Lotus Development Corporation,
Borland International, Inc.,
On Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
AMICUS CURIAE BRIEF OF DIGITAL EQUIPMENT CORPORATION, THE GATES RUBBER COMPANY, INTEL CORPORATION AND XEROX CORPORATION IN SUPPORT OF PETITIONER
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
[FN2] We refer, of course, to expression that has not "merged" with the underlying idea. Expression is deemed to have merged with the underlying idea when there is only one way available to express the idea. See generally 3 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 13.03[B] (1994), (hereinafter, "Nimmer"). The court below found that there were alternative ways of expressing the ideas in the Lotus menu command hierarchy (thus ruling out merger), but found that to be "immaterial" to its analysis. 49 F.3d at 816.
By referring to "original expression" we exclude "scènes à faire"--stock treatments of a given subject--that, if protected at all, are protected only against wholesale appropriation. See Atari Games Corp. v. Oman, 888 F.2d 878, 886 (D.C. Cir. 1989) (R.B. Ginsburg, J.).
[FN4] See, e.g., Copyright Law Revision: Hearings on H.R. 4347, H.R. 5680, H.R. 6831 and H.R. 6835 before Subcomm. No. 3 of the House Comm. on the Judiciary, 89th Cong., 1st Sess. 1144-50 (statement and testimony of John F. Banzhaf III), 1898-99 (letter from Graham W. McGowan to Hon. Edwin E. Willis, House Judiciary Committee), 1428, 1443, 1446-48, (testimony of Bella L. Linden) (1965); 5 House Comm. on the Judiciary, Copyright Law Revision 62-63 (testimony of Morton David Goldberg), 271 (statement of H.R. Mayers) (Comm. Print 1965) (1964 Revision Bill with Discussions and Comments); Copyright Law Revision: Hearings Pursuant to S. Res. 37 on S. 597 before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 90th Cong., 1st Sess. 192-201 (1967) (testimony and statement of Prof. Arthur R. Miller).
[FN5] See Gustafson v. Alloyd Co., ___ U.S. ___, 115 S. Ct. 1061, 1072 (1995) ("If legislative history is to be consulted, it is preferable to consult the documents prepared by Congress when deliberating."). The report of the House Judiciary Committee that accompanied the copyright revision bill has been cited frequently by courts as evidence of Congress' intent in enacting the Copyright Act. See, e.g., Campbell v. Acuff-Rose Music, Inc., ___ U.S. ___, 114 S. Ct. 1164, 1170 (1994); Fogerty v. Fantasy, Inc., ___ U.S. ___, 114 S. Ct. 1023, 1028 (1994); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 355-57, 359 (1991); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448-49 nn.29, 31-32 (1984).
[FN6] As this brief chronology demonstrates, copyright protection for computer programs is neither an historical accident nor an impulsive act that received little attention by the legislators. Copyright protection for computer programs is the result of decades of open debate and careful consideration.
[FN7] The phrase "method of operation," as used in copyright law, also appears to originate in Baker. 101 U.S. at 103.
[FN8] For simplicity, hereafter we refer to all of the categories of unprotectible matter listed in Section 102(b) collectively as "ideas," unless the context dictates otherwise.
[FN9] See Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer Generated Works: Is Anything New Since CONTU?, 106 Harv. L. Rev. 977, 986 (1993) ("Since Baker, courts have reaffirmed repeatedly that functionality poses no per se bar to copyrightability.") (The author was a member of CONTU who served on its software subcommittee.).
[FN10] See 1 Nimmer, at § 2.03[D]; Jane C. Ginsburg, Four Reasons and a Paradox: The Manifest Superiority of Copyright over Sui Generis Protection of Computer Software, 94 Colum. L. Rev. 2559, 2570 (1994) ("[S]ince we know that Congress did determine in 1980 to protect computer programs, the terms `process,' `system,' or `method of operation' must not be understood literally." (footnote omitted)). See also id. at 2570 n.64 ("some nonsoftware works of authorship are protected even though they constitute `processes' or `methods of operation' in the colloquial sense").
[FN11] In itself, this indicates that the Lotus menu command hierarchy is expressive. See Atari Games, 888 F.2d at 885 ("the variety of ways to perform the same function sustains the classification of such works as `expression'").
[FN12] As the most visible element of a computer program, the user interface is also the most easily plagiarized. Excluding this important programming element from protection would inevitably lead to more unauthorized copying.
[FN13] In Apple Computer, Inc. v. Formula Int'l, Inc., 562 F. Supp. 775, 783 (C.D. Cal. 1983), aff'd, 725 F.2d 521 (9th Cir. 1984), the court observed: "Few companies are going to invest the time and resources to develop new programs if their products can be freely duplicated by anyone. Such `competitors,' who could undersell the originator simply because they don't have its development costs, would destroy the market which any innovator needs to recoup his investment."
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