IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) Lotus Development Corp., ) ) Plaintiff, ) ) v. ) ) Civil Action No. 90-11662-K Borland International, ) ) Defendant. ) ) BRIEF AMICUS CURIAE ON BEHALF OF THE REGISTER OF COPYRIGHTS I. STATEMENT OF INTEREST OF THE COPYRIGHT OFFICE The Register of Copyrights is Director of the Copyright office and Associate Librarian for Copyright services in the Library of Congress. As Register of Copyrights, he is authorized to establish regulations for the administration of the functions and duties made the responsibility of the Register under the Copyright Act. 17 U.S.C. 702. The Register is directed by law to register any claim to copyright that constitutes copyrightable subject matter and meets the other legal and formal requirements of the Copyright Act. 17 U.S.C. 410(a). Regardless of the nature of the work presented, the Register uses the same standard for determining copyrightable authorship, although the format in which the work is created may be quite different. For these reasons, the Copyright Office, pursuant to Section 702, has promulgated regulations covering registration of original works of authorship. The Copyright Office has also developed a manual of examining practices for the use of its professional staff in making determinations regarding copyright registration--the Compendium of Copyright Office Practices I (1973) and II (1984). The Compendium contains Copyright Office interpretation and practices concerning the Copyright Act and the regulations promulgated to carry out that Act. In addition to making the Compendium generally available, the office publishes information circulars on general copyright topics and on different categories of works, EM, Copyright Registration for Computer Programs, Circular 61, October, 1989 (hereafter Cir. 61). The Copyright Office has also developed specific examining practices for particular categories of material, e.g., Computer Screen Display Practices. The Copyright Office's registration practices, as reflected in the Compendium and other sources, should be brought to the attention of this court impartially and objectively. An incorrect interpretation of the Copyright Office's underlying practices in registering such works could significantly affect the development of the copyright law. Although the copyright- ability of these claims is for the court to decide, the specialized knowledge of the Register of Copyrights in this area of the law should be of assistance to the court. In submitting this brief, the Register is not advocating a particular result to be reached, but merely pointing out the approach taken by the Copyright Office in this area. Accordingly, this brief should not be taken as commenting on the copyrightability or scope of protection to be accorded the works at issue in this case, i.e., those relating to Lotus 1-2-3. JURISDICTIONAL SUMMARY The district court has exclusive jurisdiction of this action for copyright infringement under 28 U.S.C. 1338. QUESTIONS PRESENTED The questions that the Register of Copyrights wishes to address concern the extent to which certain registrations of original works of authorship cover discrete components of these works. 1. What are the practices of the Copyright office regarding registration of computer screen displays? 2. What standards does the Copyright Office apply to determine copyrightable authorship? 3. What practices does the Copyright Office apply when the claim to copyright purports to cover the entire work? II. REGISTRATION PRACTICES REGARDING COMPUTER SCREEN DISPLAYS A. Computer Screen Practices In 1988, following a public hearing and opportunity for written comment, the office issued a registration decision requiring that all copyrightable expression embodied in a computer program owned by the same claimant, including computer screen displays, be registered on a single application. 53 Fed. Reg. 21817-21820 (1988). See App. III, IV. Thereafter, all claims, including copyrightable screen displays, were to be registered at the same time and on the same registration form with the computer program. 37 C.F.R. 202.3(b)(6) (1990). It follows from the single registration rule that a registration for a computer program covers any copyrightable authorship in the screen displays, just as registration for a book covers all of the book's copyrightable components. Not all components of a work, of course, are separately copyrightable. See, Feist Publications, Inc, v. Rural Telephone Service Co., 111 S. Ct. 1282, 1289 (1991). The typeface of a book, for example, would not be covered by a registration on the book. In adhering uniformly to the single registration rule, the Copyright Office sought firmly to establish that a single registration for the computer program would cover any copy- rightable authorship in the screen displays. A fundamental underlying object was to establish a clear, accurate, easily understandable public record and to exclude from that record any unjustified or otherwise insufficient claims. 