Software - The Great Software Debate: Who Owns an idea {Forbes cover story} Protection of intellectual property rights may have gone too far when creators of computer languages can claim that they own them. It is almost as if someone could copyright the alphabet. Can Las Vegas sue Atlantic City? By Kathleen K. Wiegner and John Heins It was a small item at the Constitutional Convention, thrown in at the suggestion of James Madison of Virginia and Charles Pinckney of South Carolina. Among the briefly enumerated powers of Congress was one to grant limited monopolies to inventors and authors. In 1790 Congress enacted the world's first comprehensive patent and copyright laws. Little noticed at the time, that enactment was a landmark. England had already created a law of patents built around custom rather than formal statute. And it had issued copyrights, originally as a mechanism for censorship. But it was the Americans who saw in these forms of property a natural fit with a free enterprise society. Said Thomas Jefferson, an inventor and the first administrator of the American patent system, "The issue of patents for new discoveries has given a spring to invention beyond my conception." Thus did our founding fathers encourage the Edisons, McCormicks and Bells, songwriters, movie actors and computer programmers. Could they have imagined that entertainment would one day become one of the country's largest export industries? That intellectual property rights would come so far that Woody Allen could successfully claim a legal right not only to his name and his face but even to his very nerdish charm? From this same instinct to protect the fruits of invention came the protection for computer software, currently one of the jewels in our economy, with U.S. companies controlling 60% of a $55 billion world market. But this system of intellectual property, which has created so much wealth, is now straining. Some of the country's best-known computer and software makers have become embroiled in a tangle of lawsuits. Depending on the outcome, the cases could drastically slow the rate of innovation that has kept U.S. companies well ahead of foreign competitors. Ashton-Tate Co., Lotus Development Corp. and others, developers of software used on millions of computers, want exclusive rights not just to the way a computer accomplishes a certain task but also to the task itself. They want to own not just the insides of a computer program but its "look and feel." Its reminiscent of that recent court case in which Woody Allen stopped a clothing store from advertising itself with an Allen-like character. Says Phillipe Kahn, chairman of Borland International, which makes software products that compete with those of Lotus and Ashton-Tate: "It's as if Las Vegas were suing Atlantic City for copying its look and feel." Who is answering this basic question of software ownership? Judges who don't necessarily know much about the technology whose future they are determining. They are stumbling from one hard case to another, making bad law around an already obsolete 1980 software copyright act and around court precedents going back to the 18th century. At stake is not just the profit margin of a Lotus or an Ashton-Tate but also the billions of dollars of their customers' money sunk into learning computer languages. here we mean "language" in the very broad sense of whatever enables computer users to communicate with machines: the commands in Lotus' 1-2-3 spreadsheet package, the trash can pictured on an Apple Macintosh (which, when selected, causes a file to be discarded), the plus sign in a scientific program. Computer languages are as essential to man-machine communication as human languages are to man-man communication. Without them, users would have to speak to their machines in the 1s and 0s spoken by the chips inside. The computer industry as we know it would not exist. Can you imagine having to type in several thousand 0s and 1s, in exactly the right order, to get your computer to print a letter? The earliest software was thrown in free by computer makers to buyers of their systems. But nowadays software itself is a big business. Lotus Development netted $59 million on sales last year of $469 million, mostly of its 1-2-3 spreadsheet program. For the year ended in January, mainly from sales of its dBase products, Ashton-Tate earned an estimated $48 million on sales of $310 million. Now the language makers are attempting to protect their competitive positions in the courthouse. Ashton-Tate is suing rival Fox Software, Inc., which makes products that can understand the command words of dBase. Lotus is suing two small software houses for selling imitations of its Lotus 1-2-3 language. Apple Computer, Inc., is suing both Microsoft Corp. and Hewlett-Packard Co., saying the companies illegally appropriated the "look and feel" of Apple's Macintosh computer screens. These companies are saying, in effect, that once you've learned how to add a new record to a dBase address file, or how to sort a list in 1-2-3, or how to trash a file on a Macintosh, you can't apply that knowledge to a rival product. What's wrong with that? Shouldn't the creator of a new kind of software own it? Sure, but the question is how much can be owned. To use the gambling analogy, should Atlantic City be prevented from opening casinos if Las Vegas got there first? Unfortunately, the situation is much more complicated than that. One of the things that make computers valuable is the portability of computer knowledge and computer programs. Lotus' 1-23- borrows from the first spreadsheet program, VisiCalc, and both Apple's Macintosh interface and Ashton-Tate's dBase language have their origins elsewhere. "It's important for languages to be public property," says John Backus, the IBM researcher who led the development of Fortran, the standard programming language for scientific applications, in 1957. "If you want to get something done, you don't want to have 50 different languages." Imagine the confusion when the developer of the first modern typewriter patented the placement of the keys, so that succeeding typewriter makers had to change the order of the keys to avoid infringement. That way, if you learned typing on one keyboard, you had to relearn to use a different keyboard. That's comparable to what Ashton-Tate, Lotus and Apple are trying to do. Four million copies of 1-2-3 have been sold, for at least $300 apiece. That billion-dollar investment, however, pales beside the human capital invested in learning how to work a spreadsheet using the Lotus language. There are some 7 million 1-2-3 users worldwide, and Berkeley, Calif,-based software consultant Judd Robins estimates that it costs - very roughly - $1,000 (including both direct costs and lost time from other work while training) to train someone in 1-2-3 to get a minimum level of proficiency. Two million copies of dBase have been sold for an average price of $420; some 5 million users have learned the language. Then there is the time and money that companies spend developing customer applications around dBase and 1-2-3. A company might spend millions of dollars creating programs consisting of computer commands written in the dBase language. Nolan, Norton & Co., a technology consulting unit of accounting firm Peat Marwick, did some arithmetic on these costs. It found that about 70% of the $18,000 total annual cost of running a single business personal computer is in technical support, training and internal software development. Add it all up and you get big trouble for users if the copyright hardliners win their cases. Fox Software's FoxBase isn't a copy of dBase by a long stretch. In its Dec. 12 issue, InfoWorld published benchmark comparisons of several database products. It said the dBase III Plus, the version in widest use, took 87 minutes to sort 100,000 records of a test file, while FoxBase+ took 24 minutes. The new, improved, dBase IV was somewhat better than its older sister, at 60 minutes. Not surprising that Ashton-Tate wants to outlaw the 24-minute version. So, how much power should the creator of a new language have? Users, of course, want competitors to be allowed to innovate around a standard like 1-2-3 or dBase. "If [software] protection becomes too all-encompassing," says Robert Martin, manager of executive support systems at Eaton Corp., the industrial equipment company, "there will be less incentive to continue to innovate." Users also would benefit from price competition between software originators and their rivals. "I don't know if users would have gone with Lotus 1-2-3 if they knew it would end up being something Lotus could monopoly price," says Ronald Evans, director of end-user computing at Nolan, Norton & Co., "but they did, and now they're stuck." Stuck? Lotus and other strict interpretationists see it differently. A legal monopoly is what a patent or copyright is all about. It's the reward for invention. Further, Ashton-Tate worries that look-and-feel protection is necessary to prevent foreign competitors from flooding the market with cheap copies of software programs. Courts, alas, have come to this debate with a very confused law of intellectual property that ill fits the computer age. "Managers are in the difficult position of having to run 21st-century businesses with guidance from a 19th-century legal system," complains Peter Marx, counsel for the Information Industry Association, a trade group. Traditionally, the patent system has protected "functional" works, the machines and processes that helped fuel the country's growth. Alexander Graham Bell's telephone, Thomas Edison's incandescent electric lamp and Henry Ford's transmission mechanism all received patents. Patents are powerful, since they rule out lookalike designs, even those independently arrived at. But the standards are high: The device must advance the "state of the art" to qualify. Moreover, the public filing means that, following the relatively short protection period of 17 years, other inventors have the opportunity to improve upon patented works. The copyright system has traditionally protected works