Civ. P. 52(c). The district
court held that Borland had failed to show that its use of
the Lotus 1-2-3 menu command hierarchy in its Emulation
Interface was a fair use. See Borland III, 831 F. Supp. at
208.
In its Phase I-trial decision, the district court
found that "each of the Borland emulation interfaces contains
a virtually identical copy of the 1-2-3 menu tree and that
the 1-2-3 menu tree is capable of a wide variety of
expression." Borland III, 831 F. Supp. at 218. The district
court also rejected Borland's affirmative defenses of laches
and estoppel. Id. at 218-23.
In its Phase II-trial decision, the district court
found that Borland's Key Reader file included "a virtually
identical copy of the Lotus menu tree structure, but
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represented in a different form and with first letters of
menu command names in place of the full menu command names."
Borland IV, 831 F. Supp. at 228. In other words, Borland's
programs no longer included the Lotus command terms, but only
their first letters. The district court held that "the Lotus
menu structure, organization, and first letters of the
command names . . . constitute part of the protectable
expression found in [Lotus 1-2-3]." Id. at 233.
Accordingly, the district court held that with its Key
Reader, Borland had infringed Lotus's copyright. Id. at 245.
The district court also rejected Borland's affirmative
defenses of waiver, laches, estoppel, and fair use. Id. at
235-45. The district court then entered a permanent
injunction against Borland, id. at 245, from which Borland
appeals.
This appeal concerns only Borland's copying of the
Lotus menu command hierarchy into its Quattro programs and
Borland's affirmative defenses to such copying. Lotus has
not cross-appealed; in other words, Lotus does not contend on
appeal that the district court erred in finding that Borland
had not copied other elements of Lotus 1-2-3, such as its
screen displays.
II.
II.
Discussion
Discussion
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On appeal, Borland does not dispute that it
factually copied the words and arrangement of the Lotus menu
command hierarchy. Rather, Borland argues that it "lawfully
copied the unprotectable menus of Lotus 1-2-3." Borland
contends that the Lotus menu command hierarchy is not
copyrightable because it is a system, method of operation,
process, or procedure foreclosed from protection by 17 U.S.C.
102(b). Borland also raises a number of affirmative
defenses.
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A. Copyright Infringement Generally
To establish copyright infringement, a plaintiff
must prove "(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are
original." Feist Publications, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991); see also Data Gen. Corp. v. Grumman
Sys. Support Corp., 36 F.3d 1147, 1160 n.19 (1st Cir. 1994);
Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d
600, 605 (1st Cir. 1988). To show ownership of a valid
copyright and therefore satisfy Feist's first prong, a
plaintiff must prove that the work as a whole is original and
that the plaintiff complied with applicable statutory
formalities. See Engineering Dynamics, Inc. v. Structural
Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994). "In
judicial proceedings, a certificate of copyright registration
constitutes prima facie evidence of copyrightability and
shifts the burden to the defendant to demonstrate why the
copyright is not valid." Bibbero Sys., Inc. v. Colwell Sys.,
Inc., 893 F.2d 1104, 1106 (9th Cir. 1990); see also 17 U.S.C.
410(c); Folio Impressions, Inc. v. Byer California, 937
F.2d 759, 763 (2d Cir. 1991) (presumption of validity may be
rebutted).
To show actionable copying and therefore satisfy
Feist's second prong, a plaintiff must first prove that the
alleged infringer copied plaintiff's copyrighted work as a
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factual matter; to do this, he or she may either present
direct evidence of factual copying or, if that is
unavailable, evidence that the alleged infringer had access
to the copyrighted work and that the offending and
copyrighted works are so similar that the court may infer
that there was factual copying (i.e., probative similarity).
Engineering Dynamics, 26 F.3d at 1340; see also Concrete
Mach., 843 F.2d at 606. The plaintiff must then prove that
the copying of copyrighted material was so extensive that it
rendered the offending and copyrighted works substantially
similar. See Engineering Dynamics, 26 F.3d at 1341.
