darryl@ism780c.UUCP (Darryl Richman) (03/23/88)
This article is a paper I wrote for a non-computer-related undergraduate
class I took a year ago. Disclaimer: I am not a lawyer, but I did go
down to the LA County Law Library to investigate this stuff. I believe
that the facts are correct. The opinions are mine alone.
Copyright Protection
and the Look & Feel of Computer Systems
1 Introduction
In this paper I have chosen to explore the current state of the
copyright law and case history as it applies to computer programs and
systems. More specifically, I want to investigate a particular kind of
copyright protection that was originally applied to audiovisual works
but is increasingly becoming associated with computer systems: the
so-called Look and Feel copyright.
2 Initial Clipping
I have been aware of this kind of copyright protection since it was
reported in the computer industry press about a year and a half ago,
when Apple Computer, Inc. (Apple) used this kind of argument to force a
competitor, Digital Research, Inc. (DRI), to change a product that they
had brought onto the market.
The situation began when DRI announced a new product for the IBM PC
line of computers, Graphic Environment Manager or GEM, in January of
1985. GEM is a computer program that manages the computer screen in a
flexible way, allowing multiple, independent displays to overlap on the
screen. It also allows the computer user to select any one of the
displays to appear in front of the others. DRI also made two programs
available for sale, GEMPaint and GEMDraw, that took advantage of the
capabilities of the GEM system.
I was able to locate the initial report of the settlement in
ComputerWorld, a weekly computer industry newspaper, in their October
7, 1985 issue. They also reported that DRI had changed their product
to avoid a suit by Apple, a few months later in the November 25th
issue.
According to the ComputerWorld article, "In question were GEM Desktop,
GEMPaint and GEMDraw, which Apple said mimic the Macintosh interface,
MacPaint and MacDraw. Apple claimed GEM as a whole was 'substantially
similar' to its Macintosh interface."
3 Overview of the Problem
This settlement provoked many heated debates in the computer industry.
Apple, as we will see later, has long used vigorous enforcement the
copyright laws as a means to keep their products distinct in the highly
competitive retail marketplace. This has not always endeared them to
the professional community, who have felt that this kind of protection
tends to stifle rather than enhance creative development.
The ComputerWorld article concludes with a comment about how the
Macintosh interface is composed of elements originally invented by
Xerox Corp. A Xerox spokesman is quoted as saying "'We never felt it
necessary to go after anyone' that had similar features." The unstated
opinion is that perhaps Xerox should be suing Apple for copyright
violation.
It was perceived that Apple had purposefully picked a weak target so
that they would be able to set a precedent and prevent more competitors
from entering their market niche. (DRI had lost money the previous 2
quarters and IBM had just announced that they were not, after all,
going to pick up GEM and sell it as a supported product.) The Look and
Feel of the action of a computer program had never been argued in
court. Previous Look and Feel claims have not left a clear test for
violation; in fact, it has been stated that the rules must, by the
nature of the problem, be left vague, and must be tried on a case by
case basis.
If a case such as this were to be tried and decided in the plaintiff's
favor, it would not be clear that new programs could be implemented
using ideas from past programs without obtaining rights to them first.
Already there are rumors that Apple has begun to explore the
possibility that 3rd party software vendors that implement programs on
the Macintosh according to Apple's published interface guidelines and
then make the same programs available on other computers may be in
copyright violation. The mere mention of this notion has inflamed many
software developers.
This issue has attracted my interest because I am both a software
purchaser and developer on the Macintosh computer. If Apple were to
pursue this concept, I might be required to pay royalties back to them
for any program I were to write. This kind of protection might allow
them to indirectly control not only the price of software I buy, but
even which companies might be allowed to produce software for their
machines.
4 Research and Review
A. Applicable Laws
The current federal and international copyright law has no specific
bearing on Look and Feel copyrights directly applicable to computer
systems; these laws are indicative of previous thought on the
subject. In past years computer systems were used exclusively for
large, industrial and economic purposes. In the last 10 years a
revolution has occurred in the computer industry; personal computers
have appeared and become commonplace objects. They are now routinely
used for entertainment and personal record keeping.
i. Declaration of Independence
With the words "Congress shall have power... To promote the progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries," our founding fathers created the basis for copyright
protection.
ii. 1909 and 1976 Copyright Acts
That clause allows congress to make copyright law; it did so in 1909.