with aesthetic value: music, literature and art. The protection is weaker: Generally, only substantial copies of a copyright work are illegal. Coverage lasts for the author's life plus 50 years (or, in the case of a work-for-hire, for 75 years from publication). If the two sets of rules are different, it is for a very good reason. Society is not harmed if Margaret Mitchell and her heirs own an exclusive on Gone with the Wind for 50 or 100 years. If it's overpriced or badly edited, you can always buy some other novel of love in a time of civil war, if that's what you need. It's a good thing, though, that the fellow who came up with the idea of putting a gasoline-powered engine on wheels couldn't stop Henry Ford. George Selden, the self-proclaimed "inventor" of the automobile, did get a very broad patent, but Ford defeated it in a long court battle. After that, an inventor such as Ford could still get a patent on a particular transmission, but couldn't prevent rivals from getting the same results with different arrangements of gears. Congress decided in 1980 that computer software was more like a novel than a transmission, even though it has elements of both. That's when the problems began. "What you have is copyright giving effective, long-term monopolies to functional subject matter that would not have qualified for patent protection," argues Stanford law professor Paul Goldstein, a leading expert on intellectual property. Consider Intel's long-running suit against Japan's NEC Corp., resolved only last month. Intel alleged that NEC copied "microcode" - computer instructions etched in silicon - from two of Intel's microprocessors. Was microcode, even though part of a silicon chip, a computer program protectible by copyright? The federal judge hearing the case said it was. But the judge also ruled that NEC did not infringe, since it claimed it developed its chips though legal reverse-engineering techniques. Or take Lotus' suit against Mosaic Software's Twin and Paperback Software International's VP-Planner. Lotus doesn't claim that either program copies 1-2-3 code. Rather, the imitators have created, from scratch, software that duplicates the behavior of 1-2-3. Thus, having learned the 1-2-3 language, you can shift to one of the rival products with little adjustment. Think of it this way: You learned to drive a manual transmission Ford. Now Chevrolet comes out with a car with a manual transmission. Chevy didn't copy the gears. But it so engineered the thing that you can switch brands without learning to drive all over again. Ford sues. Apple Computer, in its suit against Microsoft and Hewlett-Packard, tries to take the concept of compatibility a bit further. Building on some innovations made years earlier by Xerox, Apple developed the snazzy Macintosh graphical interface. Instead of having to type in commands like "delete" or "store," a user points at screen pictures of a trash basket or a file folder. If Apple wins, competitors won't be able to utilize similar characters, which would make trouble for everyone who has invested any effort in learning this graphical language. Ashton-Tate goes further, claiming that the "screens, menus, file structure and dBase language" embodied in its products are "an integral part of the look and feel elements of dBase." On short, it wants to own not just the software that translates this language into machine instructions but the language itself. Naturally, Fox Software President David Fulton takes a different view. He contends that Ashton-Tate lured other companies into investing their efforts in programs that build on what Ashton-Tate started: compilers and interpreters (software that translates user words into machine instructions). Now that the personal computer world is hooked - Ashton-Tate has some 60% of the market for personal computer database software - Ashton-Tate wants to change the rules. Ashton-Tate President Edward Esber replies simply that companies like Lotus and Ashton-Tate are using lawsuits to replace innovation as a competitive weapon - or at least as a stopgap measure until they can get their new products into the marketplace. For example, Lotus' latest version of 1-2-3 is more than a year late. Ashton-Tate's new dBase IV, released late last year, was at least two years late and still has serious flaws. Where in all this arguing does the public interest lie? In encouraging innovation and creativity, of course. Too powerful protection of software can also foster plainly anticompetitive market practices. Nintendo, the Japanese electronics company, has captured a roughly 80% share of the market for videogame players. No one begrudges it that. But it may now be using intellectual property law to unfairly control the separate market for the replaceable game cartridges that go into the player. In court, Nintendo is arguing that Atari Games Corp., a rival cartridge manufacturer, violated its patent by reverse-engineering a chip that is necessary to make the game software play in a Nintendo player. Says Atari Games general counsel Dennis Wood, "It's like saying if I buy my car from Ford, I also have to buy my gas from Ford. That's ridiculous." The U.S. needs a powerful software industry, one that can continue to beat the Japanese and create export earnings (Overseas sales by U.S. software makers were some $11 billion in 1988, and are growing at better than 20% a year.) The system must reward innovators but promote a rapid evolution of their product lines. Is there a way to protect innovators without strangling further innovation? Congress could create a separate protection system for software, taking elements from both patent and copyright law. To foster innovation, such a system would specifically prevent copying of codes but permit imitation of results, including looks and feels and languages. That period of protection would be shorter, say ten years. In the quickly moving science of software, that would still leave the originator of a language with a valuable lead of several years over its rivals. It would, to fall back upon the automotive analogy, let inventors patent gear arrangements but not the idea of having a car with a stick shift. [Accompanying the article are several photographs demonstrating look and feel issues. Here are the captions included with each pair of photographs - TT] Lotus eaters: The enormous popularity of Lotus Development's 1-2-3 has made its commands - sequences like WORKSHEET-FILE-SAVE - almost a lingua franca among spreadsheet users. But this language won't be franca for long, if Lotus wins pending copyright lawsuits against Mosaic Software and Paperback Software (USDC-Mass., Nos. 87-0074-K and 87-0076-K). Both of these cloners have reverse-engineered the Lotus software, creating programs that respond to almost all of the Lotus commands and display spreadsheets almost the same way. Above, a Lotus screen is on the left, a Mosaic screen is on the right. Who has the facts?: You can't copyright a fact, such as the population of Tallahasee, but you can copyright the expression or compilation of facts, such as an almanac. The rule works passably well in a world of book publishing. It can't cope with the world of database publishing. One court held that Telerate could prevent another company from selling software that helps users manipulate securities price data provided by Telerate. Another ruled that Moody's could copy bond redemption listings published by a competitor. Independent effort to improve a database has traditionally been sufficient to avoid infringement claims. But in United Telephone Co. of Missouri v. Johnson Pub. Co., Inc. (855 F.2d 604, 8th Cir., 1988) the court ruled that the "expression" of United's Jefferson City White Pages (left) - alphabetically, with addresses and numbers - was protected. The case gives United control over the White Pages market in its area. The karate kids: An idea cannot be copyrighted, but the expression of an idea can. In 1986 videogame maker Data East USA, Inc., charged that the copyright on its popular karate championship game (left) had been infringed by a karate game from rival Epyx Inc. (right). A lower court ruled that Epyx had copied the "look and feel" of the Data East game. An appellate court later ruled otherwise (Data East v. Epyx, 862 F.2d 204, 9th Cir., 1988). That court said that a certain amount of similarity was inevitable between games, given that both show karate. After all, the video designer can't copyright a jump kick. Electronic "forms": In Baker v. Selden (101 U.S. 841, 1880) the Supreme Court ruled that a book consisting of blank bookkeeping forms and an explanatory introduction was copyrightable, but the forms themselves were not. Relying on this precedent, SoftKlone Distributing copied four screens from a competing software product in designing a program that helps computers communicate via a modem. These screens, SoftKlone thought, were electronic forms and therefore not copyrightable. The company that created the original package, called Crosstalk, sued over one screen (left). A court ruled that the copyright for a whole program did not necessarily protect that program's screen displays. But it ruled in favor of Crosstalk (right) because its originator had filed a separate textual copyright on the screen in question (DCA v. SoftKlone, 659 F.Supp 449, NDGA, 1987). Precedential value: considerable, in favor of creators who want an exclusive on the "look and feel" of their software. Practical value to the Crosstalk market: none. In four hours, SoftKlone changed the offending screen. Both brands of software are still being sold. Iconology: Apple popularized an easy-to-use way to get a computer program to file, store, print and the like that relies on "icons" like trash baskets and file folders (left). Users would be thrilled to have such symbols standardized. But when Hewlett-Packard (right) and Microsoft adopted similar screen formats, Apple sued (USDC-S.D. Calid., No. C 88 20149). Both defendants have countersued, charging Apple is using the lawsuit to block their own innovations. Computer talk: The program excerpted at right contains 39,700 