By BOB DRUMMOND
c.1995 Bloomberg Business News
WASHINGTON -- The Supreme Court struggled Monday for a legal rule to
direct the future of copyright protection for computer software
programs.
The high court, working despite a record-setting blizzard that shut
down most of the rest of official Washington, considered a tangled
legal battle between Lotus Development Corp. and rival Borland
International Inc.
One of the most closely watched business cases of the current Supreme
Court term, the dispute could affect the future of the nation's
software industry by determining whether a company can get copyright
protection for the system of commands that a computer user employs to
make a software program work.
The question presents difficult legal issues because software commands
blur traditional distinctions between functional technology and
creative expressions: The commands, some argue, make a computer work,
performing the type of technological function that traditionally was
beyond the realm of copyright. On the other hand, the commands are
written works, like books, articles, poems, and other copyrightable
material.
During hour-long oral arguments, most justices seemed to be searching
for some simple legal test to protect truly creative work, even if it
operates a computer system, without letting the copyright law give one
company blanket, exclusive rights to a broad range of strictly
functional software commands.
Borland's lawyer, Gary Reback, argued that nearly all commands which
let the user operate a system should be left out of a software
copyright, and should instead be patented if their creators think they
represent a true innovation.
Reback, however, seemed to find little support for such a sweeping
rule, even among justices who seemed sympathetic to Borland's position
in the specific case.
The dispute began in June 1990, when Lotus went to court, complaining
that Borland's Quattro and Quattro Pro spreadsheet programs illegally
copied the arrangement of menus that Lotus had developed for user
commands in its ``1-2-3'' accounting program.
Borland's product included a so-called ``1-2-3 emulation'' mode that
let buyers use the program by giving the same commands they use in
Lotus's software, letting customers switch without the need to learn a
new system.
While Lotus won the first round in a federal trial court, a
Boston-based federal appeals court sided with Borland, saying software
commands provide a way to operate the computer, and are not creative
expression that's eligible for copyright protection.
Lotus argues that some of the most creative and competitive work in
the software business today involves efforts to create commands that
are easy to use and understand. Creators, Lotus said, should be able
rely on copyright laws to keep competitors from pirating user-friendly
command systems.
Borland counters that granting a copyright for software commands would
hurt competition by unfairly granting valuable monopolies to leading
companies, and would be like giving one company exclusive rights to
the QWERTY arrangement on a typewriter keyboard.
During the high court arguments, Reback argued that Congress never
intended for copyrights -- which are easy to get and last for decades
-- to provide that kind of competitive edge at the expense of
consumers.
Justice Sandra Day O'Connor, who seemed most open to Lotus's copyright
claim, said she found Reback's request for the justices to consider
the economic ramifications ``a little hard to swallow.''
So did Justice Anthony Kennedy. ``You're saying you can't give a
copyright to something that's unfair? Is that the rule?'' Kennedy
asked.
Lotus's lawyer, Henry B. Gutman, ran into sharp questioning from
Justice Stephen Breyer.
``The genius of what Lotus did was organizing and arranging in a
certain order the possible functions of a computer program. Copyright
doesn't protect the ingenious system they worked out. That's not what
copyright is for,'' Breyer said.
The fact that Lotus has attached words to its command system doesn't
seem to turn it into a copyrightable work, Breyer said, any more than
labels would let a company copyright a system for arranging switches
in an airplane cockpit, or signs would let a company copyright the way
it displays merchandise in a department store.
``What is at issue here are words,'' Gutman insisted. ``If these words
were written in a pamphlet, there's no question they'd be
copyrightable.''
Justice David Souter said Lotus's command system makes this a
difficult case because it falls in a ``median range'' between a
creative work and a utilitarian system of operation.
``It is in fact used in the most utilitarian of fashions, yet indeed
one can say it is expressive. Isn't the problem that this is something
that's kind of in the middle and could be labeled as one or the
other?'' said Souter, who acknowledged that he is ``struggling'' to
come up with the proper legal test.
Most of the justices, in fact, seemed to be searching for a way to
make software command systems fit into a traditional judicial test
that tries to separate creative expression from strictly functional
aspects of a work, and grant copyright protection accordingly.
Lotus, a software pioneer, was acquired by IBM Corp. last summer.
The justices are expected to issue a decision in the case by July.
The case is Lotus Development Corp. v. Borland International Inc.,
94-2003.
NYT-01-08-96 1622EST