This provided for the copyright of registered works. It also allowed
individual states to provide their own, more extensive, copyright
protections. In particular, many states provided protection for
unregistered works.
The 1976 copyright act [17 USC sec. 101] changed many aspects of copyright
protection. After the law became effective in 1978, the dual system of
copyrights was abolished. The federal system was made easier to use
and recognized unregistered copyrights for up to 5 years from
publication. It also specifically covered copyrighting computer
programs.
Other aspects of the copyright law allow graphical and audiovisual
works to be copyrighted. The 1909 act had such provisions and they had
been liberally interpreted; see Universal v. Lloyd below.
iii. Copyright Act Amendments
The copyright act of 1976 was amended in 1980. [17 USC sec. 117] was
changed to allow archival copies of software to be made by the user.
(As an aside, it also formally permits the user of a copyrighted
program to actually use that program in a computer, by allowing him to
make a copy of the work in the computer's memory! A program purchased
on a disk must be copied into the computer's main memory before the
computer can actually follow the instructions contained within it;
previously it could be argued that the copy on disk would have to be
destroyed while a copy existed in the computer's main memory.)
In 1984, the act was further amended to include semiconductor chips
under its protection. The phrasing of the description of a computer
program was changed to protect micro-code that might be built into such
chips.
iv. International Copyright Convention
Another factor that helped bring about the 1976 copyright law was to
move U.S. law into agreement with the then-recently approved
international copyright agreement, administered by the World
Intellectual Property Organization (WIPO), which afforded authors
protection in all of the signatory countries.
In 1983 WIPO issued a treaty that covered both computer programs and
semiconductor chips, that closely mirrored U. S. law.
B. Law Review
i. American Jurisprudence
Nearly one third of volume 18 of American Jurisprudence, 2nd Edition is
dedicated to copyright law. Of particular interest are sec. 50 and
sec. 51 on computer programs, sec. 53 and sec. 54 on games and video
games, and sec. 207 on substantial similarity.
The Copyright Office began to allow programs to be copyrighted as books
as early as 1964, even though patents were then considered to provide
more protection. In Gottschalk v. Benson [409 US 63], the U. S.
Supreme Court ruled that copyrights and not patents were appropriate
for programs. The copyright act of 1976 defines them as "literary
works."
As a result of Apple v. Franklin (see below), computer "operating
systems" are also protected. An operating system is a program which
provides a consistent set of services to all other programs that may
run on the computer. Even if its actions are not observable by the
user, an operating system is copyrightable.
There are many other sticky issues involving computer programs, many of
which relate to the distinctions that may be distinguished between the
form of the program as viewed by a person and the translation(s) that
take place before the program can be executed within the computer. In
general, these distinctions have been ruled to be unimportant.
Games in and of themselves are not copyrightable on the grounds that a
game concept is a business idea. Portions of a game may, however,
qualify for protection as artistic works.
A video game may qualify for copyright as an audiovisual work (see
Williams v. Artic below). For purposes of copyright, an audiovisual
work is "a series of related images." Part of the argument in
Williams is whether this phrase requires the images to be in a fixed
sequence; if so, a video game could not be copyrighted. The courts
have interpreted this phrase as meaning a set of images displayed as a
unit.
Finally, in artistic works, no infringement of copyright may be
inferred unless the defendant's work is similar to that of the
plaintiff. The total "concept and feel" must be substantially the
same, not just a general impression of similarity. Although the
general idea of both works must be similar, this alone is not enough to
prove infringement. If so, then a further test is whether they are
expressed in similar fashion. This depends upon the responses of
ordinary, reasonable persons.
In general, if an ordinary observer would recognize that a copy had
been made, it satisfies the tests. It does not matter if minor or
inconsequential changes have been made (see Universal v. Lloyd below).
Substantial similarity cannot be described because it is necessarily
vague; the trier must decide.
ii. BNA's Patent, Trademark & Copyright Journal
From the October 23, 1986 issue of the BNA's Patent, Trademark &
Copyright Journal comes the report of a decision in a case between
Broderbund and Unison. Broderbund sells a program for Apple computers
called Print Shop, with which the user may create greeting cards on his
computer. Unison expressed an interest in selling the program on IBM
and other machines, and pursued negotiations with Broderbund. When it
became apparent that Unison would not be able to license the name, they
ordered that the already half complete copy be changed so as not to
violate Broderbund's copyright. However, the input format and the menu
sequence and displays, already finished, were not changed. Broderbund
has just won an injunction against Unison for violation of their
copyright, using a Look and Feel argument.