53 Fed. Reg. 21819. We noted further that "subdividing claims might also result in multiple infringement actions and multiple claims for statutory damages, based on separate registration." Id. B. Menu Screens Whether a claim in a menu screen may be enumerated as copyrightable authorship on the application and whether it is protected as part of the single registration depends upon whether the authorship in that screen, standing alone, will support a claim to copyright. Menu screens are integral parts of computer programs, and they may or may not contain copyrightable expression. In general, the Copyright Office does not address the copyright- ability of a particular component of a work, unless a claim to that component is asserted or implied in the registration. In that event, the Copyright Office examines the component to determine whether or not, in the context of the entire registration, the claim is justified. Menu screens whose content is determined solely by function may lack sufficient original expression to support a copyright claim. Cf., Feist, 111 S. Ct. at 1296 ("obvious" listing of name, town and telephone number alphabetically by surname in a telephone directory does not satisfy requirement of minimal creativity for a work of authorship). Ordinarily, computer applications programs enable an end user to manipulate material on a screen to achieve certain results. In the course of going about various tasks, the user receives queries, prompts, and menus for accomplishing those tasks. In some cases, this material is not considered copyrightable by the Office as it is simply a listing of the particular commands that are available to the user of the computer. For example, the Copyright Office would not consider a screen display that merely listed a menu of eight possible choices that the user could select from a simple display to be copyrightable. See, e.g., Lotus v. Paperback Software, 740 F. Supp. 37, 65 (D. Mass. 1991) (two line moving cursor menu by itself held not copyrightable). In other cases, however, the form of expression on these screens is sufficiently extensive and original that it is subject to copyright, just as a chapter in a book, or even a page of text, might be subject to copyright if submitted separately. As we state in our circular on registration: The registration will extend to any related copyright- able screens, regardless of whether identifying material for the screens is deposited. However, where identifying material for screens displays is deposited, it will be examined for copyrightability. Where the application refers specifically to screen displays, identifying material for the screens must be deposited. Where the screens are essentially not copyrightable (e.g. de millimis menu screens, blank forms, or the like), the application should not refer to screens and the deposited identifying material should not include screens. (Emphasis added and in original). See Cir. 61, p.3. App. V. III. STANDARDS REGARDING COPYRIGHTABILITY A. The Responsibility Of The Register To Determine Copyrightability The Register is responsible for determining copyrightability in the first instance. The Copyright Office is charged with examining works that are submitted for registration of claims copyright to determine whether or not the material deposited constitutes copyrightable subject matter and the other legal and formal requirements of the Copyright Act have been met. 17 U.S.C. 410(a). Where the material deposited does not constitute copyrightable subject matter, the Register is directed to refuse registration and explain to the applicant the reasons for such refusal. 17 U.S.C. 410(b). Ultimately, the courts determine what is copyrightable, but the Copyright Office takes seriously its responsibility for determining copyrightability, to assure efficient administration of the copyright law and to assist the courts in their ultimate determinations. In taking the position that registration for the computer program covers any copyrightable authorship contained in the computer program and the screen Displays, regardless of whether identifying material for the screens is deposited, the Copyright Office eschews the implication that all material displayed on the screens is copyrightable. To create a useful registration record of computer programs, the Copyright Office requires a statement of the basis of the claim in the form of a description of the authorship. Form TX, Line 2. See App. VI. B. General Standards Of Copyrightability In determining whether the basis of the claim is appropriate, the Copyright Office applies established standards of copyrightability. Although the 1976 revision substantially modified the copyright law, it did not change the standards of copyrightability. Copyright protects "original works of authorship." 