lines of code. It was written for use with Ashton-Tate's dBase III Plus. That is, dBase comprehends commands like DO and STORE and ENDIF. The customer purchased several copies of dBase from Ashton-Tate, then spent more money to get the competing FoxBase+ from Fox Software. Why? The program runs much faster in FoxBase. Return-Path: <@hp4nl.nluug.nl:jv@mhres> X-From: Multihouse, Gouda, The Netherlands X-Committed-To: X/Open compliant software and products To: rms@ai.mit.edu Subject: X/Open and the Apple lawsuit Date: Thu, 8 Jun 89 13:22:50 MET (+0200) From: Johan Vromans Richard, for your interest: In X/Open there is a discussion going on on the topic of graphical user interfaces. Users, ISVs and Vendors want a common GUI with a common Look&Feel, but they hesitate because of the Apple lawsuit. Yesterday - on a meeting of the X/Open Independent Software Vendors Advisory Council in Brussels - I have been talking to some X/Open representatives to ask them if X/Open could play a (more active) role in the Apple lawsuit. They said they couldn't. However, they stated that: "X/Open has commissioned a summary of the status of the lawsuits between Apple and Microsoft and Hewlett-Packard. This suggests that any work by X/Open in the area of Look and Feel must be reviewed carefully because of the potential impact of any resolution other than total victory for HP and Microsoft." Moreover, the ISV Council decided that any GUI and Look&Feel adopted by X/Open must legally clean. Regards, Johan -- Johan Vromans jv@mh.nl via european backbone (mcvax) Multihouse Automatisering bv uucp: ..!{mcvax,hp4nl}!mh.nl!jv Doesburgweg 7 phone: +31 1820 62944 2803 PL Gouda - The Netherlands fax: +31 1820 62500 One can easily imagine UI patents forcing programmers to adopt inconsistent UIs. When their software is used in critical applications, it could have similarly disastrous consequences. Key portion: But Beran said Baric was not confused by the lights, but rather by a steering mechanism that allows for minor course corrections. The steering mechanism must be turned in the opposite direction of the intended course -- the reverse of how most such devices operate, Beran said. MIAMI (UPI) -- The officer in charge of a Yugoslavian cargo ship at the time it ran aground off the Florida coast got confused and turned the ship the wrong way, grounding it in an environmentally sensitive coral reef, the ship's captain testified Monday. ``I think he made an error. I think he was confused,'' Capt. Zdravko Beran told Coast Guard investigators on the first day of testimony before a board of inquiry. ``He told me that (navigational) light was dead ahead and then he wanted to turn a few degrees to the port (left).'' Instead, the officer, Zvonko Baric, turned the ship to the right, or starboard, causing it to run aground on sensitive coral in the Fort Jefferson National Monument, Beran said. Beran's testimony appeared to support the claims of U.S. government lawyers, who filed a $9 million lawsuit Monday against the owners of the ship charging that the crew was careless and negligent. The suit said the ship's navigational devices were defective and that the crew ``failed to take due account of wind, weather and current'' when the ship ran aground Oct. 30 in the Dry Tortugas, 70 miles west of Key West. Coast Guard investigators convened the formal board of inquiry Monday to determine the cause of the accident in the sensitive reef, home to a wealth of marine life. Florida Marine Patrol Officer Gordon Sharp testified that he was told Baric mistook one navigational light for another, causing the ship to miss an intended course through Rebecca Channel. ``I took that as a reasonable explanation of what happened,'' Sharp said. The crew of the Mavro Vetranic intended to steer the ship 1.8 miles to the east of Pulaski light, but the ship ran aground a half-mile west of the 49-foot navigational tower, Coast Guard Lt. Cmdr. Paul Von Protz said. But Beran said Baric was not confused by the lights, but rather by a steering mechanism that allows for minor course corrections. The steering mechanism must be turned in the opposite direction of the intended course -- the reverse of how most such devices operate, Beran said. Coast Guard investigators are expected to call Baric to testify when the board reconvenes Tuesday. The lawsuit filed in U.S. District Court in Miami names as defendants the ship, its owner, Atlantska Plovidba, which is based in the Adriatic city of Dubrovnik, and Beran. The lawsuit said the reef was well known and charted and that those in charge of the ship ``were careless, incompetent and inattentive to their duties.'' Federal officials seized the ship at 2 a.m. Sunday to make sure that any award damages that result from the suit are paid by the ship's owners, said Diane Cossin, a spokeswoman for U.S. Attorney Dexter Lehtinen. But a lawyer for the company said his client was negotiating with the Justice Department to reclaim the ship, either by posting a bond or a letter of undertaking, which he said is similar to a letter of credit. The vessel was refloated off the reef late Thursday after it was emptied of about half of the 390 tons of fuel it was carrying. The 475-foot ship arrived in Miami Saturday. State officials estimate that the grounding damaged up to three acres of live coral reef in the Dry Tortugas. Federal officials have said that the reef is within the protected monument, which is 65 miles west of Key West and covers 64,000 acres. The grounding did not produce a spill. The vessel was carrying 15,730 tons of phosphate, 120,000 gallons of fuel oil and 23,000 gallons of diesel fuel. Asked how future such accidents could be avoided, Beran said the federal officials could require ships to go around rather than through the national monument. Xerox Suit Claims Apple Stole Pioneering Machintosh Software Design By MARY McGRATH Associated Press Writer SAN FRANCISCO (AP) - Xerox Corp. sued Apple Computer on Thursday for allegedly pirating an imaginative software graphics display that Apple used to create the Macintosh, which revoluntionized desktop software standards. The suit in federal court, the first of its kind ever filed by Xerox, claims the software for Apple's now-defunct Lisa computer and Macintosh Finder, both copyrighted in 1987, were derived from two Xerox programs: Smalltalk, developed in the mid-1970s, and Star, copyrighted in 1981. The suit said then-Apple President Steven Jobs saw a demonstration of Smalltalk at Xerox's Palo Alto Research Center in 1979, and that he and other Apple employees were ``very impressed with the unique and revolutionary user-friendly design.'' Jobs was ousted from Apple in 1985 and founded Next Inc., which makes computer workstations. Apple was granted a license in June 1981 to participate with Xerox in a project to implement Smalltalk into a hardware system to be developed by Apple, the suit said. It said a ``substantial amount'' of Smalltalk was adopted by Apple into Lisa and the Macintosh Finder software used with the Macintosh computer. Thomas C. Abbott, a spokesman for Stamford, Conn.-based Xerox, said the civil suit was filed in U.S. District Court after efforts beginning a week ago to reach an agreement were rebuffed by Apple. ``We sought a settlement with Apple and we resorted to these legal means only when it became absolutely necessary,'' said Abbott. He said Xerox waited to approach Apple until copyright laws regarding software were clarified by the courts. Officials of Apple, based in Cupertino, did not immediately return telephone calls seeking comment. Lisa, first published in 1983, was identified in its 1987 copyright registration as being an original work of Apple, and Macintosh as a derivative work of Lisa, the suit said. Neither was identified as a derivative of the Xerox products, it said. The suit, which asks for a jury trial, said the Star program ``is widely recognized in the computer industry as being the first to introduce fanciful desktop workstation graphics to allow the user to interact with the computer,'' a development that took Xerox ``millions of dollars and years of creative effort.'' The suit says the Apple employees saw Star at its inaugural trade show, in Houston in June 1981, and copied substantial portions into Lisa and the Macintosh Finder, including the design and appearance of the main application windows, dialogue boxes and menu, and some of the exact icons, or symbols, used in the program. It also said Apple gained unauthorized access by hiring several Xerox employees in the late 1970s and early 1980s, including Star software developers. Xerox seeks court orders invalidating Apple's Lisa and Macintosh Finder copyright registrations, and declaring that Xerox is the sole owner of material common to its products and Apple's products. The suit claims unfair competition under both state and federal laws, claiming $25 million in damages under each law plus punitive damages under state law in an unspecified amount. It also seeks at least $100 million from Apple for unjust enrichment from licenses and royalties for its products. Macintosh graphics revolutioned desktop computer design by replacing complicated word codes with simple symbols, vastly streamlining the way users ranging from schoolchildren to office workers select programs, issue commands and perform other functions. Xerox's suit is remarkably similar to one filed by Apple. Apple sued Microsoft and Hewlett-Packard Co. in the same court in March 1988, claiming infringement of Lisa and the Macintosh Finder, among other works, and claiming both were original to Apple. Apple claimed that Microsoft's Windows 2.03 and a Hewlett-Packard program called NewWave, which is based on it, too closely resemble the ``look'' of screen displays on the Macintosh. A federal judge in July issued a tentative ruling that greatly narrowed Apple's suit by deciding the items covered in a 1985 licensing agreement between Apple and Microsoft could not be used as evidence against Microsoft's and HP's versions of the products. Analysts have said the case is crucial to industry developments in the 1990s. AP-NR-12-14-89 