Re: [dvd-discuss]Lexmark Decision

["Arnold G. Reinhold" <reinhold(at)world.std.com>]

At 9:36 AM -0800 3/24/03, Michael A Rolenz wrote:
>That puzzled me too. I wish one could get copies of the transcript 
>or their code. It's also a problematic one. Can one copyright or 
>patent a language? What unique aspects of it would be copyrightable? 
>The statements "x=x+1" or "x++" are old ones. A language that used 
>either could not claim protection for those statements. If the 
>language is very high level, then one would be asking for protection 
>for a sequence of fairly obvious operations which one could argue do 
>not require any originality or creativity.
...

There is some precedent against copyrighting of computer languages in 
Lotus Dev. Corp. v. Borland Int'l, Inc. Here is a nice summary from a 
subsequent ruing by the first circuit denying Borland attorney fees:

"Background

Lotus 1-2-3 is a spreadsheet computer program that enables users to 
perform various functions and calculations.  In 1987, Borland 
released spreadsheet programs Quattro and Quattro Pro, which competed 
with Lotus 1-2-3 and contained virtually identical copies of the 
1-2-3 menu command hierarchy.  The inclusion of this so-called "menu 
tree" from Lotus 1-2-3 prompted the instant litigation in 1990, the 
substance of which is set forth in our prior opinion. See Lotus Dev. 
Corp. v. Borland Int'l, Inc. , 49 F.3d 807, 810-811 (1st Cir. 1995). 
Here we recite only the facts pertinent to the present appeal.

The hard-fought litigation below resulted in four separate district 
court opinions (Keeton, U.S.D.J.), culminating in the district 
court's conclusion that the 1-2-3 menu tree contained copyrightable 
expression and that Borland had thus infringed Lotus's copyrights in 
Lotus 1-2-3. (1) On March 9, 1995, we reversed, holding as a matter 
of first impression that the 1-2-3 menu command hierarchy was an 
uncopyrightable "method of operation" under 17 U.S.C. § 102(b). See 
49 F.3d at 813-18.  Subsequently, the Supreme Court granted Lotus's 
petition for certiorari but deadlocked on the merits, resulting in an 
affirmance by an equally divided Court. See 516 U.S. 233 (1996)."

From the actual 1995 ruling:

"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
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


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
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. "



Arnold Reinhold