This decision flies in the face of an earlier decision, Synercom
Technology, Inc. v. University Computer Corp. [199 USPQ 537] of 1978,
where the judge had ruled that input formats were not copyrightable.
Instead, the decision is based on the more recent Whelan Assoc. v.
Jaslow Dental Laboratories, Inc. [230 USPQ 481] of 1986, which held
that a program's sequence and overall structure were copyrightable.
C. Professional Journals
In addition to the original article on which I based my investigation,
ComputerWorld had a follow-up article in their November 25, 1985
edition. This described the release of a new version of DRI's
products.
The April 13, 1987 issue of Electronic Engineering Times has a brief
blurb about the current state of two Look and Feel suits. Lotus
Development Corp. has just been sued by SAPC, Inc., who allege that
Lotus' 1-2-3 spreadsheet program "appropriates the 'Look and Feel' of
VisiCalc," SAPC's spreadsheet program. Lotus is already in the midst
of suing Mosaic Software and Paperback Software for infringement on
1-2-3's look and feel.
D. Popular Magazines
The news of DRI's settlement with Apple was reported in Fortune in
their November 11, 1985 issue. They said that more than 100,000 units
had already been shipped by the time Apple forced DRI to stop.
The May 1987 issue of MacUser magazine has an editorial, "Copping A
Feel" by John Dvorak, discussing the current state of copyright
protection in the personal computer community. In it he discusses the
above mentioned cases involving Lotus and Broderbund. His conclusion
is that if the copy is sufficiently enhanced such that an appropriately
familiar user would not confuse it with the original, then there is no
infringement. He gives an example of a clone of a popular word
processing program that has avoided trouble by imperfectly copying the
original.
E. Books
i. Software Protection and Marketing
This two volume book is subtitled Computer Programs and Data Bases;
Video Games and Motion Pictures. Each chapter, and in some cases each
section, is written by a different author. Some of the chapters are in
the form of slide-show notes.
In particular, the first chapter, "Copyright and Computers" by Arthur
J. Levine, provides a great deal of background information on the
history of copyright law as it applies to computers. It includes
relevant portions of the 1976 copyright act, WIPO memoranda, the report
of the National Commission on New Technological Uses of Copyrighted
Works (CONTU), and the cases Midway v. Artic and Apple v. Formula
International, Inc. (which covers specifically the copyrightability of
computer "operating programs.")
Chapter 4 is "Video Game Litigation and the 1976 Copyright Act: The
Ideas of Games, The Expression of Aliens and the Underlying Computer
Software" by Henry W. Jones III. The Atari v. Phillips case (see
below) and several other similar cases are discussed. Many problems
with copyrighting video games are mentioned; in particular, since the
game plays differently each time, defendants often charge that the work
has not been "fixed in a tangible medium," nor has it been properly
registered.
F. Cases
i. Universal Pictures Co., Inc., et al. v. Harold Lloyd Corp.
73 USPQ 317, May 12, 1947
This case exemplifies how an audiovisual work can infringe on the
copyright of another. Harold Lloyd Corp. produced a slapstick comedy,
Movie Crazy, containing a scene known as "The Magician's Coat Sequence"
(wherein the star accidentally gets a magician's coat by mistake and
many unexpected things happen.) Later, Universal produced So's Your
Uncle containing nearly the same schtick. The circumstances
surrounding the two scenes are different, and there are no actors in
common in the two movies. However, the same writer did work on both,
and was charged as a defendant. The scene corresponded to 20% of the
length of Universal's movie, and thus formed a significant part of the
whole. Although there were some minor variations in the two routines,
the court held that they were not significant enough to mask the
infringement.
ii. Atari, Inc. et al. v. North American Phillips Consumer
Electronics Corp. et al.
214 USPQ 33, March 2, 1982
Atari, along with Midway Manufacturing, owned the rights to the Pac-Man
video game. Phillips produced a game called K. C. Munchkin, which was
similar but distinct. Both games involve a maze where the player
controls a "gobbler" that "eats" dots and avoids "ghost monsters,"
except after eating a "power capsule" that allows the player to munch
monsters. However, Phillips' game has a deadend in the maze and there
are relatively few dots in the maze (as compared with over 200 in
Pac-Man's fully lined maze). The dots are always moving, faster as
there are fewer left, until the last one moves faster than the gobbler
and must be caught by strategy.
