Brief Fact Summary. Borland International (Borland) (Defendant) included in its own spreadsheet programs the commands used by the computer program Lotus 1-2-3 so that spreadsheet users who were already familiar with 1-2-3 could easily switch to the Defendant programs without learning new commands.
Synopsis of Rule of Law. A computer menu command hierarchy is not copyrightable subject matter.
Issue. Is a computer menu command hierarchy copyrightable subject matter?
Held. (Stahl, J.)Â No.Â A computer menu command hierarchy is not copyrightable subject matter.Â A menu command hierarchy is an uncopyrightable â€œmethod of operationâ€ as that term is used in S 102(b) of the Copyright Act.Â It provides the means by which users control and operate a program’s functional capabilities.Â Just as it would be impossible to operate a VCR without buttons, it would be impossible to operate Lotus 1-2-3 with using its menu command hierarchy.Â Therefore, the Lotus (Plaintiff) command terms are equivalent to the buttons themselves, which are an uncopyrightable method of operating the VCR.Â Therefore, Defendant did not infringe Plaintiff’s copyright when it copied its menu command hierarchy.Â Reversed.
Concurrence. (Boudin, J.)Â Because computer programs, unlike literary works or works of art, are utilitarian, granting copyright protection to such programs can have the same effect that granting a patent would have, that is, limiting the ability of users to perform a task in the most efficient way.Â While utility does not bar copyrightability, it changes the calculus.Â While the incentive for the creator remains the same through the grant of a limited monopoly, the cost to users is great where the creation is the most efficient way to accomplish a particular task.Â Copyright law has not extensively addressed utility, so there is not much precedent to go by.Â Where protection is sought for a computer menu, which may be a creative work, the importance of the menu over time may reside more in the investment that users have made in learning the menu and building macros based on it. Â Therefore, to assume a computer program is just another form of expression, like a film, may be incorrect.Â While the expression of the computer program may look or feel like the familiar subject matter of copyright, its substance may be more suited to protection by patent law.Â The application of copyright law to computer programs does not quite â€œfit.â€Â In this case, Borland’s rationale for wanting to incorporate the Lotus (Plaintiff) menus rings true, that is, to give Plaintiff users who have invested time learning the Lotus (Plaintiff) menu hierarchy a fallback option when they use Borland’s (Defendant) product.Â The issueÂ is not whether Lotus (Plaintiff) would lose money if its menu hierarchy were awarded copyright protection.Â The issue remains whether it should be awarded such protection.Â Given that the menu commands are largely for standard procedures that Lotus (Plaintiff) did not invent and are common words that Plaintiff cannot monopolize, copyrightability does not seem warranted, even for just the particular combination and subgrouping of the commands.Â Granting Lotus (Plaintiff) copyright on this pattern of commands would lock users into using Lotus (Plaintiff).Â If a better spreadsheet were developed, there is no reason why those customers who have learned the Lotus (Plaintiff) menu and devised macros for it should be forced to remain captive to Plaintiff simply because of an investment in learning made by them and not by Lotus (Plaintiff), who would have then already reaped the rewards of being first.Â Accordingly, Defendant should prevail, but the question remains on what basis.Â The choice seems to be between finding the menus not copyrightable or devising a new doctrine that renders Borland’s (Defendant) use privileged.Â Each approach has its pros and cons.Â In any event, the majority’s approach is satisfactory.
Discussion. Judge Boudin suggested that an alternate analysis would be to say that Borland’s (Defendant) use of the Lotus (Plaintiff) menu was privileged as it was simply trying to assist former Plaintiff customers, not attract them, The closest analogy to that approach would be the fair use doctrine employed in conventional copyright law.Â However, he also admitted that a privileged use doctrine would cause a host of administrative problems and would also reduce the ability of the industry to predict outcomes.