In this appeal, we are faced only with whether the
Lotus menu command hierarchy is copyrightable subject matter
in the first instance, for Borland concedes that Lotus has a
valid copyright in Lotus 1-2-3 as a whole5 and admits to
factually copying the Lotus menu command hierarchy. As a
result, this appeal is in a very different posture from most
5. Computer programs receive copyright protection as
"literary works." See 17 U.S.C. 102(a)(1) (granting
protection to "literary works") and 17 U.S.C. 101 (defining
"literary works" as "works . . . expressed in words, numbers,
or other verbal or numerical symbols or indicia, regardless
of the nature of the material objects, such as books,
periodicals, phonorecords, film, tapes, disks, or cards, in
which they are embodied" (emphasis added)); see also H.R.
Rep. No. 1476, 94th Cong., 2d Sess. 54 (1976), reprinted in
1976 U.S.C.C.A.N. 5659, 5667 ("The term ``literary works' . .
. includes computer data bases, and computer programs to the
extent that they incorporate authorship in the programmer's
expression of original ideas, as distinguished from the ideas
themselves.").
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copyright-infringement cases, for copyright infringement
generally turns on whether the defendant has copied protected
expression as a factual matter. Because of this different
posture, most copyright-infringement cases provide only
limited help to us in deciding this appeal. This is true
even with respect to those copyright-infringement cases that
deal with computers and computer software.
B. Matter of First Impression
Whether a computer menu command hierarchy
constitutes copyrightable subject matter is a matter of first
impression in this court. While some other courts appear to
have touched on it briefly in dicta, see, e.g., Autoskill,
Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476,
1495 n.23 (10th Cir.), cert. denied, 114 S. Ct. 307 (1993),
we know of no cases that deal with the copyrightability of a
menu command hierarchy standing on its own (i.e., without
other elements of the user interface, such as screen
displays, in issue). Thus we are navigating in uncharted
waters.
Borland vigorously argues, however, that the
Supreme Court charted our course more than 100 years ago when
it decided Baker v. Selden, 101 U.S. 99 (1879). In Baker v.
Selden, the Court held that Selden's copyright over the
textbook in which he explained his new way to do accounting
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did not grant him a monopoly on the use of his accounting
system.6 Borland argues:
The facts of Baker v. Selden, and even
the arguments advanced by the parties in
that case, are identical to those in this
case. The only difference is that the
"user interface" of Selden's system was
implemented by pen and paper rather than
by computer.
To demonstrate that Baker v. Selden and this appeal both
involve accounting systems, Borland even supplied this court
with a video that, with special effects, shows Selden's paper
forms "melting" into a computer screen and transforming into
Lotus 1-2-3.
We do not think that Baker v. Selden is nearly as
analogous to this appeal as Borland claims. Of course, Lotus
1-2-3 is a computer spreadsheet, and as such its grid of
horizontal rows and vertical columns certainly resembles an
accounting ledger or any other paper spreadsheet. Those
grids, however, are not at issue in this appeal for, unlike
Selden, Lotus does not claim to have a monopoly over its
accounting system. Rather, this appeal involves Lotus's
monopoly over the commands it uses to operate the computer.
Accordingly, this appeal is not, as Borland contends,
"identical" to Baker v. Selden.
C. Altai
6. Selden's system of double-entry bookkeeping is the now
almost-universal T-accounts system.
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Before we analyze whether the Lotus menu command
hierarchy is a system, method of operation, process, or
procedure, we first consider the applicability of the test
the Second Circuit set forth in Computer Assoc. Int'l, Inc.
v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).7 The Second
Circuit designed its Altai test to deal with the fact that
computer programs, copyrighted as "literary works," can be
infringed by what is known as "nonliteral" copying, which is
copying that is paraphrased or loosely paraphrased rather
than word for word. See id. at 701 (citing nonliteral-
copying cases); see also 3 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 13.03[A][1] (1993). When faced with
nonliteral-copying cases, courts must determine whether
similarities are due merely to the fact that the two works
share the same underlying idea or whether they instead
indicate that the second author copied the first author's
expression. The Second Circuit designed its Altai test to
deal with this situation in the computer context,
specifically with whether one computer program copied
nonliteral expression from another program's code.
7. We consider the Altai test because both parties and many
of the amici focus on it so heavily. Borland, in particular,
is highly critical of the district court for not employing
the Altai test. Borland does not, however, indicate how
using that test would have been dispositive in Borland's
favor. Interestingly, Borland appears to contradict its own
reasoning at times by criticizing the applicability of the
Altai test.
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The Altai test involves three steps: abstraction,
filtration, and comparison. The abstraction step requires
courts to "dissect the allegedly copied program's structure
and isolate each level of abstraction contained within it."
