Lotus vs. Paperback: drawing the line.

First, full disclosure: Earlier this year we played a small role in the Lotus vs. Paperback lawsuit as an expert witness for Lotus, which perhaps should disqualify us from commenting on the decision itself. (Actually, our real difficulty with the case wasn't journalistic objectivity as much as perspective. After poring through hundreds of pages of documents and listening to hours of legal hair-splitting, it was extraordinarily hard to focus on simple, basic issues.) But the Lotus case really does help resolve many of the most troublesome questions of the ongoing 'look and feel" debate. Not everyone loves the outcome (especially because Lotus promptly used the decision as grounds to sue two more competitors, Borland and the Santa Cruz Operation). But this case is clearly destined to become a landmark in software case law, and we think it's important to look at what U.S. District Judge Robert Keeton actually said. The bottom line, of course, is that the court once again affirmed the principle that software interfaces are creative works and deserve the same copyright protection as the underlying code. The menu structure, taken as a whole--including the choice of command terms, the structure and order of these terms, their presentation on the screen, and the long prompts--is an aspect of 1-2-3 that is not present in every expression of an electronic spreadsheet [and therefore) meets the requirements of the legal test of copyrightability," Judge Keeton said. Paperback's counter-arguments, he added, were mostly 'strained analogies and word games." That's been the overall thrust of copyright law for several years now, but Judge Keeton broke new ground in this case by dealing explicitly with a question that has worried even the most creative developers: Is it legal to borrow individual interface concepts and conventions from 1-2-3 and other popular products? Keeton's answer is that the courts won't pursue developers who incorporate such Lotus-like conventions as the slash key or the two-line menu, in part because keyboard and screen display constraints provide software designers with 'very few practical options" in these areas. In effect, these piecemeal elements may be used as freely as individual English words and phrases are used by writers. But even if individual interface ideas are unprotectable, Judge Keeton explained, Lotus still has explicit ownership of the way these ideas have been organized as an original and coherent design. If particular characteristics not distinctive individually have been brought together in a way that makes the 'whole' a distinctive expression of an idea--one of many possible ways of expressing it--then the 'whole' may be copyrightable," the judge ruled. To us, this seems like a good common-sense rule, one that can protect creative interface designs without inhibiting innovation. Relying on the Lotus precedent, developers are now free to use 1-2-3 (and, by implication, other software products) as a source of ideas and conventions, and they're free to use a reasonable selection of these conventions to give their own products a Lotus-like look and feel. A warning flag should go up, however, once a developer decides to copy substantially all of the Lotus interface, especially to produce a 1-2-3 clone. (Current copyright law, Judge Keeton noted, already prohibits authors from plagiarizing a protected work and then making cosmetic changes to disguise the copying. And he also pointed out that even a substantially original, non-cloned work may violate copyright law. If one publishes a 1,000-page book of which only a 10-page segment is an unauthorized reproduction of copyrighted material," said the judge, "it is not a defense that the book is 99% different.") Again, this seems like a pretty straightforward principle for separating the sheep from the goats. In general, programmers now know that they should follow roughly the same rules that apply to writers, musicians, and graphic artists. As the relative scarcity of plagiarism suits in these areas suggests, creative professionals seem to have a clear grasp of where the boundaries fall. But will Judge Keeton's guidelines put an end to the industry's plague of look-and-feel cases? Probably not. In other creative professions, plagiarism offers no particular commercial reward; copying merely saves a writer or artist a little sweat. But software is different: There's a widespread belief that a "compatible" interface lowers the barriers against a new product's acceptance in the marketplace. That was certainly the logic behind Borland's decision--despite the probability that Lotus would win the Paperback case--to hang on to an optional 1-2-3 menu structure in the latest version of Quattro. That optional interface wasn't required for reasons of innovation or data compatibility, and it wasn't the result of lazy programming. Rather, Quatro's 1-2-3 interface was preserved simply as an extra selling feature for a product that was already a respectable challenger in the spreadsheet marketplace. Sadly, this faith in the magical power of a look-alike interface is probably misguided. Users may like to discover some familiar interface conventions in a new product, but what counts more--as the lukewarm sales history of VP-Planner suggests--is whether buyers believe a new product offers dramatic advances in power and performance. Great products don't have to copy a rival's exact screen layout and menu structure to win acceptance; and no clone interface is likely to rescue a lackluster product from oblivion.