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2 Copyright Cases in U.S. Courts By the mid 1990s, U.S. courts had ruled on the two copyright issues critical to interoperability. First, following the Second Circuit’s methodology in Computer Associates Int’l, Inc. v. Altai, Inc.,1 several courts had refused to extend copyright protection to interface specifications. Second, both the Ninth Circuit and the Federal Circuit had found the copying incidental to reverse engineering permitted by the fair-use doctrine. In the ensuing decade, courts continued to reach similar conclusions. Additionally, both the executive branch and the legislative branch had endorsed this case law. Thus, the unprotectability of interface specifications and the permissibility of software reverse engineering are well established in U.S. copyright law. 2.1 The Unprotectability of Interface Specifications In July of 1992 (only a month after the issuance of Computer Associates), in Lotus v. Borland,2 a district court narrowly construed the Second Circuit’s withholding of copyright protection from interface specifications. In effect, the district court found that copyright did not protect the interface specifications necessary to attach to an existing product, but that copyright did protect the specifications necessary to replace the existing product. In 1995, the U.S. Court of Appeals for the First Circuit reversed the district court, finding that Lotus’s command structure was an unprotectable method of operation. Lotus appealed the decision to the U.S. Supreme Court, which affirmed the First Circuit’s ruling in a 4–4 ruling (Justice Stevens having recused himself). Since Lotus v. Borland, courts have withheld copyright protection from interface specifications under several different theories, including variations of the idea/expression dichotomy and the fair-use 1. 982 F.2d 693 (2d Cir. 1992). 2. Lotus Development Corp. v. Borland Int’l Inc., 799 F. Supp. 203 (D. Mass. 1992), rev’d, 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided Court, 516 U.S. 233 (1996). 22 Chapter 2 doctrine. These decisions have helped to alleviate the concerns of many developers regarding their exposure to copyright-infringement liability for their interoperable products. 2.1.1 Lotus v. Borland (1995) During its pendency, Lotus v. Borland was characterized in both the popular press and the computer press as a “look and feel” case.3 Indeed, District Court Judge Keeton, although he criticized the term “look and feel,” largely viewed the case as such. His focus on the user interface was completely understandable: in the forerunner to Lotus v. Borland—Lotus v. Paperback4 — the Paperback and Lotus user interfaces shared many features. Further, at the outset of Lotus v. Borland, Lotus alleged that Borland International Inc. had copied a number of user-interface features. By the time the case got to the First Circuit, however, the only similarity at issue was the command structure of Lotus 1-2-3. Free from the baggage of the Paperback decision and the early complaint against Borland, the First Circuit correctly perceived that this case did not concern the “look and feel” of the user interface at all, but instead concerned interoperability. And once the First Circuit understood the role of the command structure in achieving interoperability , it had little difficult reversing the lower court. 2.1.1.1 The Factual Background In the late 1970s, Visicalc developed the first computerized spreadsheet, which ran on Apple II computers. Soon after the introduction of the IBM PC, Lotus Development Corporation released Lotus 1-2-3, a spreadsheet program that was compatible with the IBM PC. Lotus 1-2-3 soon dominated the spreadsheet market, eclipsing Visicalc, and its popularity contributed to the success of the IBM PC. Although Lotus 1-2-3 incorporated some of Visicalc’s commands in its user interface, it had an original menu tree structure in which more than 400 commands were arranged in a clearly defined hierarchy. Using different code, Paperback Software developed a program that re-created the entire Lotus 1-2-3 command structure and other features of the Lotus 1-2-3 user interface. Lotus sued for copyright infringement, and prevailed in 1990.5 Paperback did not have the resources to appeal the judgment. 3. This subsection is based on Jonathan Band, “Lotus v. Borland Viewed through the Lens of Interoperability,” The Computer Lawyer, June 1995, at 1. 4. Lotus Development Corp. v. Paperback Software Int’l, 740 F. Supp. 37 (D. Mass. 1990). 5. Id. After Lotus’s victory, 300 picketers protested Lotus’s litigation strategy outside Lotus’s headquarters in Cambridge...

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