The user selected an entry in a menu which performed an operation or displayed another menu of selections for the user to make. Lotus 1-2-3 also allowed the user to write macros that automatically executed a series of desired menu commands (as well as other types of operations) when the user pressed a single keystroke combination.
Borland sold the Quattro and Quattro Pro programs to compete with Lotus, and claimed that they were superior to the Lotus 1-2- 3 program. While the Borland programs had a much different menu tree structure, users familiar with Lotus 1-2-3 could switch without having to learn a whole new set of commands using the Borland-supplied alternate menu tree called the "Lotus Emulation Interface." Borland also supplied a "Key Reader" to read and execute the Lotus macros, thus also allowing Lotus users to run macros without having to rewrite them. In combination, the court found that the Borland programs provided "a virtually identical copy of the entire 1-2-3 menu tree."
Litigation Ensued For Almost Five Years On June 28, 1990, Lotus procured a ruling against Paperback Software International from a Massachusetts federal district court holding 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 by copyright law (Lotus Development Corp. v. Paperback Software International, 740 F. Supp. 37, 68, 70 (D. Mass. 1990)). Just four days later, Lotus sued Borland in the same court, alleging that the "Lotus Emulation Interface" infringed its copyright.
The trial court ruled against Borland on July 31, 1992. Borland removed the interface, but continued to provide the Key Reader. Lotus then amended its complaint to allege that the Key Reader also violated its copyright. The district court again agreed with Lotus, requiring Borland to remove the Key Reader as well.
In each instance, the district court followed a traditional analysis. It determined whether the elements which Borland had copied were a "form of expression," which traditionally had been recognized as entitled to copyright protection, or the underlying "ideas," which traditionally had been denied copyright protection. In resolving this question in favor of Lotus, the district court concluded that there were numerous satisfactory ways for Borland to have named and organized its commands, other than to have copied from Lotus. In accordance with a long line of precedent, the presence of these numerous viable alternatives led the district court to conclude that protectable expression had been copied, not merely unprotectable ideas.
While in these "unchartered waters," the court accepted "the district court's finding that the Lotus developers made some expressive choices in choosing and arranging the Lotus Command terms." Nevertheless, the court did not follow the long line of cases which found copying of expression to constitute a key indication of actionable infringement. In fact, the court stated that the presence of such expressive content is "immaterial."
Instead, the court said that the copyright statute expressly prohibited protection for a "method of operation." It then concluded that the menu tree was such a method because it merely contained "specific words...essential to operating something" and because "the entire Lotus menu command hierarchy is essential to operating Lotus 1-2-3."
A concurring judge offered a somewhat different rationale than "the majority's tightly focused discussion." "[T]he principal problem...is to stimulate creative expression," he said. Normally, providing exclusive rights in works of authorship promotes this goal by providing an inducement to create innovative works. In this case, however, the judge concluded that exactly the opposite would occur. Unless Borland was permitted to imitate the Lotus interface, the court reasoned, its incentive to improve the spreadsheet program would be reduced. Many users would simply not buy it because they could not utilize the operational habits they had learned. "[T]he question is not whether Borland should prevail," the court said, "but on what basis." It then concluded that "the majority's...formulation [of a rationale for Borland to lose] is as good, if not better, than any other...."
The decision also seems to open the door to any copying which is done to ensure compatibility. Up until now, this type of copying involved significant risk.
All User-Interface Features Are Not Necessarily Available
The interface between the "engine" of a program and the user of the program typically consists of many elements, not merely a menu tree. For example, it includes screens, a flow of operations, and help prompts. It might be a big mistake to interpret this decision as paving the way to freely copy all of these other elements.
On the other hand, if the underlying rationale for this decision becomes the test for copyright infringement--whether copying of a feature is necessary to enable use of a new program without forcing the user to relearn already-established operating habits--all user-interface elements may become unprotectable.
There are many reasons why other judges may view this case differently, as did the trial judge.
Many may not agree that removal of copyright protection from menu trees will further innovation. Menu trees are an important part of most computer programs. Why would a company spend a great deal of time and money developing a good one if anyone else could copy it for free?
The decision is also based on a statutory exclusion--a "method of operation"--which has rarely been applied to a computer program. As conceded by the court itself, it is also somewhat inconsistent with other decisions in its conclusion that copying of "expression"--which previously had been almost universally a signpost of copyright infringement--is "immaterial." The rationale offered by the court for not protecting the menu tree seems to also squarely fit source code. "The fact that there may be many different ways to operate a computer program," the majority said, "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." It is hard to see how this description of an unprotectable "method of operation" does not also embrace source code. Yet, there are few today who would claim that source code could lawfully be copied.
The concurring judge invitingly noted that "no intermediate appellate court can make the final choice." During the next months, we are all likely to know whether the choice made by the Boston appellate court becomes the law of our land.