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RE: [dvd-discuss]Lexmark Decision

This discussion is getting off the mark, isn't it?
It isn't the Lexmark _language_ that was copyrighted,
but a program (supposedly) written in that language, no?

-Richard M. Hartman

186,000 mi/sec: not just a good idea, it's the LAW!

> -----Original Message-----
> From: Arnold G. Reinhold [mailto:reinhold@world.std.com]
> Sent: Tuesday, March 25, 2003 8:12 AM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: Re: [dvd-discuss]Lexmark Decision
> 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