Altai, 982 F.2d at 707. This step enables courts to identify
the appropriate framework within which to separate
protectable expression from unprotected ideas. Second,
courts apply a "filtration" step in which they examine "the
structural components at each level of abstraction to
determine whether their particular inclusion at that level
was ``idea' or was dictated by considerations of efficiency,
so as to be necessarily incidental to that idea; required by
factors external to the program itself; or taken from the
public domain." Id. Finally, courts compare the protected
elements of the infringed work (i.e., those that survived the
filtration screening) to the corresponding elements of the
allegedly infringing work to determine whether there was
sufficient copying of protected material to constitute
infringement. Id. at 710.
In the instant appeal, we are not confronted with
alleged nonliteral copying of computer code. Rather, we are
faced with Borland's deliberate, literal copying of the Lotus
menu command hierarchy. Thus, we must determine not whether
nonliteral copying occurred in some amorphous sense, but
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rather whether the literal copying of the Lotus menu command
hierarchy constitutes copyright infringement.
While the Altai test may provide a useful framework
for assessing the alleged nonliteral copying of computer
code, we find it to be of little help in assessing whether
the literal copying of a menu command hierarchy constitutes
copyright infringement. In fact, we think that the Altai
test in this context may actually be misleading because, in
instructing courts to abstract the various levels, it seems
to encourage them to find a base level that includes
copyrightable subject matter that, if literally copied, would
make the copier liable for copyright infringement.8 While
that base (or literal) level would not be at issue in a
nonliteral-copying case like Altai, it is precisely what is
at issue in this appeal. We think that abstracting menu
command hierarchies down to their individual word and menu
levels and then filtering idea from expression at that stage,
as both the Altai and the district court tests require,
obscures the more fundamental question of whether a menu
command hierarchy can be copyrighted at all. The initial
8. We recognize that Altai never states that every work
contains a copyrightable "nugget" of protectable expression.
Nonetheless, the implication is that for literal copying, "it
is not necessary to determine the level of abstraction at
which similarity ceases to consist of an ``expression of
ideas,' because literal similarity by definition is always a
similarity as to the expression of ideas." 3 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright 13.03[A](2)
(1993).
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inquiry should not be whether individual components of a menu
command hierarchy are expressive, but rather whether the menu
command hierarchy as a whole can be copyrighted. But see
Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823(10th Cir. 1993) (endorsing Altai's abstraction-filtration-
comparison test as a way of determining whether "menus and
sorting criteria" are copyrightable).
D. The Lotus Menu Command Hierarchy: A "Method of
Operation"
Borland argues that the Lotus menu command
hierarchy is uncopyrightable because it is a system, method
of operation, process, or procedure foreclosed from copyright
protection by 17 U.S.C. 102(b). Section 102(b) states:
"In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such work." Because we conclude
that the Lotus menu command hierarchy is a method of
operation, we do not consider whether it could also be a
system, process, or procedure.
We think that "method of operation," as that term
is used in 102(b), refers to the means by which a person
operates something, whether it be a car, a food processor, or
a computer. Thus a text describing how to operate something
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would not extend copyright protection to the method of
operation itself; other people would be free to employ that
method and to describe it in their own words. Similarly, if
a new method of operation is used rather than described,
other people would still be free to employ or describe that
method.
We hold that the Lotus menu command hierarchy is an
uncopyrightable "method of operation." The Lotus menu
command hierarchy provides the means by which users control
and operate Lotus 1-2-3. If users wish to copy material, for
example, they use the "Copy" command. If users wish to print
material, they use the "Print" command. Users must use the
command terms to tell the computer what to do. Without the
menu command hierarchy, users would not be able to access and
control, or indeed make use of, Lotus 1-2-3's functional
capabilities.
