From: adam@soda.berkeley.edu (Adam J Richter)
Newsgroups: gnu.misc.discuss
Subject: Re: [misc.int-property] Re: Apple loses "look and feel" lawsuit
Date: 13 Aug 92 10:07:36 GMT
Organization: University of California, Berkeley
NNTP-Posting-Host: soda.berkeley.edu

In article <FRIEDMAN.92Aug10221458@nutrimat.gnu.ai.mit.edu> friedman@gnu.ai.mit.edu (Noah Friedman) writes:
>   The Apple vs. Microsoft case doesn't really resolve any questions about
>user interface copyrights because the main reason Microsoft got off
>completely was that they had already licensed certain parts from Apple.

	I don't think that that is an accurate summary of the August
7th decision.  (For copies of the decision, contact the US District
Court in San Francisco.)  As far as I know and can determine, the
judge never ruled that anything that Microsoft did would have been
copyright infringement were it not for Microsoft's agreement with Apple.

	I'm not a lawyer and this is not legal advice, but the decision
looks to me to be a victory for the League for Programming Freedom
(and for the public).  The judge explicitly rejected the idea of
applying a "look and feel" test to software user interfaces, and used
the analogy that Stallman likes to use, comparing the user interface of
a program to the user interface of a car:

|  	The elements of such an arrangement serve a purely
|   functional purpose in the same way that the visual displays and
|   user commands of the dashboard, steering wheel, gear shift,
|   brakes, clutch and accelerator serve as the user interface of an
|   automobile.  See _Synercom Technology, Inc. v University Computing
|   Co._, 462 FSupp 1003, 1013 (NDTex 1978).  Purely functional items
|   or an arrangement of them for functional purposes are wholly
|   beyond the realm of copyright as are other common examples of user
|   interfaces or arrangement of their individual elements--the
|   dials, knobs and remote control devices of a television or VCT,
|   or the buttons and clocks of an oven or stove.  Of course, the
|   elements of these everyday user interfaces are seldom conflated
|   into metaphoric images, but that does not mean that the user
|   interface of a computer is less functional.
	(pages 21-22)

	Also of interest was the judge's rejection of an underlying
principle from the precedents led to the user interface copyright
lawsuits:

| 	To be sure, a few judges have said in relation to
| computer software that "the purpose or function of a utilitarian
| work would be the work's idea, and everything that is not
| necessary to the purpose or function would be part of the
| expression of the idea." See, e.g., _Whelan Associates v Jaslow
| Dental Laboratory_, 797 F2d 1222, 1236 (3d Cir 1986); _Broderbund
| Software, Inc. v Unison World, 648 FSupp 1127 (ND Cal 1986);
| _Digital Communications v Softklone Distributing_, 649 FSupp 449,
| 462 (NDGa 1987).  But this surely is too facile a distinction as
| it obscures rather than illuminates the first part of the analysis
| commanded by the Ninth circuit, comparing the similarities of
| ideas.
	(page 24.  The judge goes on to attack the quotation more.)

	The judge also talks about the negative economic effects of
having overly broad copyrights.  Citing Pamela Samuelson's
_Communications of the ACM_ article and _Nimmer on Copyright_ in
a footnote, the judge described "total concept and feel" and
"look and feel" as "controversial" and "soundly criticized."
The Judge also cited an article in the University of Pittsburgh
Law Review, which I suspect may also have been by Professor Samuleson.

	The judge did seem to allow for the artistic parts of a
user interface to be copyrighted (e.g., a particular icon).
Even there many of the Macintosh icons were ruled to be not covered
by copyright because they were commonly used images in graphical
user interfaces, such as the folder for a directory (the judge
cited the "scenes a faire" copyright doctrine).  Most of what could
be copyrighted, the judge declared could only be enforced against
"virtually identical copying" because of a doctrine called "merger"
("if, in describing how a work is expressed, the description
differs little from a simple description fo what the work is")
or because of a "limited number of ways" to express an idea.

	As far as I recall, the judge didn't get into the question
of whether or not compatibility is purely a type of functionality.
If it is, then I imagine that it might be okay to create substantially
similar artwork to emulate another program (e.g., to use a trash can
rather than a paper shredder to indicate garbage because users are
used to seeing and understanding the semantics of a trash can icon,
thereby making the program easier to learn because its user interface
conforms to a de facto industry standard).

>In
>fact, the Lotus vs. Borland case seems to be setting the precedent that
>user interface copyrights are very legal, so Apple is still a threat to
>programming freedom.

	(Again, I am not a lawyer and this is not legal advice.)

	It is my understanding that Lotus v. Borland was the same judge
deciding the same question (i.e., is it copyright infringement to
duplicate the Lotus 123 menus and commands?).  I recall reading in
the newspaper that the copyright offices submitted an amicus curae
("friend of the court") brief in the case saying that the Lotus 123
commands and menus should not be copyrightable, and that a group of
eminent copyright law professors submitted a similar amicus curae
brief along the same lines.  I also recall reading a paper, "Reverse
Engineering and the Computer Industry: A Battle Between Legal and
Economic Principles" by G. Gervaise Davis, in which Davis mentioned
that the supreme court tends to take its positions on intellectual
property from the 9th circuit.  Apple v. Microsoft was decided in
a federal court in California, which is in the 9th circuit.  Finally,
Steve Cook (Paperback Software president) once told me that the judge
in Lotus v. Paperback was chosen because he knew a lot about insurance
disputes and there was an insurance dispute about Paperback's legal
costs.  For all of these reason, I think that the Apple decision is
likely to stand, and I'd even venture to guess that the Lotus decision
will be overturned.  

	In summary, the Apple v. Microsoft decision seems to me to be
a significant victory for the League for Programming Freedom (and
for the public).  The user interface copyright battle may not be
over, but the tide has been turned.

-- 
Adam J. Richter				409 Evelyn Avenue, Apt. 312
richter@cerf.net			Albany, CA 94706
					(510)528-3209
Another member of the League for Programming Freedom (league@prep.ai.mit.edu).
Newsgroups: gnu.misc.discuss