17 U.S.C. 102(a). The legislative reports note: The two fundamental criteria of copyright protection -- originality and fixation in tangible form -- are restated in the first sentence of this cornerstone provision. The phrase "original works of authorship," which is purposely left undefined, is intended to incorporate without chance, the standard of originality established by the courts under the present (1909) copyright statute . . . . . . . . Section 102 implies neither that that subject is unlimited nor that new forms of expression within that general area of subject matter would necessarily be unprotected. (emphasis added) H. Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 50-51 (1975). These standards are set out in the Compendium. In order for a work to be the subject matter of copyright under the current law, it must be an original work of authorship. Quality, aesthetic merit, and ingenuity are not considered in determining the copyrightability of a work. In order to be an original work of "authorship," the work must contain at least a certain minimum amount of original creative expression. (Compendium II, 202.02). See App. VII. The law firmly establishes that ideas, processes, methods and systems are outside the scope of copyright protection. 17 U.S.C. 102(b). The application of this statutory prohibition to computer programs can create a conundrum for a court. With respect to the nature of copyright and computer programs, Congress acknowledged: Some concern has been expressed lest copyright in computer programs should extend protection to the methodology or processes adopted by the programmer, rather than merely to the "writing" expressing his ideas. Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law. Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law. Its purpose Is to restate, in the context of the new single Federal system of copyright, that the basic dichotomy between expression and idea remains unchanged. H. Rep. at 57. C. Application Of General Standards To Computer Screens The Copyright Office applies the same standards of originality to all kinds of authorship submitted for registration. Like works in other categories that do not contain sufficient copyrightable material, literary works (including computer programs) submitted for registration that do not contain sufficient copyrightable authorship are denied registration. McIntyre v. Double-A Music Corp., 179 F. Supp. 160 (S.D. Cal. 1959); Bailie v. Fisher, 258 F.2d 425 (D.C. Cir. 1958); Smith v. George E. Muehlebach Brewing Co., 140 F. Supp. 729 (W.D. Mo. 1956); E.H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D. Pa. 1954). Where a copyright claim is asserted in a particular subset of material within a larger unit of publication, care must be-taken in examining the work to assure that sufficient copyright authorship exists for that subset. However, with respect to machine-readable works, the complete work may not be deposited in the Copyright Office. More than usual reliance, therefore, may be placed on the application for a description of the copyrightable content of a machine-readable work. 1. Acceptable Authorship Claims Where an applicant describes a claim in terms that do not comport with the actual program deposited and claimed, the Copyright Office requests removal of that description to avoid a false representation to the public and the court that the Office has determined that the material so described does constitute copyrightable subject matter. Compendium Of Copyright Office Practices II 619.06. See App. VII. Copyrightability of those aspects will be determined by the court. The Copyright Office encourages statements of authorship that clearly reflect copyrightable authorship, and which do not suggest copyright protection for ideas, methods or processes. For example, the Copyright Office requests statements of authorship in well-settled copyrightable terms, and discourages the use of terms that are ambiguous or imply claims in uncopyrightable material. Terms such as "computer program," "entire text of computer program," "entire program code" are encouraged, but terms such as "ideas," "program logic," "algorithms," "systems," "methods," "concepts," or "layout," are unacceptable. Cir. 61, p. 2; Screen Display Practices, pp. 6-8. See App. V and VIII. Circular 61, distributed to the public, states: (T]he Copyright Office has consistently believed that a single registration is sufficient to protect the copyright in a computer program, including related screen displays, without a separate registration for screen displays or reference to the displays in the application. An application may give a general description in the "nature of authorship" space, such as "entire work" or "computer program. This description will cover any copyrightable authorship contained in the computer program and screen displays, regardless Of whether identifying material for the screens is deposited. Cir. 61, p. 3. See App. V. The Copyright Office will register claims to copyright in specific screen displays where the applicants assert specific claims in material contained in such displays. They may describe the authorship as, for example, "text of screen displays," "audiovisual material," or "artwork." However, the Copyright office will not accept less accurate or equivocal descriptions such as "menu screens" "structure, sequence and organization," "layout," "format," or the like. Such descriptions could suggest that registration was made for ideas, concepts or processes, which are not copyrightable subject matter under 17 U.S.C. 102(b), rather than for copyrightable expression. In addition, the Copyright Office does not wish to mislead the public and the courts into believing that it has determined the material specifically described on the application to be copyrightable. 2. Screens designed primarily to record information The copyright law does not protect blank forms which do not convey information but merely serve as a medium upon which to record information. 37 C.F.R. SS 202.1(c) (1990). See Baker v. Selden, 101 U.S. 99 (1879). This regulation has been upheld by the courts. Brown Instrument Co. v. Warner, 161 F.2d 910 (D.C. Cir. 1947), cert. denied, 332 U.S. 801 (1947) Safeguard Business Systems Inc. v. The Reynolds and Reynolds Co., 14 U.S.P.Q.2d 1829 (E.D.Pa. 1990), aff'd without op., 919 F.2d 136 (3d Cir. 1990). It was most recently affirmed in Bibbero Systems. Inc. v. Colwell Systems, Inc., 893 F.2d 1104 (9th Cir. 1990). In that infringement action, defendant developed nearly identical medical "superbills" for use in obtaining reimbursement from insurance companies. The court found that: the purpose of plaintiff Bibberols superbill is to record information . . . . The superbill is simply a blat form that gives doctors a convenient method for recording services performed. The fact that there is a great deal of printing on the face of the form -because there are many possible diagnosis and treatments -- does not make the form any less blank. [Citing the Copyright Office blank form rule and our proceeding at 43 Fed. Req. at 63299.] 893 F.2d at 1106-07. Screens designed primarily to record information require the same analysis as any other form in determining whether they themselves convey sufficient information to be copyrightable, or merely serve as a medium to record information. The fact that a blank form appears on a computer screen, rather than on a sheet of paper, does not alter the issue involved. Where screens of this type are submitted as separate works, the Copyright Office applies the same long-established examining practices used with blank forms. The pertinent regulation states that blank forms, such as time cards, graph paper, account books, report forms, -order forms, and the like, which are designed for recording information and do not in themselves convey information, are not subject to copyright, and the Office cannot register such works. However, forms that convey information may be protected. This includes screen displays of such forms, since screens are judged by traditional standards of copyrightability. 3. Ideas and Functionally Determined Expression are not Copyrightable In addition to the uncopyrightability of works containing insufficient authorship, copyright protection is denied to a form of expression that is determined by the idea it expresses. The Final Report of the National Commission on New Technological Uses of Copyrighted Works (CONTU Report) observes that: copyrighted language may be copied without infringing when there is but a limited number of ways to express a given idea. This rule is the logical extension of the fundamental principle that copyright cannot protect ideas. In the computer context, this means that when specific instructions, even though previously copy- righted, are the only and essential means of accomp- lishing a given task, their later use by another will not amount to an infringement. Citing, Continental Casualty Co. v. Beardsley, 253 F.2d 702, 706 (2d Cir. 1958)] CONTU Report, p. 20. See