2143EST San Francisco Chronicle Friday, December 15, 1989 By John Eckhouse Chronicle Staff Writer Xerox Corp. yesterday filed a $150 million lawsuit against Apple Computer, claiming the technology that has helped the Cupertino based company sell millions of its Macintosh personal computers was unlawfully obtained from Xerox. An Apple spokeswoman immediately called the case ``without merit.'' But it hits the company at a time its sales -- and stock price -- have been sliding. Apple has never denied borrowing technology for its Lisa and macintosh computers from work originally done at Xerox for its ill-fated Star personal computer. Apple co-founder Steve Jobs was so enamored of the Star's ease of use that he hired away several researchers who had worked on the product at Xerox's Palo Alto Research Center. Industry insiders assumed that Jobs had licensed the Star technology, but both Apple and Xerox said yesterday that was not true. Jobs declined to comment yesterday. ``Existing ideas have been incorporated into the Macintosh audiovisual displays, but they were ideas we used to create our own unique expression and on which we have copyright protection,'' said Apple spokeswoman Carleen LeVasseur. She said she did not believe Xerox had copyright protection for its Star technology. A Xerox spokesman disputed that claim. He said Apple's use of portions of the Star's graphic user interface violated Xerox copyrights. Xerox asked the court to order the U.S. Copyright Office to cancel Apple's copyright registrations on grounds of fraud. The lawsuit charges Apple unjustly licensed the technology to other companies and collected more than $100 million in royalty and license fees. Apple has been aggressive in defending its Macintosh technology. It currently is in the middle of a lawsuit in which it charged industry heavyweights Hewlett-Packard and Microsoft with copyright infringement. One of HP's defenses in that suit has been to assert that Apple has no copyright on the technology. ``We said there was no originality, it was created by someone else at Xerox,'' said Ronald Laurie, a Menlo Park attorney on the HP defense team in the case. Xerox introduced the Star computer and copyrighted its technology in 1981. Apple did not introduce similar technology unveiling the Lisa computer in 1983 and the Macintosh in 1984. Xerox did not decide to aggressively protect its technology -- which includes the now-common hand-help pointing device known as a ``mouse'' and screen displays that make it easy to select programs and issue commands -- until this year. ``There are a number of reasons for that,'' said Xerox spokesman Thomas Abbott in Stamford, Conn. The main reason for the delay was the recent change and clarification in intellectual property laws, he said. Since the beginning of the year, Xerox has approached many large computer companies and demanded they pay a license fee. Abbott would not identify the companies, but so far both Sun Microsystems and Metaphor Computer Systems, both in Mountain View, have agreed to pay fees to Xerox. Xerox contacted Apple about a week ago. Apple advised Xerox yesterday it had nothing further to discuss ``so we filed suit,'' Abbott said. ``The Xerox complaint seems to confuse the difference between the ideas and the expressions,'' said LeVasseur of Apple. ``Copyright protects expressions, but not ideas. Our ideas have come from a number of sources in the industry, but ideas cannot be copyrighted, only the expression of those ideas and we have only copyright registration for those.'' While Apple has wanted to closely guard its user interface technology by granting few license, Xerox has indicated it will make its technology widely available for a reasonable fee to whomever wants it. SAN FRANCISCO -- A federal judge has thrown out nearly all of Xerox Corp.'s $150 million suit against Apple Computer over rights to the personal-computer industry's most crucial software technology. [...] The dismissed counts include Xerox's contention that Apple fraudulently obtained copyrights on the visual displays and easy-to-use system of commands found on its Lisa and Macintosh computers. [...] Walker also threw out Xerox's contention that Apple was guilty of unfair competition. Xerox had alleged that Apple wrongfully received at least $100 million and caused at least $50 million in damages to Xerox's business. The ruling still allows Xerox to seek a judgment affirming its copyrights on technology that comes with its Star computer. Xerox has noted that such technology can also be found in Apple's Macintosh or Lisa computers, and that potential Xerox customers fear lawsuits from Apple. [...] He said that Xerox intends to appeal the ruling as soon as the one remaining count is settled. >From: dennis@goofy.UUCP (Dennis Godfrey) Newsgroups: misc.legal,comp.software-eng,comp.sys.mac.programmer,rec.games.programmer Subject: Software Copyright Law Keywords: European Community, copyright, reverse engineering Date: 5 Apr 90 00:23:27 GMT Organization: Control-C Software, Beaverton, OR I am posting this message on behalf of a good friend without access to the net. I will see that all responses reach him. Hey there out in Netland, something very strange seems to be going on in Eurpoe as far as new copyright law for software is concerned. I just came back from talking to software developers in a few of the European Community countries and I think you Netters might be interested in what is being proposed. Here's the low-down on the proposals in the so-called, EC Copyright Directive (due to be passed into law in each of the EC member countries in time for 1992 when the trade barriers come down): 1. Copyright protection might be extended to include interface specifications and access protocols. I don't mean visual interfaces either, but actual function call, parameter block, file format interfaces and so on. 2. Any type of reverse engineering of someone else's object code will only be permitted if you get a specific written license from the someone else. Reverse engineering in this context means such things as using a disassembler to try and figure out what their object code does, taking memory dumps, single stepping through code, monitoring comms. lines and so on. IMHO these proposals are at best misguided and unrealistic and at worst have a rather sinister blue hand guiding them. Lawyers from IBM, DEC and Apple are suggesting that unless they do the above, the European Community will be writting a charter for software piracy. They also think that "with the push of a button" you can "decompile" (or meaningfully disassemble) a program and get a close approximation of the original source code including interface specifications, data structures and other high level stuff. I know, I know, IT CAN"T BE DONE (at least not from the object code from any optimizing compiler I have ever seen). They figure that disassembly/decompilation is unnecessary seeing as how programmers can read the object code directly - as in read the hex/octal without a disassembler!! My question to you, fellow Netters, is what do YOU think of these proposals? Do you think it makes sense that any and all software/ software and software/hardware interfaces (other than person/machine interfaces) should be protected? Would you be able to develop new products if you were barred from using someone else's interface specifications, file formats, access protocols? Do you think all of those friendly major players in the industry really would license us all to use their interfaces, file formats etc.? On reasonable terms? Quickly? Can you do your software development job if you were barred from doing any kind of reverse analysis (including disassembly) on someone else's code? (Can you all read machine code directly without using a disassembler??) Could you imagine having to write to each vendor whose code you might have to disassemble and ask for WRITTEN license to do it? Could you imagine not being able to disassemble someone else's code to figure out their interfaces, access protocols, or even their bugs that you have to work around or be compatible with? Many of the folks I have spoken to don't take this stuff seriously ("Who do those guys think they are?" "They can't do that!" etc.) Don't kill the messenger -- but they ARE serious and they CAN change the law in Europe. In fact, some 287 directives affecting European laws are now being passed in the hope of making Europe more like a single "federal" state. Europe stands to become the second largest software market in the world. My concern is that if the Europeans do this, a) we can't sell our software to Europe ('cos we'll get sued to a standstill) and b) there's a good chance dominant players in the industry will try and get Congress to change the law here. I've posted this to several newsgroups in an effort to get a good cross-section of opinion so apologies if you have already read this in another group. Please email me directly at ...!tektronix!sequent!toontown!dennis and I'll summarize if appropriate. BTW, fell free to flame at me about this situation if it burns you up as much as some of the folk I have spoken with (how often do you hear that invitation, eh?). IMHO this is serious enough to warrant getting the word out in the software community before the situation gets out of hand. If you want more info or feel the urge to write to someone (congressman, European Comissioners etc.) email me and I'll give you some names and address. Dennis Godfrey ...!tektronix!sequent!toontown!dennis Computer Currents article 3/27/90 Bricklin & Kapor Testify on Software Protection Daniel Bricklin and Mitch Kapor, the designers of VisiCalc and Lotus 1-2-3, respectively, testified before a House of Representatives subcommittee recently that software protection regulations should not be overly restrictive. While both felt that the property rights of publishers and developers must be protected, they agreed that this protection should not be of a nature that turns the industry into a legal battleground. Kapor told the committee, "Litigation is becoming a business tactic, not a product of last resort. Software