The Lotus menu command hierarchy does not merely
explain and present Lotus 1-2-3's functional capabilities to
the user; it also serves as the method by which the program
is operated and controlled. The Lotus menu command hierarchy
is different from the Lotus long prompts, for the long
prompts are not necessary to the operation of the program;
users could operate Lotus 1-2-3 even if there were no long
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prompts.9 The Lotus menu command hierarchy is also
different from the Lotus screen displays, for users need not
"use" any expressive aspects of the screen displays in order
to operate Lotus 1-2-3; because the way the screens look has
little bearing on how users control the program, the screen
displays are not part of Lotus 1-2-3's "method of
operation."10 The Lotus menu command hierarchy is also
different from the underlying computer code, because while
code is necessary for the program to work, its precise
formulation is not. In other words, to offer the same
capabilities as Lotus 1-2-3, Borland did not have to copy
Lotus's underlying code (and indeed it did not); to allow
users to operate its programs in substantially the same way,
however, Borland had to copy the Lotus menu command
hierarchy. Thus the Lotus 1-2-3 code is not a
uncopyrightable "method of operation."11
9. As the Lotus long prompts are not before us on appeal, we
take no position on their copyrightability, although we do
note that a strong argument could be made that the brief
explanations they provide "merge" with the underlying idea of
explaining such functions. See Morrissey v. Procter & Gamble
Co., 379 F.2d 675, 678-79 (1st Cir. 1967) (when the possible
ways to express an idea are limited, the expression "merges"
with the idea and is therefore uncopyrightable; when merger
occurs, identical copying is permitted).
10. As they are not before us on appeal, we take no position
on whether the Lotus 1-2-3 screen displays constitute
original expression capable of being copyrighted.
11. Because the Lotus 1-2-3 code is not before us on appeal,
we take no position on whether it is copyrightable. We note,
however, that original computer codes generally are protected
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The district court held that the Lotus menu command
hierarchy, with its specific choice and arrangement of
command terms, constituted an "expression" of the "idea" of
operating a computer program with commands arranged
hierarchically into menus and submenus. Borland II, 799 F.
Supp. at 216. Under the district court's reasoning, Lotus's
decision to employ hierarchically arranged command terms to
operate its program could not foreclose its competitors from
also employing hierarchically arranged command terms to
operate their programs, but it did foreclose them from
employing the specific command terms and arrangement that
Lotus had used. In effect, the district court limited Lotus
1-2-3's "method of operation" to an abstraction.
Accepting the district court's finding that the
Lotus developers made some expressive choices in choosing and
arranging the Lotus command terms, we nonetheless hold that
that expression is not copyrightable because it is part of
Lotus 1-2-3's "method of operation." We do not think that
"methods of operation" are limited to abstractions; rather,
they are the means by which a user operates something. If
specific words are essential to operating something, then
they are part of a "method of operation" and, as such, are
by copyright. See, e.g., Altai, 982 F.2d at 702 ("It is now
well settled that the literal elements of computer programs,
i.e., their source and object codes, are the subject of
copyright protection.") (citing cases).
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unprotectable. This is so whether they must be highlighted,
typed in, or even spoken, as computer programs no doubt will
soon be controlled by spoken words.
The fact that Lotus developers could have designed
the Lotus menu command hierarchy differently is immaterial to
the question of whether it is a "method of operation." In
other words, our initial inquiry is not whether the Lotus
menu command hierarchy incorporates any expression.12
Rather, our initial inquiry is whether the Lotus menu command
hierarchy is a "method of operation." Concluding, as we do,
that users operate Lotus 1-2-3 by using the Lotus menu
command hierarchy, and that the entire Lotus menu command
hierarchy is essential to operating Lotus 1-2-3, we do not
inquire further whether that method of operation could have
been designed differently. The "expressive" choices of what
to name the command terms and how to arrange them do not
magically change the uncopyrightable menu command hierarchy
into copyrightable subject matter.
Our holding that "methods of operation" are not
limited to mere abstractions is bolstered by Baker v. Selden.
In Baker, the Supreme Court explained that
the teachings of science and the rules
and methods of useful art have their
final end in application and use; and
this application and use are what the
12. We think that the Altai test would contemplate this
being the initial inquiry.
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public derive from the publication of a
book which teaches them. . . . The
description of the art in a book, though
entitled to the benefit of copyright,
lays no foundation for an exclusive claim
to the art itself. The object of the one
is explanation; the object of the other
is use. The former may be secured by
copyright. The latter can only be
secured, if it can be secured at all, by
letters-patent.
Baker v. Selden, 101 U.S. at 104-05. Lotus wrote its menu
command hierarchy so that people could learn it and use it.
Accordingly, it falls squarely within the prohibition on
copyright protection established in Baker v. Selden and
codified by Congress in 102(b).