Evidence in the trial showed that Phillips had begun work on a game
that was similar in idea to Atari's. After much of the work was
complete, Phillips discovered that they would be unable to license the
Pac-Man name, and so made more changes in the game and selected the
very different name, specifically to avoid confusion. An internal
memorandum expressly forbade reference to Pac-Man in advertising.
However, a Chicago retail outlet did describe the game as "a Pac-Man
type game" in their advertising. The wording was carefully examined by
the court; they felt that even slight variations would have been valid
comparative advertising, but that this specific wording showed that an
ordinary observer would confuse the two. In particular, Atari
presented evidence that the salespeople at two stores called K. C.
Munchkin "like Pac-Man" and "Odyssey's Pac-Man" (Odyssey being the
game line promoted by Phillips).
iii. Midway Mfg. Co. v. Artic International, Inc.
218 USPQ 791, April 11, 1983
Midway, as described above, owned the rights to the arcade version of
Pac-Man and another game, Galaxian. Artic was a manufacturer of
printed circuit boards. Artic produced a set of boards that played
nearly the identical games when inserted into arcade machines. The
defendant claimed that the games were not copyrightable as audiovisual
works because the sequence of images displayed were not fixed; that
the images that Midway was attempting to copyright were not fixed in
the pc boards that were the heart of their games; and that the
copyright registration, which included a videotape of a sample game,
was not complete. They further argued that the player of the game was
performing a role of authorship that was like writing or painting.
The court disagreed--the images in a video game do constitute an
audiovisual work. Congress intended the courts interpret the
definitions of the 1976 copyright act flexibly so that it would not be
forced to amend the act every few years to keep pace with the changing
technology. The court also likened the images in the games to that
shown on a television, that the viewer might change the channels
displayed.
iv. Apple Computer, Inc. v. Franklin Computer Corp.
219 USPQ 113, August 30, 1983
Franklin manufactured a computer essentially identical to Apple's Apple
II computer. They admitted to copying 14 of Apple's programs,
designated as operating system programs by the court. Apple sued for
copyright infringement and immediate injunctive relief. The circuit
court denied the injunction, questioning the copyrightability of
operating systems programs. Apple appealed to the district court,
obtaining a reversal. Thus all computer programs are copyrightable.
5 Observations
Copyright protections vary according the medium in which the work is
expressed. This might seem to parallel the differences in press
freedoms according to medium. In part this is the case, due to the
natural restrictions of each media.
In general, the two areas of the copyright law, literary and
audiovisual works, are becoming blurred by the computer. This is a
result of the way computers are programmed and what they are coming to
be programmed to do. Traditionally, computer programs are written out
in a structured manner, using a two dimensional form, just as a
manuscript might be. But as computers and the display screens they
sport have become more sophisticated, the computers are being
programmed to produce aurally and visually interactive systems.
Companies are advertising their new computer systems as including the
"desktop metaphor" or having an "iconic interface." What these terms
really mean is that the user no longer is required to type commands to
the computer, but rather is allowed to use a graphical interface and a
pointing device such as a joy stick or a mouse to control computer
operations. Often the basic functions of handling icons and
translating mouse movements to position changes of a cursor on the
screen are implemented in the operating systems supplied, or available
as an option, from the computer manufacturer. Some current examples of
these kind of systems include Apple's Macintosh, Commodore Business
System's Amiga, Microsoft's MS-Windows, and of course, DRI's GEM.
Although the operations on the screen are, in a sense defined by the
controlling program, as in the video games cases noted above, the
activities available to a user are far more varied. Because 3rd party
vendors want to make use of similar interfaces so that users will not
be forced to learn a different interface for each program, they attempt
to use the same on screen operations provided by the operating
systems.
These same developers want to have as big a market as possible, and if
their products are successful on one machine, they will naturally want
to implement the same program on other machines. If they use the
interfacing tools (for that is what an operating system provides)
provided by the original machine's manufacturer, is it copyright
infringement to move the program and reimplement the interface on
another machine?
So, the problems here boil down to: what part of the computer
interface qualifies for copyright as an audiovisual work? How
liberally will the courts interpret the audiovisual aspects of a
computer system as these desktop metaphor machines proliferate? If, as
the Broderbund case seems to imply, the individual parts of a program
interface can be copyrighted, who owns all of those pieces?