should not be an industry driven by litigation." He added that over-protection of software "is just as pernicious as underprotection in its stifling effects on innovation." The position of both witnesses was that it is actual program code and not the underlying ideas that should be protected. Kapor was quoted as saying, "I would only call my lawyer if we found that these competitors had not just copied the idea but the actual lines of code underlying it." Kapor's former company, Lotus Development Corporation, has sued Paperback Software and Mosaic Software, charging that their spreadsheet products resemble 1-2-3 to such an extent that they violate a vested "look-and-feel" right of Lotus. Similarly, Bricklin's ex-company, Software Arts, has sued Lotus Development, claiming that the company illegally utilized VisiCalc's appearance and method of operation during its development of the highly successful 1-2-3. Briclin, no longer associated with Sofwtare Arts, has disassociated himself from the suit. The sub-committee of the House Judiciary Committee is considering a study released recently by the Congressional Office of Technology Assessment which calls for better legal protection of U.S. commercially develoiped software. Bricklin said that "he felt our appearance before teh committee was very useful. The committee is considering a revision of the laws governing the protection of intellectual property and we felt that it should be aware of our concerns." --Barbara E. McMullen & John F. McMullen, Newsbytes From: athena.mit.edu!rlcarr@next.cambridge.ma.us Date: Fri, 4 May 90 01:37:08 -0400 To: sipb@athena.mit.edu Subject: tetris Point of info: Spectrum Holobyte is going after 8 or so different Amiga PD Tetris clones, claiming "look and feel." I assume you guys cleared Xtetris with them, but if not, I thought you'd be interested of knowing of this. Rich Carreiro Denizen of Hell ARPA: rlcarr@athena.mit.edu Graduate Student UUCP: ...!mit-eddie!mit-athena!rlcarr MIT BITNET: rlcarr@athena.mit.edu Physics Department Lotus Wins Copyright Infringement Suit By DANA KENNEDY Associated Press Writer BOSTON (AP) - A federal judge ruled Thursday that keyboard commands and on-screen images produced by Lotus Development Corp.'s popular 1-2-3 spreadsheat program are protected by copyright laws. Paperback Software International, which lost the case along with subcontractor Stephenson Software Ltd., argued that the copyright applies only to the inner-workings of the software. In his 115-page decision, U.S. District Judge Robert Keeton wrote that ``the user interface of 1-2-3 is its most unique element and is the aspect that has made 1-2-3 so popular. That defendants went to such trouble to copy that element is a testament to its substantiality.'' Michael Burdick, Paperback vice president of sales and marketing, declined to comment on specifics of the lengthy decision. ``If (the decision) is upheld in an appeal, it will have a serious effect on the software business,'' Burdick said. The company will appeal the decision to the 1st U.S. Circuit Court of Appeals in Boston, he said. The attorney for Lotus praised the decision. ``In bringing this case we sought to protect the original creative expression that is a very large part of what people value in our product,'' said Tom Lemberg, vice president and general counsel of Cambridge-based Lotus. During the non-jury trial, which began in early February, Lotus product managers displayed three video screens to show the similarities in commands among Paperback Software's VP-Planner and Mosaic's Twin Classic program. Because the attorney representing Mosaic fell ill during the trial, Keeton chose to concentrate only on Paperback Software as the defendant. It was not immediately clear Thursday if the ruling would also apply to Mosaic. Defense attorneys had argued that the Lotus commands represented ``instructions for a machine rather than the expression of an idea.'' AP-NR-06-28-90 2118EDT Date: Mon, 25 Jun 90 21:29:26 PDT From: Paul Rubin To: pacbell!ames!ai.mit.edu!rms Subject: Lotus enters software clone business SF Chronicle business section (p. C12), 6/25/90. Lotus has bought the rights to AlphaWorks, described as a clone of Microsoft Works (an all-in-one office automation program (text formatter/database/spreadsheet)). They plan to market it under the name LotusWorks. It doesn't say how closely the interface was copied. type: NYT (Copyright 1990 The New York Times) priority: Regular date: 06-28-90 2121EDT category: Financial subject: BC LOTUS COPYRIGHT title: COMPETITOR VIOLATED LOTUS 1-2-3 SOFTWARE COPYRIGHT, COURT HOLDS author: JOHN MARKOFF text: Lotus Development Corp. gained a significant victory Thursday when a federal judge in Boston ruled that its copyright had been infringed by competitors whose software imitates the distinctive appearance of Lotus's 1-2-3 spreadsheet program. The case, which Lotus brought against two of its small challengers, Paperback Software International and Mosaic Software Inc., in February 1987, had been closely watched by the computer industry. Both Paperback and Mosaic sell $99 spreadsheet programs for IBM and compatible personal computers that imitate both the appearance and the command set of Lotus 1-2-3, the best-selling spreadsheet program. The Lotus software lists for $495. The two cases were separated when the lawsuit originally went to trial, and Thursday's ruling applied only to Paperback Software and its Canadian development partner, Stephenson Software Ltd. Executives of Lotus, which is based in Cambridge, Mass., have argued that the two smaller companies copied a Lotus format -- a grid-like design on the computer screen -- as well as the sequence of keystrokes used to manipulate information. The Lotus ruling continues a legal trend of the past decade that has significantly broadened the notion of what constitutes intellectual property protection for software. Originally, most of the industry felt that only the programmer's underlying instructions were protected under copyright law. But beginning in the early 1980s, a series of lawsuits involving the video screens of game programs extended protections to the appearance of programs. Some industry executives contend that the Lotus case could radically change the nature of software competition. Many in the industry fear that companies that are successful in setting an ``industry standard'' might be able to use the case to block newcomers, restricting innovation. Now it appears that the dividing line between imitation and innovation may be clearer. (STORY CAN END HERE. OPTIONAL ADD FOLLOWS) ``It's an important ruling,'' said Jack Russo, a Palo Alto, Calif., lawyer who specializes in copyright issues. ``In the future, if there's a product that becomes the accepted product in the industry, it will be very difficult to create a program that competes with it without being willing to retrain users extensively.'' The Lotus ruling may affect other lawsuits now pending, including a suit that Apple Computer Inc. filed against the Microsoft Corp. and the Hewlett-Packard Co., accusing them of copying certain portions of its Macintosh software, Russo said. ``It's an overwhelming victory for Lotus,'' said Thomas M. Lemberg, the company's general counsel. ``There is a larger message to the industry, and it's a very helpful one,'' he added. ``The copyright law really does protect incentives designed to reward innovation.'' Executives at Paperback Software said they intended to appeal the ruling. They said they were still trying to digest the 110-page ruling made by U.S. District Judge Robert Keeton and would have no immediate comment. ``We're not totally surprised by the direction the judge has taken,'' said Micheal K. Burdick, Paperback's vice president of sales and marketing. ``Our view is that it is just one step in the legal process.'' In his ruling Keeton wrote: ``I conclude that a menu command structure is capable of being expressed in many if not an unlimited number of ways, and that the command structure of 1-2-3 is an original and non-obvious way of expressing a command structure.'' The ruling would affect only programs that directly copy the visual appearance and the command structure of 1-2-3, Lotus executives said. The principal competitor to 1-2-3, Microsoft's Excel program, has a different appearance and a different menu-based command set. Lotus officials said that the ruling did not extend to companies that publish programs that are compatible with Lotus files, and that it had no intention of trying to claim copyright protections over file compatibility. Paperback Software was founded in 1984 by Adam Osborne, a personal computer industry executive who also founded Osborne computer, the maker of the industry's first transportable computer. Date: Fri, 29 Jun 90 12:40:56 EDT From: rms@ai.mit.edu To: info-gnu-emacs@prep.ai.mit.edu Subject: Briefs? [Someone asked if the League for Programming Freedom had filed a friend-of-the-court brief in the Lotus case, and if any League members had testified.] The League did not file a friend of the court brief in the Lotus case. There are two reasons to file such a brief: to make legal arguments that the plaintif and defendant are not going to mention, and to indicate the opinion of a sector of the public. In this case, the defendants were making the same arguments we would make. And the League is not yet large enough to be regarded as representing community opinion. We need more members to do that. A consequence of not having enough members is that the League also doesn't have enough money to pay for the writing of a brief. The FSF could pay for one, and I considered doing this, but did not because of the other reasons. It is not likely that League members will testify in court (as expert witnesses, I assume you mean). Some of the people who testified told me that they expected membership in a political organization to be held against them; for this specific reason, they did not join the League. This is strange, since political activity is supposed to be one of the sacred aspects of American democracy, but I am assured it is so. However, most