App. IX. In Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967), the court established the principle that where a work was so simple and so straightforward as to leave available only a limited number of forms of expression of the substance of the subject matter, the expression would be uncopyrightable. There the plaintiff had created a set of contest rules. Defendant had admittedly copied them and acknowledged that there was more than one way of expressing the substance of the rules. Nevertheless, in holding the work uncopyrightable, the court reasoned that: to permit copyrighting would mean that a party or parties by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the sub- stance. In such circumstances it does not seem accurate to say that any particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated. [Citing, Baker v. Selogn.] Id., at 678-79. Similarly, in E.H. Tate Company v. Jiffy Enterprises, 16 F.R.D. at 573, a small sketch and an accompanying instruction to "Apply hook to wall" were held uncopyrightable because there were few, if any, other ways to convey the underlying idea of how to use the article without using substantially the same sketch and instructions. 4. Mere Listings of Ingredients are not Copyrightable Mere listings of contents or ingredients have been held not copyrightable, because they are "forms of expression dictated solely by functional consideration." 1 NIMMER 201[B] at 2-14. See also, 37 C.F.R. 202.1(a); Kitchens of Sara Lee, Inc. v. Nifty Foods Corporation, 206 F.2d 541 (2d Cir. 1959). In Perma Greetings, Inc. v. Russ Berrie & Co. 598 F. Supp. 445, 448 (E.D. Mo. 1984), the court looked at mug-type coasters containing short familiar phrases and held them not subject to copyright, noting that "phrases and expressions conveying an idea that is typically expressed in a limited number of stereotypic fashions, are not subject to copyright protection." at 448, quoting Alexander v. Haley, 60 F. Supp. 40, (S.D.N.Y. 1978). In Magic Marketing Inc. v. Mailing Services of Pittsburgh, Inc., 634 F. Supp. 769 (W.D. Pa. 1986), the court held that envelopes with instructions printed on them were not copyright- able. In looking at the language on the envelope, the court noted that the listing of the contents of an envelope or package, like a listing of ingredients, is not protected under copyright regulations. 37 C.F.R. 202.1(a). The court held that instructions on the envelope that were "nothing more than a direction or instruction for use" are not protected. Furthermore, the court observed: More complex directions, such as the serving directions on a frozen dessert package, are not copyrightable. Kitchens of Sara Lee Inc, v. Nifty Foods Corp. 266 F.2d 541 (2nd dir. 1959) . . . . In sum, the phrases printed on the envelopes are generic in nature and lack the minimal degree of creativity necessary for copyright protection. Id. at 772. Finally, in Ashton-Tate v. Ross, 916 F.2d 516, 521-22 (9th Cir. 1990), aff'q, 728 F. Supp. 597, 602 (N.D. Cal. 1989), the court held that a one-page handwritten list of user commands that were incorporated as part of the user interface was not a copyrightable part of the computer program. "The list simply does not qualify for copyright protection. 916 F.2d at 521-22. IV. "ENTIRE WORK" ENCOMPASSES ONLY COPYRIGHTABLE AUTHORSHIP Copyright registration in a computer program covers the entire copyrightable expression embodied in that program. Thus, flow charts, source codes, and object codes may all be protectible. As specified in our regulation and in Circular 61, screen displays may be protected to the extent they contain copyrightable authorship. If screen displays are mentioned on the application, they will be examined. Many registrants, however, claim copyright in the "entire work" without submitting a specific claim in the screen display. The Copyright Office accepts a claim in the "entire work" on the understanding that "entire work" refers only to the copyrightable content of the work of authorship. When the Copyright Office accepts a claim in the "entire work," neither the public nor the courts should assume that the Copyright Office has made a determination that individual component parts of the work are necessarily entitled to copyright protection as original works of authorship. In Manufacturers Technologies Inc. v. Cams, Inc., 706 F. Supp. 984 (D. Conn. 1989), the court considered screen displays both where there was only one registration to cover both the program and screen displays, and where other screen displays had been registered separately. The court, noting that a unitary registration would only cover copyrightable authorship, wrestled with the question of which, if any, of the different screen displays for computer programs designed to aid in making cost estimates were subject to copyright protection. 