Visual aspects are not the only ones at issue. Already the Apple,
Commodore, and Atari computer systems can be connected to various
electronic music instruments. They can also record and play back
arbitrary sounds through digitization equipment. An additional area
that will probably soon be breached is the use of the computer as music
making and reproducing machine. This is yet another large and
different portion of copyright law.
I personally feel that the Broderbund decision, or at least a wide
interpretation of same, represents a mistake. Previously, audiovisual
works were considered as a whole. An affirmative copyright
infringement decision previously required that it be apparent that the
infringing work would not stand on its own without the copied
portions. Notice the wording in Universal v. Lloyd, above, were the
court noted the fraction of So's Your Uncle that was stolen from Movie
Crazy.
Even assuming that we draw the line at this point, this hardly clears
the air. Many programs do little other than taking input and
rearranging it slightly to produce their output (for example, word
processors merely display the typed input in a more pleasing form, and
many of the simpler ones, known as text editors, do very little other
than act as electronic typewriters.) If, as is the case on the
Macintosh, the majority of the work is produced as a result of the
operating system's programs, does this give the manufacturer a
copyright claim? Although this may sound as if I am stretching the
point, I do not believe that it is so. From my experience, most
programs on the Macintosh in fact follow a structure laid out (and I
believe, copyrighted) by Apple in order to take full advantage of the
interface tools provided. The Jaslow decision seems to support the
notion that Apple may hold copyrights on any program that uses their
structure and sequence.
When I first read about the Macintosh, I felt that its single best
point was the existence of a published set of standards for creating a
user interface. This was new and unique in the personal computer
industry. It resulted in a machine with a multitude of capability that
was (relatively) easy to use and, more important, uniform from program
to program. After researching this subject, I am afraid it may also be
its worst point!
6 Bibliography
"Copyright and Literary Property." American Jurisprudence, Second
Edition, volume 18, sections 50, 51, 53, 54, and 207. The Lawyers
Cooperative Publishing Co., Rochester, N. Y., 1985.
BNA's Patent, Trademark & Copyright Journal, volume 32, number 802,
October 23, 1986. Bureau of National Affairs, Washington, D. C.
"Apple Forces Rewrite of GEM," ComputerWorld, October 7, 1985, page 2.
CW Communications Group, Inc., Framingham, Mass.
Article I, section 8, clause 8. Declaration of Independence of the
United States of America.
"Lotus is sued for Copyright Breach," Electronic Engineering Times,
Issue 429, April 13, 1987, page 2. CMP Publications, Inc., Manhasset,
N. Y.
"No Glitter for this Gem," Fortune magazine, October 11, 1985, page 9.
Time, Inc., N. Y., N. Y.
Goldberg, Morton David, editor. Software Protection and Marketing:
Computer Programs and Data Bases; Video Games and Motion Pictures, 2
volumes. Practising Law Institute, 1983.
Dvorak, John C. "Copping A Feel," MacUser magazine, May, 1987, page
204. Ziff-Davis Publishing Co., N. Y., N. Y.
U. S. Patents Quarterly, volumes 73 (April-June 1947), 214
(January-March 1982), 218 (April-June 1983), and 219 (July-September
1983). Bureau of National Affairs, Washington, D. C.
--
Copyright (c) 1988 Darryl Richman INTERACTIVE Systems Corporation
"Curiouser and curiouser" An Eastman Kodak Company
The views expressed above are ...!cca!ima!ism780c!darryl
those of the author. ...!sdcrdcf!gwyn@brl-smoke.ARPA (Doug Gwyn ) (03/25/88)
In article <9499@ism780c.UUCP> darryl@ism780c.UUCP (Darryl Richman) writes: >i. Declaration of Independence >With the words "Congress shall have power... Sounds interesting. Where can I get a copy?
gordan@maccs.UUCP (gordan) (03/27/88)
In article <7543@brl-smoke.ARPA> gwyn@brl.arpa (Doug Gwyn (VLD/VMB) <gwyn>) writes: -In article <9499@ism780c.UUCP> darryl@ism780c.UUCP (Darryl Richman) writes: ->i. Declaration of Independence ->With the words "Congress shall have power... - -Sounds interesting. Where can I get a copy? Some company called Global Engineering Documents is authorized to sell this document, at roughly $60 a copy. Unfortunately, it's not available in machine-readable form -- after all, someone might alter it without anyone noticing the difference, and where would _that_ leave us? -- Many Americans work side by side with space aliens who look human -- but you can spot these visitors by looking for certain Gordan Palameta tip-offs, say experts. mnetor!maccs!gordan