In many ways, the Lotus menu command hierarchy is
like the buttons used to control, say, a video cassette
recorder ("VCR"). A VCR is a machine that enables one to
watch and record video tapes. Users operate VCRs by pressing
a series of buttons that are typically labelled "Record,
Play, Reverse, Fast Forward, Pause, Stop/Eject." That the
buttons are arranged and labeled does not make them a
"literary work," nor does it make them an "expression" of the
abstract "method of operating" a VCR via a set of labeled
buttons. Instead, the buttons are themselves the "method of
operating" the VCR.
When a Lotus 1-2-3 user chooses a command, either
by highlighting it on the screen or by typing its first
letter, he or she effectively pushes a button. Highlighting
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the "Print" command on the screen, or typing the letter "P,"
is analogous to pressing a VCR button labeled "Play."
Just as one could not operate a buttonless VCR, it
would be impossible to operate Lotus 1-2-3 without employing
its menu command hierarchy. Thus the Lotus command terms are
not equivalent to the labels on the VCR's buttons, but are
instead equivalent to the buttons themselves. Unlike the
labels on a VCR's buttons, which merely make operating a VCR
easier by indicating the buttons' functions, the Lotus menu
commands are essential to operating Lotus 1-2-3. Without the
menu commands, there would be no way to "push" the Lotus
buttons, as one could push unlabeled VCR buttons. While
Lotus could probably have designed a user interface for which
the command terms were mere labels, it did not do so here.
Lotus 1-2-3 depends for its operation on use of the precise
command terms that make up the Lotus menu command hierarchy.
One might argue that the buttons for operating a
VCR are not analogous to the commands for operating a
computer program because VCRs are not copyrightable, whereas
computer programs are. VCRs may not be copyrighted because
they do not fit within any of the 102(a) categories of
copyrightable works; the closest they come is "sculptural
work." Sculptural works, however, are subject to a "useful-
article" exception whereby "the design of a useful article .
. . shall be considered a pictorial, graphic, or sculptural
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work only if, and only to the extent that, such design
incorporates pictorial, graphic, or sculptural features that
can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the
article." 17 U.S.C. 101. A "useful article" is "an
article having an intrinsic utilitarian function that is not
merely to portray the appearance of the article or to convey
information." Id. Whatever expression there may be in the
arrangement of the parts of a VCR is not capable of existing
separately from the VCR itself, so an ordinary VCR would not
be copyrightable.
Computer programs, unlike VCRs, are copyrightable
as "literary works." 17 U.S.C. 102(a). Accordingly, one
might argue, the "buttons" used to operate a computer program
are not like the buttons used to operate a VCR, for they are
not subject to a useful-article exception. The response, of
course, is that the arrangement of buttons on a VCR would not
be copyrightable even without a useful-article exception,
because the buttons are an uncopyrightable "method of
operation." Similarly, the "buttons" of a computer program
are also an uncopyrightable "method of operation."
That the Lotus menu command hierarchy is a "method
of operation" becomes clearer when one considers program
compatibility. Under Lotus's theory, if a user uses several
different programs, he or she must learn how to perform the
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same operation in a different way for each program used. For
example, if the user wanted the computer to print material,
then the user would have to learn not just one method of
operating the computer such that it prints, but many
different methods. We find this absurd. The fact that there
may be many different ways to operate a computer program, or
even many different ways to operate a computer program using
a set of hierarchically arranged command terms, does not make
the actual method of operation chosen copyrightable; it still
functions as a method for operating the computer and as such
is uncopyrightable.
Consider also that users employ the Lotus menu
command hierarchy in writing macros. Under the district
court's holding, if the user wrote a macro to shorten the
time needed to perform a certain operation in Lotus 1-2-3,
the user would be unable to use that macro to shorten the
time needed to perform that same operation in another
program. Rather, the user would have to rewrite his or her
macro using that other program's menu command hierarchy.
This is despite the fact that the macro is clearly the user's
own work product. We think that forcing the user to cause
the computer to perform the same operation in a different way
ignores Congress's direction in 102(b) that "methods of
operation" are not copyrightable. That programs can offer
users the ability to write macros in many different ways does
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not change the fact that, once written, the macro allows the
user to perform an operation automatically. As the Lotus
menu command hierarchy serves as the basis for Lotus 1-2-3
macros, the Lotus menu command hierarchy is a "method of
operation."
