Lotus decision bolsters Ashton-Tate's suit position.

Lotus decision bolsters Ashton-Tate's suit position

As Ashton-Tate Corp., Torrance-based software publishing giant, awaits its copy infringement trial against Fox Software, its lawyers say they are buoyed by a recent decision in a similar case filed by Lotus Development Corp.

Lotus, publisher of the Lotus 1-2-3 spreadsheet program, recently won a major copy infringement suit against competitor Paperback Software Inc., which produced a similar program.

Stanely Witkow, Ashton-Tate's vice president and general counsel, said he is confident that his company can utilize the favorable Lotus ruling to bolster its suit against Fox Software, a private company based in Perrysburg, Ohio, with revenues estimated in the $20 million to $30 million range.

Fox spokesman Chris William said he does not think the Lotus case will affect Ashton-Tate's lawsuit.

Ashton-Tate, a public company with 1989 revenues of $265 million, alleged in its suit all of Fox's database products, except for Fox Base, infringes on the copyright of Ashton-Tate's dBase III and dBase IV database programs.

Ashton-Tate and Fox representatives offered different interpretations of the Lotus decision and how it will impact on their lawsuit.

In the Lotus case, Judge Robert Keaton, a federal district judge in Boston, ruled that Paperback infringed on Lotus' copyright.

Basing his decision on several past software copyright decisions, Judge Keaton said a software copyright extends to the words and images a user sees on a screen and commands he types to operate the program.

Judge Keaton did not accept the argument presented by Paperback's attorney that the commands were part of a programming language and because languages could not be copyrighted they were not violating copyright law.

Paperback, whose spreadsheet program is less expensive than Lotus', took advantage of its similarity to Lotus 1-2-3 in its marketing campaign.

Los Angeles Attorney Ron Johnston, who will represent Ashton-Tate in court, said the decision has a direct impact on his case because he claims Fox copied Ashton-Tate command structure, the same elements that Paperback copied from Lotus.

Johnston said that Judge Keaton called Paperback's claims that computer languages can not be copied a "striking word game."

To defend Fox, Williams said that Ashton-Tate is interpreting the Lotus decision too broadly and added that he does not believe that computer languages can be copyrighted.

Although Judge Keaton's decision is not a binding precedent because it was decided in a federal district court, his 150-page decision case has been praised by many lawyers for its thoroughness and clarity.

For example, Judge Keaton wrote that Paperback did not have to express user commands and menus exactly like those on the Lotus 1-2-3 spreadsheet because there are many of ways expressing them.

"I conclude that a menu command structure is capable of being expressed in many if not unlimited number of ways," wrote Judge Keaton, "and that the command structure of 1-2-3 is an original and non-obvious way of expressing command structure."

Williams said that the Lotus case involved the look of the user interface, but not the program language, which he said he believes are not subject to copyright protection.

According to Ashton-Tate's Witkow, the belief that programming languages can not be copyrighted is erroneous.

That belief, explained Witkow, stems from the fact that several widely used languages such as Basic, Fortran, Pascal and C have no copyrights and can be used by the general public. But Witkow explained that these languages are in the public domain because they were developed with U.S. government funding at universities.

However, Ashton-Tate's programming language was developed with private company research and development funds and can be copyrighted, argued Witkow.

Johnston added that companies sometimes choose to place their software into the public domain or to license its software to third parties, but Ashton-Tate has not yet chosen to do so.

Both sides said they doubt that the case can be settled out of court and it will probably take several years to resolve.