of us are not needed as expert witnesses, because a few prominent ones are enough. The rest of us can join the League. It is possible that someone representing the League will testify at a Congressional committee one of these days, if enough people join. Date: Fri, 29 Jun 90 13:27:06 EDT From: rms@ai.mit.edu To: info-gnu-emacs@prep.ai.mit.edu Subject: Style files [Someone asked whether the problem of user-interface copyright could be circumvented by developing customizable applications which users could make compatible with their favorite interfaces by writing "style files".] The style file solution does not really solve the problem of look-and-feel copyright. It is possible to write a customizable application that uses a style file to set up the key bindings and menus. And if the set of bindings that the application comes with is not compatible with anything, it will probably be lawful to distribute it. However, ordinary users don't generally want to go to the trouble of writing style files themselves. For a complicated application with a straight-forward interface but a lot of features, the style file could be hundreds of lines long. Writing it would not be something you would do on impulse, unless you write programs for the fun of it. Ordinary users could benefit from style files if they did not have to write them individually--if they could be written once and distributed widely, as we have done in GNU Emacs to emulate various other editors. However, distributing a style file for the bindings of 1-2-3 would cause you to be sued. Some such distribution will go on, but only underground, and most users won't be able to find out where to get a copy. Businesses will probably refuse to allow them on the premises. In the end, there is not really much difference between reprogramming a spreadsheet with a style file and reprogramming it by changing the C code. Style files do offer a possibility for political action. Someone who is willing to go to jail for civil disobedience could distribute a compatibility style file persistently and openly, accepting no money so there could be no doubt of the person's motives, refusing to obey court orders to stop, and thus challenging Lotus to put him or her in jail. This would bring home to the public the absurdity and injustice of Lotus's power like nothing else. Using a mere style file instead of an entire program would make the point even stronger. However, we have plenty of things to try before we need to resort to this. If we simply organize enough programmers as members of the League, we can probably persuade Congress we are right without any pain at all. Date: 29 Jun 90 18:42:37 GMT From: gore!jacob@boulder.colorado.edu (Jacob Gore) Organization: Gore Enterprises Subject: Re: Style files References: <9006291727.AA16726@sugar-bombs.ai.mit.edu> Sender: info-gnu-emacs-request@prep.ai.mit.edu To: info-gnu-emacs@prep.ai.mit.edu Apple, in its suit against Hewlett-Packard, claimed that NewVawe infringed on Mac copyrights because it COULD be configured to look like a Mac screen. The facts that their "evidence" was not the default configuration of NewVawe did not deter them. Much as I hate government involvement in this (or just about anything), I'm afraid that legislation is called for. We're already fighting off attacks to legislate monopolies, perhaps it's time for a counterattack. Jacob -- Jacob Gore Jacob@Gore.Com boulder!gore!jacob Date: Mon, 2 Jul 90 13:45:18 EDT From: rms@ai.mit.edu To: info-gnu-emacs@prep.ai.mit.edu Subject: Are extortion fees exorbitant? [Someone suggested that we "solve" the problem by buying licenses from Lotus. He suggested this would be perfectly satisfactory if the fees were not exorbitant.] Giving Lotus the power to control who uses the interface users know is bad for the public interest and takes away our freedom. (For arguments for this, see the position paper that I mentioned recently.) It is short-sighted to consider only the cost Lotus might choose to impose on us in this occasion. Even if, amazingly, they were to make it so small as to be insignificant, there is no reason to expect the next owner of a user interface monopoly to do likewise. For both of these reasons, what we must do is try to take away Lotus's new power. If Lotus offers a few of us surrender on painless terms, we should still keep resisting. For the Free Software Foundation, this is a moot point, since the alternative of surrender is not available. Licenses usually require payment per copy. There is no way for this to be done for a free program. We cannot require our users to pay Lotus when they redistribute (not even in special cases), nor can we pay the fee for them. Lotus Sues 2 on Copyright Violation, NYT, D1 by John Markoff Acting swiftly to capitalize on last week's Federal court ruling giving copyright protection to the set of computer commands used in its popular 1-2-3 spreadsheet program, the Lotus Development Coprporation sued to California software companies yesterday, accusing them of copyright infringement. .... The suits today named BORLAND INTERNATIONAL and the SANTA CRUZ OPERATION as defendants. .... Borland executives argued that the Lotus suit was without merit because Borland's spreadsheet, Quattro Pro, does not mimic the Lotus command set; rather, it has its own distinctive menu system. However, it is possible to configure the Quattro program so that it appears with ``1-2-3-compatible menu tree commands.'' The user must install special files for this operation, which is detailed in the Quattro program guide. ........ TO: Lotus Employees FROM: Tom Lemberg, vice president and general counsel SUBJ: Copyright lawsuits DATE: 2 July 1990 Today, Lotus filed copyright infringement suits against Borland International, developer of Quattro and Quattro Pro, and The Santa Cruz Operation (SCO), developer of SCO Professional. At the heart of our complaints against Borland and SCO is our belief that both companies' products infringe Lotus' copyrights by copying the menu commands and command structure of Lotus 1-2-3, among other elements of 1-2-3's user interface. We have a responsibility to our customers, you, our employees, and our shareholders to vigorously protect our copyrights. We began looking at the 1-2-3 copyright issue several years ago when we became aware of products from other vendors that we believe violated our copyrights. In January 1987, we sued Paperback Software International and others for copyright infringement. Last week, federal Judge Robert E. Keeton established the copyrightability of Lotus 1-2-3's user interface in his decision in Lotus vs. Paperback. We awaited a decision in that case before proceeding against Borland and SCO whom we believe copied substantial elements of the user interface of Lotus 1-2-3. The copyright law provides the legal framework that encourages the innovation that has driven our industry's success. It gives successful innovators protection from those who would profit by copying their creations. It also encourages lawful and fair competition by rewarding innovation; it outlaws unfair competition by those who copy and sell the creations of others. We believe the copyright law as it pertains to software protects developers large and small by incenting them -- and investors -- to invest the money, make the enormous effort and take the great risks it takes to achieve success in the marketplace. Similar to Lotus vs. Paperback, the suits we filed today will provoke considerable debate in the developer, consultant and user communities. We expect varying reactions. Those who disagree with us on this issue are entitled to their opinions and have a right to express them. We will respect those rights as we pursue ours. IMPORTANT GUIDELINES If you are discussing Quattro, Quattro Pro and SCO Professional with anyone, you must follow the following guidelines: Even if asked, you should not talk about these cases against Borland and SCO, other than to state the following: "The suits against Borland and SCO have been filed and are now in litigation. Other than to say that Lotus has charged Borland and SCO with violating its copyrights by copying central aspects of the user interface of Lotus 1-2-3 in their products Quattro, Quattro Pro and SCO Professional, I cannot comment on the suits. If you have questions, please contact Lotus' corporate communications department." You should not predict or speculate about the outcome of the cases against Borland or SCO, or the consequences of a particular outcome. You should not state as a conclusion that Quattro, Quattro Pro or SCO Professional are illegal or violate Lotus' copyrights. With that limitation, you may explain the advantages of Lotus 1-2-3 or other Lotus products over competitive products (including any version of Quattro or SCO Professional). If asked about Judge Keeton's ruling in Lotus' suit against Paperback Software and Stephenson Software, you should refer the questioner to Lotus' press release about the decision, dated June 28, 1990. You should not expand upon that press release and should refer any further questions about the Paperback decision to Lotus' corporate communications department. A copy of the June 28, 1990, press release was sent to you via EMail. If you need another copy, contact Lotus' corporate communications department. Thank you in advance for your compliance with these guidelines. Contact Richard Eckel Lotus Development Corporation (617) 225-1284 MCI ID: 374-8749 FOR IMMEDIATE RELEASE Lotus Files Copyright Infringement Suits Against Borland International and The Santa Cruz Operation CAMBRIDGE, Mass., July 2, 1990 -- Lotus Development Corp. today filed separate suits in Boston's U.S. District Court against two California software companies, charging copyright infringement of the company's best-selling software, Lotus 1-2-3. The suits charge that products marketed by Borland International Inc. of Scotts Valley, Calif. and The Santa Cruz Operation Inc. (SCO) of Santa Cruz, Calif. violate Lotus' copyrights in the user interface of Lotus 1-2-3. The specific products named in the suits are Quattro and Quattro Pro from Borland