In holding that expression that is part of a
"method of operation" cannot be copyrighted, we do not
understand ourselves to go against the Supreme Court's
holding in Feist. In Feist, the Court explained:
The primary objective of copyright is not
to reward the labor of authors, but to
promote the Progress of Science and
useful Arts. To this end, copyright
assures authors the right to their
original expression, but encourages
others to build freely upon the ideas and
information conveyed by a work.
Feist, 499 U.S. at 349-50 (quotations and citations omitted).
We do not think that the Court's statement that "copyright
assures authors the right to their original expression"
indicates that all expression is necessarily copyrightable;
while original expression is necessary for copyright
protection, we do not think that it is alone sufficient.
Courts must still inquire whether original expression falls
within one of the categories foreclosed from copyright
protection by 102(b), such as being a "method of
operation."
We also note that in most contexts, there is no
need to "build" upon other people's expression, for the ideas
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conveyed by that expression can be conveyed by someone else
without copying the first author's expression.13 In the
context of methods of operation, however, "building" requires
the use of the precise method of operation already employed;
otherwise, "building" would require dismantling, too.
Original developers are not the only people entitled to build
on the methods of operation they create; anyone can. Thus,
Borland may build on the method of operation that Lotus
designed and may use the Lotus menu command hierarchy in
doing so.
Our holding that methods of operation are not
limited to abstractions goes against Autoskill, 994 F.2d at
1495 n.23, in which the Tenth Circuit rejected the
defendant's argument that the keying procedure used in a
computer program was an uncopyrightable "procedure" or
"method of operation" under 102(b). The program at issue,
which was designed to test and train students with reading
deficiencies, id. at 1481, required students to select
responses to the program's queries "by pressing the 1, 2, or
3 keys." Id. at 1495 n.23. The Tenth Circuit held that,
"for purposes of the preliminary injunction, . . . the record
showed that [this] keying procedure reflected at least a
minimal degree of creativity," as required by Feist for
13. When there are a limited number of ways to express an
idea, however, the expression "merges" with the idea and
becomes uncopyrightable. Morrissey, 379 F.2d at 678-79.
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copyright protection. Id. As an initial matter, we question
whether a programmer's decision to have users select a
response by pressing the 1, 2, or 3 keys is original. More
importantly, however, we fail to see how "a student
select[ing] a response by pressing the 1, 2, or 3 keys," id.,can be anything but an unprotectable method of operation.14
III.
III.
Conclusion
Conclusion
Because we hold that the Lotus menu command
hierarchy is uncopyrightable subject matter, we further hold
that Borland did not infringe Lotus's copyright by copying
it. Accordingly, we need not consider any of Borland's
affirmative defenses. The judgment of the district court is
Reversed.
Concurrence
follows.
14. The Ninth Circuit has also indicated in dicta that
"menus, and keystrokes" may be copyrightable. Brown Bag
Software v. Symantec Corp., 960 F.2d 1465, 1477 (9th Cir.),
cert. denied, BB Asset Management, Inc. v. Symantec Corp.,
113 S. Ct. 198 (1992). In that case, however, the plaintiff
did not show that the defendant had copied the plaintiff's
menus or keystrokes, so the court was not directly faced with
whether the menus or keystrokes constituted an unprotectable
method of operation. Id.-32-
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BOUDIN, Circuit Judge, concurring. The importance of
this case, and a slightly different emphasis in my view of
the underlying problem, prompt me to add a few words to the
majority's tightly focused discussion.
I.
Most of the law of copyright and the "tools" of analysis
have developed in the context of literary works such as
novels, plays, and films. In this milieu, the principal
problem--simply stated, if difficult to resolve--is to
stimulate creative expression without unduly limiting access
by others to the broader themes and concepts deployed by the
author. The middle of the spectrum presents close cases; but
a "mistake" in providing too much protection involves a small
cost: subsequent authors treating the same themes must take
a few more steps away from the original expression.
The problem presented by computer programs is
fundamentally different in one respect. The computer program
is a means for causing something to happen; it has a
mechanical utility, an instrumental role, in accomplishing
the world's work. Granting protection, in other words, can
have some of the consequences of patent protection in
limiting other people's ability to perform a task in the most
efficient manner. Utility does not bar copyright
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(dictionaries may be copyrighted), but it alters the
calculus.