706 F. Supp. at 993. The court held a series of screen displays copyrightable, holding that: The defendant has failed to rebut the presumption of copyright validity of this aspect of the screen displays. The flow of the plaintiff's screen displays reflect plaintiff's creative manner of expressing how the process of cost-estimating should be accomplished. 706 F. Supp. at 994. It further noted that the flow and sequencing of these screens evidenced copyrightable selection and arrangement which, under Eckes v. Card Price Undate, 736 F.2d 859, 862-63 (2d Cir. 1984), it equated with copyrightable expression. 706 F. Supp. at 994. By contrast, the court held that certain aspects of the screen formatting style and method of "navigating" from one screen to another by use of certain keys were uncopyrightable because of the limited number of ways of expressing the underlying idea. 706 F. Supp. at 994-96. Similarly, it held that four screens consisting of alphabetical displays of the departments were got subject to protection. The court reasoned that this "expression is not a proper subject of protection because it is necessarily incident to the idea of listing the departments, and where is no original authorship in this unadorned two-column alphabetical.listing." Id., at 996. With regard to two other screens, the court also noted that functional considerations played a significant role in what data was given to the user and held that those screens were not copyrightable. Id., at 998. However, the court also held that a "job identification" screen was copyrightable under the "blank forms" analysis because it conveyed information in its manner of identifying a particular job. at 997. In addition, several other cases, some of which predate the 1988 single registration rule, have treated the issue of the degree to which menu screens, or a series of related menu screens, constitute copyrightable expression. In Digital Associates, Inc. v. Softklone Distributing Corp., 659 F. Supp. 449, 457 (N.D. Ga. 1987), the court held that a separately registered status screen for a program was copyrightable. The court held that if considered as a form, it conveyed sufficient information to be copyrightable. Id., at 462. Alternatively, it held that it could be considered a copyrightable compilation of program terms. Id., at 463. In Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986), the court held that a sequence of menu screens, forming a "user interface," was copyrightable, noting "stylistic creativity" in the screens beyond the basic instructions conveyed by them. Id, at 1134. The issue of idea/expression merger in the context of a menu screen or sequence of screens is also discussed in Johnson Controls, Inc, v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1175 (9th Cir. 1989) (affirming grant of preliminary injunction) and Telemarketing Resources v. Symantec Corp., 12 USPQ2d 1991, 1995-96 (N.D. Cal. 1989)(granting summary judgment upon finding that the copyrightable expression in plaintiff's menu screens was not substantially similar to that in defendant's menu screens). . CONCLUSION The court ultimately determines copyrightability. The Register of Copyrights is directed to register or refuse to register a claim submitted for copyright based on examination of the claim and a d termination of whether or not it constitutes copyrightable subject matter. In the course of registering more than a half million claims annually, moreover, the Copyright office has broad experience in determining copyrightability, and applies the generally accepted "original work of authorship" standards set forth in the Compendium II. The Office's registration standards do not vary from format to format. However, a particular medium, such as computer screen displays, may raise issues of whether expression is functionally determined, or limited by Morrissey v. Proctor & Gamble 379 F.2d criteria. (1st Cir. 1967), or the blank form criteria. 37 C.F.R. 202.1(c). RESPECTFULLY SUBMITTED, STUART G. GERSON Assistant Attorney General WAYNE BUDD United States Attorney PAUL G. LEVENSON Assistant United States Attorney 1107 John W. McCormack Federal Bldg. U.S. Post Office & Courthouse Boston, Massachusetts 02109 Tel: (617) 223-9400 VITO J. DIPIETRO Director JOHN FARGO Assistant Director Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Tel: (202) 307-0458 OF COUNSEL: RALPH OMAN Register of Copyrights DOROTHY SCHRADER General Counsel Copyright Office CHARLOTTE DOUGLASS Principal Legal Adviser Copyright Office TABLE OF CONTENTS Page I. STATEMENT OF INTEREST OF THE COPYRIGHT OFFICE. . . . . 