International and SCO Professional from SCO. Federal District Court Judge Robert Keeton last week ruled that Paperback Software International of Berkeley, Calif and Stephenson Software Ltd. of Vancouver, British Columbia violated Lotus' copyright in Lotus 1-2-3 by copying substantial elements of the software program's user interface. "Lotus 1-2-3 is our most significant product, in which we have invested considerable resources to meet the evolving needs of our customers," said Thomas Lemberg, Lotus' vice president and general counsel. "We have a responsibility to our customers, employees and shareholders to protect our product from unlawful copying. "Among other things, we believe that in developing Quattro and Quattro Pro and SCO Professional, Borland International and The Santa Cruz Operation have copied the Lotus 1-2-3 commands and menu structure virtually in their entirety," Lemberg added. "These are specific elements of Lotus 1-2-3 that the Court last week ruled cannot be copied. This suit has nothing to do with customers, resellers or add-in developers of either Borland or SCO." In his 113-page decision last Thursday, Judge Keeton said that the user interface of Lotus 1-2-3, including the structure, sequence and organization of the program's menus, are copyrightable. "I conclude that a menu command structure is capable of being expressed in many if not an unlimited number of ways, and that the command structure of 1-2-3 is an original and nonobvious way of expressing a command structure," Judge Keeton stated in the opinion. "The user interface of 1-2-3 is its most unique element, and is the aspect that has made 1-2-3 so popular," the Court wrote. "The software industry has thrived because of the innovative creations of hosts of developers," Lemberg said. "As last week's decision makes clear, the copyright law protects such innovative expressions as the menus in Lotus 1-2-3. Lawful competition is based on innovation, not imitation. One effect of seeking to enforce our copyrights is to protect software innovators everywhere from illegal copying, which ultimately leads to advances in technology that benefit customers." Lotus Development Corp. is the leading provider of applications software for personal computers and information services delivered on CD-ROM, and is a worldwide supplier of applications software for workstations, minicomputers and mainframes. Technology & Science: Lotus Development Wins Suit Charging Paperback Software Violated Copyright ---- By William M. Bulkeley Staff Reporter of The Wall Street Journal WALL STREET JOURNAL (J) 06/29/90 Copyright (c) 1990 Dow Jones & Company, Inc. BOSTON -- Lotus Development Corp. won a closely watched lawsuit in which it charged that Paperback Software International had violated its copyright on its best-selling 1-2-3 program. Federal District Court Judge Robert Keeton ruled that "liability for infringement" of Lotus's copyright was established by Lotus in the three-year-old case. Software copyrights have been a contentious issue in the software industry since Lotus filed its suit against Paperback, which is based in Berkeley, Calif. Paperback's VP Planner program used different computer code than Lotus's 1-2-3, but its commands and user interface - - the screens and keystrokes that the user sees and uses -- were so similar as to violate Lotus's copyright, Judge Keeton ruled. He called the copying "overwhelming and pervasive." Judge Keeton's 113-page ruling was issued late yesterday afternoon in Boston. The ruling isn't likely to have much financial impact on Lotus, which analysts say has maintained its dominant 60% market share despite competition from clonemakers such as Paperback and other software companies. However, "it's going to be a long hot summer for the defendants in all the pending software copyright suits," said Robert Therrien, an analyst with PaineWebber. Apple Computer Inc. is suing Microsoft Corp. and Hewlett-Packard Inc. over alleged violations of its copyright on the Macintosh computer interface. "There's a strong probability that Apple has a good case," Mr. Therrien said. Many computer law experts had predicted that Lotus would win the case, based on the growing body of software copyright law. "This is going to re-emphasize that screen displays are copyrightable subject matter even if the underlying code is different in the two products," said John Yates, an Atlanta computer law specialist who represented Digital Communications Associates Inc., Alpharetta, Ga. in its successful copyright-infringement suit against Softklone Distributing Corp. Thomas Lemberg, Lotus's vice president and general counsel, said the ruling "is definitive. It is a major victory and we feel very good about it." Henry Gutman, Lotus's outside counsel on the case, added, "It's a very important decision." Mr. Lemberg said that Lotus expects to request an injunction prohibiting Paperback from continuing to sell VP Planner at a conference that Judge Keeton scheduled for July 19. The issue of damages in the case had been reserved for a separate phase of the trial. Attorneys for Paperback couldn't be reached for comment. In his ruling, Judge Keeton said that he didn't find the concept of a copyright on "look and feel" of a program to be "significantly helpful." Many software lawyers, frustrated by the difficulties of defining what elements make a program creative and innovative have used the phrase "look and feel," which is borrowed from copyright decisions on music, plays and novels. He said he preferred the concept of a user interface. Judge Keeton said that some aspects of the user interface weren't evidence of copyright violation. For example, what he called the "rotated `L' " arrangement of headings for rows and columns and the use of the slash key to start commands, aren't copyrightable he said. However, he said that the menu of commands that a user can invoke, such as copy, move, file "is capable of being expressed in many . . . ways." He noted that other spreadsheets, including Microsoft's Excel have very different command menus. And he concluded that the menu is a key element of 1-2-3's user interface, which "is the aspect that has made 1-2-3 so popular." In a separate development, Lotus shifted responsibility for some jobs among vice presidents and hired a new vice president from Apple Computer Inc. Lotus named Donald P. Casey, Apple's vice president of networking and engineering, as its new vice president of the spreadsheet division, in charge of its key revenue source. The departure of Mr. Casey, however, is a blow to Apple, whose research and development organization is still reeling from the ouster early this year of Jean-Louis Gassee. Since then, John Sculley, Apple's chief executive officer, has been overseeing the company's research and development activities. Mr. Casey directly reported to Mr. Sculley and recently was handed responsibility for producing new products for the company's Apple II family as well as networking products. Mr. Casey, 44 years old, said that the Lotus job "is a great opportunity." He said he wasn't leaving Apple in a dispute over strategy, but declined to comment on Apple's outlook. Mr. Casey succeeds Frank Ingari who becomes vice president of the new Emerging Markets Business Group, which will seek markets in the home and small businesses. June Rokoff, vice president of graphics products will become vice president of a new group in charge of communications and information services, including its CD-Rom products. David Roux who had headed some of those operations becomes vice president of business development. Technology: Lotus Takes Hard Line On Software ---- By Ron Suskind Staff Reporter of The Wall Street Journal WALL STREET JOURNAL (J) 07/03/90 Copyright (c) 1990 Dow Jones & Company, Inc. CAMBRIDGE, Mass. -- Lotus Development Corp., emboldened by its copyright victory against a small software company, is now waging battle against more formidable rivals. Lotus filed suit against California-based Borland International Inc., claiming that Borland's upstart Quattro software infringes on the copyright of Lotus's best-selling 1-2-3 spreadsheet. The suit, which includes a similar complaint against Santa Cruz Operation Inc., another California software maker, comes on the heels of Lotus's copyright infringement victory last week over Paperback Software International. Legal experts say that last week's decision, while not ensuring future success in court, has strengthened Lotus's position. "Lotus is now in an extremely powerful position to enforce its copyright against Borland and others," says Lee Gesmer, a partner at the law firm of Lucash, Gesmer & Updegrove, a specialist in copyright law. Regardless of what happens, Lotus's aggressive posture could deter other potential rivals from trying to invade its turf. Borland and Quattro Pro were obvious targets for Lotus's next legal attack because Quattro has become a hot product. While Lotus dominates the spreadsheet business with a market share of about 60%, Borland claims that Quattro Pro is winning some business from Lotus. In heavy national over-the-counter trading yesterday, Borland stock plummeted $4.375, or more than 20%, to close at $17 a share. Lotus's stock closed at $34.625 a share over the counter, down 12.5 cents. "The heart of the case for us is the similarity in menus," or screens and keystrokes that the user sees and uses, says Lotus general counsel Tom Lemberg, noting Lotus's special interest in Quattro Pro, Borland's latest version of its Quattro spreadsheet. "Without the Quattro Pro, we wouldn't have a case." In terms of keystrokes, Lotus, for instance, claims that Quattro Pro's use of the "C" key to denote what type of currency to use on a spreadsheet, as well as the use of "FR" for file retrieve, constitute infringements on Lotus's 1-2-3. "We believe that the Quattro software is of original design," responds Borland spokesman Dick O'Donnell, "and if you ask Quattro users why they use our software, they'll tell you it's because of the features they get that they can't get elsewhere." Borland has specifically targeted Lotus's 1-2-3 with its