Of course, the argument for protection is undiminished,
perhaps even enhanced, by utility: if we want more of an
intellectual product, a temporary monopoly for the creator
provides incentives for others to create other, different
items in this class. But the "cost" side of the equation may
be different where one places a very high value on public
access to a useful innovation that may be the most efficient
means of performing a given task. Thus, the argument for
extending protection may be the same; but the stakes on the
other side are much higher.
It is no accident that patent protection has
preconditions that copyright protection does not--notably,
the requirements of novelty and non-obviousness--and that
patents are granted for a shorter period than copyrights.
This problem of utility has sometimes manifested itself in
copyright cases, such as Baker v. Selden, 101 U.S. 99 (1879),
and been dealt with through various formulations that limit
copyright or create limited rights to copy. But the case law
and doctrine addressed to utility in copyright have been
brief detours in the general march of copyright law.
Requests for the protection of computer menus present
the concern with fencing off access to the commons in an
acute form. A new menu may be a creative work, but over time
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its importance may come to reside more in the investment that
has been made by users in learning the menu and in building
their own mini-programs--macros--in reliance upon the menu.
Better typewriter keyboard layouts may exist, but the
familiar QWERTY keyboard dominates the market because that is
what everyone has learned to use. See P. David, CLIO and the
Economics of QWERTY, 75 Am. Econ. Rev. 332 (1985). The
QWERTY keyboard is nothing other than a menu of letters.
Thus, to assume that computer programs are just one more
new means of expression, like a filmed play, may be quite
wrong. The "form"--the written source code or the menu
structure depicted on the screen--look hauntingly like the
familiar stuff of copyright; but the "substance" probably has
more to do with problems presented in patent law or, as
already noted, in those rare cases where copyright law has
confronted industrially useful expressions. Applying
copyright law to computer programs is like assembling a
jigsaw puzzle whose pieces do not quite fit.
All of this would make no difference if Congress had
squarely confronted the issue, and given explicit directions
as to what should be done. The Copyright Act of 1976 took a
different course. While Congress said that computer programs
might be subject to copyright protection, it said this in
very general terms; and, especially in 102(b), Congress
adopted a string of exclusions that if taken literally might
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easily seem to exclude most computer programs from
protection. The only detailed prescriptions for computers
involve narrow issues (like back-up copies) of no relevance
here.
Of course, one could still read the statute as a
congressional command that the familiar doctrines of
copyright law be taken and applied to computer programs, in
cookie cutter fashion, as if the programs were novels or play
scripts. Some of the cases involving computer programs
embody this approach. It seems to me mistaken on two
different grounds: the tradition of copyright law, and the
likely intent of Congress.
The broad-brush conception of copyright protection, the
time limits, and the formalities have long been prescribed by
statute. But the heart of copyright doctrine--what may be
protected and with what limitations and exceptions--has been
developed by the courts through experience with individual
cases. B. Kaplan, An Unhurried View of Copyright 40 (1967).
Occasionally Congress addresses a problem in detail. For the
most part the interstitial development of copyright through
the courts is our tradition.
Nothing in the language or legislative history of the
1976 Act, or at least nothing brought to our attention,
suggests that Congress meant the courts to abandon this case-
by-case approach. Indeed, by setting up 102(b) as a
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counterpoint theme, Congress has arguably recognized the
tension and left it for the courts to resolve through the
development of case law. And case law development is
adaptive: it allows new problems to be solved with help of
earlier doctrine, but it does not preclude new doctrines to
meet new situations.
II.
In this case, the raw facts are mostly, if not entirely,
undisputed. Although the inferences to be drawn may be more
debatable, it is very hard to see that Borland has shown any
interest in the Lotus menu except as a fall-back option for
those users already committed to it by prior experience or in
order to run their own macros using 1-2-3 commands. At least
for the amateur, accessing the Lotus menu in the Borland
Quattro or Quattro Pro program takes some effort.
Put differently, it is unlikely that users who value the
Lotus menu for its own sake--independent of any investment
they have made themselves in learning Lotus' commands or
creating macros dependent upon them--would choose the Borland
program in order to secure access to the Lotus menu.
Borland's success is due primarily to other features. Its
rationale for deploying the Lotus menu bears the ring of
truth.