1 II. REGISTRATION PRACTICES REGARDING COMPUTER SCREEN DISPLAYS . . . . . . . . . . . . . . . 3 A. Computer Screen Practices . . . . . . . . . . . . 3 B. Menu Screens. . . . . . . . . . . . . . . . . . . . 5 III. STANDARDS REGARDING COPYRIGHTABILITY . . . . . . . . . . 6 A. The Responsibility of The Register To Determine Copyrightability . . . . . . . . . . . 6 B. General Standards Of Copyrightability . . . . . . . 7 C. Application of General Standards To Computer Screens . . . . . . . . . . . . . . . . 9 1. Acceptable Authorship Claims. . . . . . . . 10 2. Screens designed primarily to record information . . . . . . . . . . . 11 3. Ideas and Functionally Determined Expression are not Copyrightable. . . . . . 13 4. Mere Listings of Ingredients are not Copyrightable . . . . . . . . . . . 14 IV. "ENTIRE WORK" ENCOMPASSES ONLY COPYRIGHTABLE AUTHORSHIP. . . . . . . . . . . . . . . . 16 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 TABLE OF AUTHORITIES Cases Page Alexander v. Haley, 460 F. Supp. 40 (S.D.N.Y. 1978) . . . . . . . . . . . . . 15 Ashton Tate v. Ross 916 F.2d 516 (9th Cir. 1990), aff'g, 728 F. Supp. 597 (N.D. Cal. 1989). . . . . . . . . 15 Bailie v. Fisher, 258 F. 2d 425 (D.C. Cir. 1958). . . . . . . . . . . . . . .9 Baker v. Selden, 101 U.S. 99 (1879). . . . . . . . . . . . 11, 14 Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 (9th Cir. 1990) . . . . . . . . . . . . . . 12 Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986). . . . . . . . . . . . 18 Brown Instrument co. v. Warner, 161 F.2d 910 (D.C. Cir. 1947), cert. denied, 332 U. S. 801 (1947). . . . . . . . . . . . 11 Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958) . . . . . . . . . . . . . . . 13 Digital Communications Associates, Inc. v. Softklone Distributing Corp., 659 F. Supp. 44.9 (N.D. Ga. 1987) . . . . . . . . . . . . 18 E.H. Tate Co. V.-#iffy Enterprises, Inc., 16 F.R.D. 57% (E.D. Pa. 1954) . . . . . . . . . . . . .9, 14 Eckes v. Card Price Update, 736 F.2d 859 (2d Cir. 1984) . . . . . . . . . . . . . . . 17 Feist Publications, Inc. v. Rural Telephone Service Co., 111 S. Ct. 1282 (1991). . . . . . . . . . . . . . . . . 4, 5 Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173 (9th Cir. 1989) . . . . . . . . . . . . . . 18 Kitchens of Sara Lee, Inc. v. Nifty Foods Corporation, 206 F.2d 541 (2d Cir. 1959) . . . . . . . . . . . . . 14, 15 Lotus v. Paperback Software, 740 F. Supp. 37 (D. Mass. 1991). . . . . . . . . . . . . .6 Cases Page Magic Marketing Inc. v. Mailing Services of Pittsburgh, Inc., 634 F. Supp. 769 W.D. Pa. 1986). . . . . . . . . . . . . . . . . . . . . . 15 Manufacturers Technologies Inc. v. Cams, Inc., 706 F. Supp. 984 (D. Conn. 1989) . . . . . . . . . . .16-18 McIntyre v. Double-A Music Corp., 179 F. Supp. 160 (S.D. Cal. 1959) . . . . . . . . . . . . .9 Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967). . . . . . . . . . . . . 13, 19 Perma Greetings, Inc. v. Russ Berrie & Co. 598 F. SUPP- 445 (E.D. Mo. 1984). . . . . . . . . . . . . 14 Safeguard Business Systems Inc. v. The Reynolds and Reynolds Co., 14 U.S.P.Q.20 1829 (E.D.Pa. 1990), aff'd without op., 919 F.2d 136 (3d Cir. 1990). . . . . . 11 Smith v. George E* Muehlebach Brewing Co., 140 F. Supp. 729 (W.D. Mo. 1956). . . . . . . . . . . . . .9 Telemarketing Resources v. Symantec Corp., 12 USPQ2d 1901 (N.D. Cal. 1989) . . . . . . . . . . . . . 15 Statutes 17 U.S.C. 102(a). . . . . . . . . . . . . . . . . . . . . . . .7 17 U.S.C. 102(b). . . . . . . . . . . . . . . . . . . . 8, 9, 11 17 U.S.C. 410(a). . . . . . . . . . . . . . . . . . . . . . 1, 7 17 U.S.C. 410(b). . . . . . . . . . . . . . . . . . . . . . . .7 17 U.S.C. 702 . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. 1338. . . . . . . . . . . . . . . . . . . . . . . . .3 Regulations Page 37 C.F.R. 202.1(a). . . . . . . . . . . . . . . . . . . . .14, 15 37 C.F.R. 202.3(b)(6) (1990). . . . . . . . . . . . . . . . . . 4 37 C.F.R. 202.1(c) (1990) . . . . . . . . . . . . . . . . .11, 19 43 Fed. Reg. 965 (1978). . . . . . . . . . . . . . . . . . . . . 4 43 Fed. Reg. 63299 . . . . . . . . . . . . . . . . . . . . . . .12 53 Fed. Reg. 21817-21820 (1988). . . . . . . . . . . . . . . .3, 4 53 Fed. Reg. 21819 . . . . . . . . . . . . . . . . . . . . . . . 4 Legislative Material H. Rep. No. 1476, 94th Cong., 2d Sess. 51 (1976) . . . . . . .8, 9 S. Rep. No. 473, 94th Cong., 1st Sess. 50-51 (1975). . . . . . . 8 Other 1 NIMMER 201[B) at 2-14. . . . . . . . . . . . . . . . . . . . .14 Compendium of Copyright Office Practices I (1973) and II (1984). . . . . . . . .2, 8, 10, 19 Copyright Registration for Computer Programs, Circular 61, October, 1989. . . . . . .2, 6, 10, 11 Final Report of t#e National Commission on New Technological uses of Copyrighted Works . . . . . .13, 16