Quattro Pro. Borland sells Quattro Pro for just $99 to owners of 1-2-3, compared with the normal Quattro Pro price of $495. Borland, anticipating Lotus's suit, actually fired the first shot. Friday, the company filed for a declaratory judgment in federal court in San Jose, Calif., stating that Quattro doesn't infringe on Lotus's copyright. Because of Borland's lightning strike, says Rick Sherlund, an analyst with Goldman Sachs, the case will most likely proceed in California rather than before the federal judge in Boston who ruled in Lotus's favor in the Paperback case. "It was a shrewd move," says Mr. Sherlund. Santa Cruz Operation said the software Lotus has legally attacked, called SCO Professional, is a spreadsheet package for a multi-user UNIX operating system. "We haven't seen the complaint, but, to the best of our knowledge, we haven't violated any copyrights," said company spokeswoman Janet Morton. She added that SCO Professional has been selling in the multi-user arena since 1986, while Lotus only recently entered the UNIX-spreadsheet market. "We have every intention of appealing" last week's decision, said Michael Burdick, a vice president for marketing of Paperback Software International of Berkeley, Calif. "The judge's extending of copyright law to user interface has created broad adverse effects on the computer software industry, as is evidenced by the Lotus-Borland suit just filed. The legal wrangling has already begun." The suit underscores how litigious the software industry has become. Apple Computer Inc., for example, has lawsuits pending against both Microsoft Corp. and Hewlett-Packard Co., charging their products infringe on Apple copyrights. Many small developers of software have decried the trend, claiming that the lawsuits stifle the creativity and entrepreneurial spirit that helped build the software industry. But the companies filing the suits counter that they are simply protecting their property from competitors who seek to benefit unfairly by copying unique features. ============================================================================ SUBJECT: Lotus sues more ``look and feel'' software mimics SOURCE: UPI via First! (TM) of INDIVIDUAL, Inc. DATE: July 2, 1990 ---------------------------------------------------------------------------- BOSTON (UPI) _ Lotus Development Corp., encouraged by victory in a case last week, sued two California software makers in U.S. District Court Monday for allegedly infringing the copyright on its Lotus 1-2-3 spreadsheet program. Lotus charged that Borland International Inc. of Scotts Valley and the Santa Cruz Operation Inc. of Santa Cruz are violating Lotus's rights to the commands and memory structure on its flagship software product when they sell products that mimic Lotus 1-2-3. Such so-called ``look and feel'' cases turn less on the facts of copying than on whether the program's user interface is protected by copyright. The user interface includes the graphics, menu structure and key-stroke commands that a user would interact with and thus provides the look and feel of the program. A spokeswoman for the Santa Cruz Operation, Brigid Fuller, described her company's SCO Professional spreadsheet as ``a 1-2-3 work-alike. It works just like Lotus 1-2-3,'' she said. However, a spokesman for Borland, Richard O'Donnell, said, ``We believe Quattro is an original program and does not infringe on Lotus in any way.... But somebody who has used 1-2-3 would not have a steep learning curve to use this product,'' he added. The suits against Borland, for its Quattro and Quattro Pro programs, and SCO followed by only two business days the Lotus court victory in a ``look and feel'' case against Paperback Software Intern ational and a Canadian supplier, Stephenson Software Ltd. of Vancouver, British Columbia. In the Paperback case, Lotus won the right to extend copyright protection to the graphic displays, menus and key strokes that make up the user interface of Lotus's program. However, a Paperback Software spokesman said the company would appeal last week's ruling to the 1st U.S. Circuit Court of Appeals. Thomas Lemberg, chief counsel for Lotus, said the new suits were prompted by last week's decision. ``We began looking at the question of copyright violations several years ago. And we've been awaiting the decision in the Paperback case before proceeding against anybody else who we think may have violated our copyrights.'' He declined to say whether more suits would follow, but said: ``We from time to time look at people and we consider suing them.'' Borland filed an action in U.S. District Court in San Jose on Friday, the day afte r the Paperback decision, asking for ``court confirmation that our Quattro Pro product does not infringe any copyrights of Lotus's products,'' O'Donnell said. A securities analyst, Scott Smith of Donaldson Lufkin & Jenrett in New York, said ``I think Lotus is going to try to push the limits of its victory in the (earlier) software suit and cut down the competition in spreadsheets. I think they're going to go after the people who are in the realm of the decision last week.'' [07-02-90 at 08:41 EDT, Copyright 1990, UPI, File: u0702204.000] From: bob@mstar.morningstar.com (Bob Sutterfield) Organization: Morning Star Technologies Subject: Why I have joined LPF Sender: info-gnu-emacs-request@prep.ai.mit.edu To: info-gnu-emacs@prep.ai.mit.edu People look at me and say things like "gee, Bob, you don't look like a frothing-at-the-mouth socialist to me!" and "you mean you really go in for all RMS' dogma?" so I thought I might explain why I have decided to join LPF. No, I am not a socialist. I was raised at the knee of a true disciple of Keynesian economics. In fact, I recently gave up my status as a state lackey to become as grimy a capitalist as anyone you'd ever want to meet. I don't even like trade unions, considering them (as have generations of my fathers before me) to be institutionalized price collusion. But that's another topic... Our company makes some products that operate similarly to some products made by other companies, in either their user interfaces or their programmatic interfaces. The recent Lotus decision (if I understand it correctly) might render some of our products litigiously vulnerable. This would reduce our company's opportunities in the marketplace. What's more, some parts of our development environment consists of software that, though free, operates similarly to software that one might license from other companies. We have chosen this development environment because it is reliable, flexible, and technologically preferable to the alternatives; it's also less expensive. In some cases, alternatives don't really exist: we depend upon abilities of the GNU C compiler, assembler, and loader in our day-to-day work. Those software development tools, and our use of them, might become litigiously vulnerable, in light of the recent Lotus decision. This also would reduce our company's opportunities in the marketplace. Besides the commercial issues, as a philosophical programmer I disagree with the judge's decision in the Lotus look-n-feel case. I find his assessment of the issues to be lacking in understanding of the history and traditions of this profession, as well as the practical realities and advantages of computing in a community of cooperating collaborators. To advance technologically, we must avoid wasting our collective time re-solving problems to which satisfactory solutions have already been found. We must take full advantage of all the discoveries that have preceded the present moment. I don't know for sure how much good the League for Programming Freedom will really do, or if anything or any group can affect the judicial climate that gives rise to events like the Lotus decision. And I don't always agree with everything RMS does or with all the beliefs he holds. But LPF is a group of which I've become aware that might be able to respond to things like the Lotus decision in a constructive manner. I have decided to contribute in the form of dues and membership count, and potentially via other means, to LPF's efforts. I encourage you to consider membership as one means of expressing your support for the freedoms we enjoy in the computing community. If your company will be negatively affected by such decisions, I encourage you to consider corporate membership as well. To join the LPF send $42 to: League for Programming Freedom 1 Kendall Sq, #143 PO Box 9171 Cambridge, MA 02139 or phone (617)492-0023 From: nelson@image.soe.clarkson.edu (Russ Nelson) Organization: Clarkson University, Potsdam, NY Subject: Why I joined the LPF also. Sender: info-gnu-emacs-request@prep.ai.mit.edu To: info-gnu-emacs@prep.ai.mit.edu I joined the League for Programming Freedom also. I was outraged at the Lotus decision, and again now that Lotus is sueing Borland. Lotus should not be granted monopoly privileges for their user interface. Their user interface became the defacto standard because they sold many copies of it. You may argue that that was because of their user interface, but there are many more factors involved, such as features, price, marketing, etc. In any case, Lotus has earned a great deal of money from 1-2-3. That is the intrinsic reward for creating a defacto standard. They do not need an extrinsic reward for their standard. Some may argue that monopoly protections (be they copyrights, patents, or trade secrets) are necessary for innovation. They are ignoring the current high level of innovation in the computer industry. Anyone who listens to users will quickly realize that we do not need *more* change. If anything, we need less change. I would think that the judge in question (don't remember his name) would realize this. Perhaps someday we'll have leaders who are selected for their ability to manage technology, rather than leaders who are selected for their ability to be selected. -- --russ (nelson@clutx [.bitnet | .clarkson.edu]) Russ.Nelson@$315.268.6667 In Communism's central planning, citizens are told "you will make widgets". In Capitalism's advertising, citizens are told "you will buy widgets".