Now, any use of the Lotus menu by Borland is a
commercial use and deprives Lotus of a portion of its
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"reward," in the sense that an infringement claim if allowed
would increase Lotus' profits. But this is circular
reasoning: broadly speaking, every limitation on copyright or
privileged use diminishes the reward of the original creator.
Yet not every writing is copyrightable or every use an
infringement. The provision of reward is one concern of
copyright law, but it is not the only one. If it were,
copyrights would be perpetual and there would be no
exceptions.
The present case is an unattractive one for copyright
protection of the menu. The menu commands (e.g., "print,"
"quit") are largely for standard procedures that Lotus did
not invent and are common words that Lotus cannot monopolize.
What is left is the particular combination and sub-grouping
of commands in a pattern devised by Lotus. This arrangement
may have a more appealing logic and ease of use than some
other configurations; but there is a certain arbitrariness to
many of the choices.
If Lotus is granted a monopoly on this pattern, users
who have learned the command structure of Lotus 1-2-3 or
devised their own macros are locked into Lotus, just as a
typist who has learned the QWERTY keyboard would be the
captive of anyone who had a monopoly on the production of
such a keyboard. Apparently, for a period Lotus 1-2-3 has
had such sway in the market that it has represented the de
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facto standard for electronic spreadsheet commands. So long
as Lotus is the superior spreadsheet--either in quality or in
price--there may be nothing wrong with this advantage.
But if a better spreadsheet comes along, it is hard to
see why customers who have learned the Lotus menu and devised
macros for it should remain captives of Lotus because of an
investment in learning made by the users and not by Lotus.
Lotus has already reaped a substantial reward for being
first; assuming that the Borland program is now better, good
reasons exist for freeing it to attract old Lotus customers:
to enable the old customers to take advantage of a new
advance, and to reward Borland in turn for making a better
product. If Borland has not made a better product, then
customers will remain with Lotus anyway.
Thus, for me the question is not whether Borland should
prevail but on what basis. Various avenues might be
traveled, but the main choices are between holding that the
menu is not protectable by copyright and devising a new
doctrine that Borland's use is privileged. No solution is
perfect and no intermediate appellate court can make the
final choice.
To call the menu a "method of operation" is, in the
common use of those words, a defensible position. After all,
the purpose of the menu is not to be admired as a work of
literary or pictorial art. It is to transmit directions from
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the user to the computer, i.e., to operate the computer. The
menu is also a "method" in the dictionary sense because it is
a "planned way of doing something," an "order or system," and
(aptly here) an "orderly or systematic arrangement, sequence
or the like." Random House Webster's College Dictionary 853
(1991).
A different approach would be to say that Borland's use
is privileged because, in the context already described, it
is not seeking to appropriate the advances made by Lotus'
menu; rather, having provided an arguably more attractive
menu of its own, Borland is merely trying to give former
Lotus users an option to exploit their own prior investment
in learning or in macros. The difference is that such a
privileged use approach would not automatically protect
Borland if it had simply copied the Lotus menu (using
different codes), contributed nothing of its own, and resold
Lotus under the Borland label.
The closest analogue in conventional copyright is the
fair use doctrine. E.g., Harper & Row, Publishers, Inc. v.
Nation Enters., 471 U.S. 539 (1985). Although invoked by
Borland, it has largely been brushed aside in this case
because the Supreme Court has said that it is "presumptively"
unavailable where the use is a "commercial" one. See id. at
562. But see Campbell v. Acuff-Rose Music, Inc., 114 S. Ct.
1164, 1174 (1994). In my view, this is something less than a
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definitive answer; "presumptively" does not mean "always"
and, in any event, the doctrine of fair use was created by
the courts and can be adapted to new purposes.
But a privileged use doctrine would certainly involve
problems of its own. It might more closely tailor the limits
on copyright protection to the reasons for limiting that
protection; but it would entail a host of administrative
problems that would cause cost and delay, and would also
reduce the ability of the industry to predict outcomes.
Indeed, to the extent that Lotus' menu is an important
standard in the industry, it might be argued that any use
ought to be deemed privileged.
In sum, the majority's result persuades me and its
formulation is as good, if not better, than any other that
occurs to me now as within the reach of courts. Some
solutions (e.g., a very short copyright period for menus) are
not options at all for courts but might be for Congress. In
all events, the choices are important ones of policy, not
linguistics, and they should be made with the underlying
considerations in view.
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