Computers and Intellectual Property

THE JOURNAL OF LAW AND TECHNOLOGY

[Vol. 1:1

1985]

Where the alleged errors involve technical issues, the claimant should be invited to
submit them to special medical or scientific panels or to accept other procedures
designed to find the best answers to those questions for which there are objective

answers.

Error correction procedures, however, must not become a substitute for bar-
gaining. The credibility which is essential to the procedure would be lost if it
appears that the first offer is not in fact the claims defendant's best offer on
the facts known to it. The rug-bazaar trading atmosphere would quickly return
in an environment of even greater hostility and mistrust than at present if the
first offer later turns out not to be credible.

Third, the claims defendant should furnish appropriate voluntary disclosure of
relevant information. For example, it might grant access to documents and
transcripts of deposition and trial testimony made public in earlier similar liti-
gations and to its computerized indices to such materials. The purpose is not
only to help the claimant make his decision and provide assurance that the claims
defendant is not hiding something it fears will be uncovered during discovery,
but to end claimants' almost total reliance on the central files of a mass plaintiffs'
bar. The parties can thus share additional savings because claimants and their
local counsel will not need to retain specialized trial counsel.

Fourth, the claims defendant should offer to provide a no-cost second opinion
on the fairness of its offer. This might be furnished by a panel of retired judges
specially established by an impartial, independent organization (such as the Amer-
ican Arbitration Association) or by a contribution to the cost of a similar opinion
from a disinterested attorney of the claimant's own choice.

Fifth, claimant and his attorney should have free access to the defendant's
settlement board and ombudsman. Claimants should be encouraged to present
objections and complaints and to insist upon enforcement of the basic precept
of the first-and-best-offer approach: that the claims defendant will make what it
believes to be a fair offer at the earliest reasonable time, without negotiation or
pressure of any kind.

One final assurance is beyond the power of any individual claims defendant
to introduce. An industry certification procedure would aid much in enhancing
the credibility of the approach. It would review programs, publish reports on
their operation, and certify to their integrity. It would also operate to uncover
and spotlight the occasional industry miscreant whose efforts through unfair
offers to take advantage of the success of others might too easily damage the
credibility of all.

c. Sequential Settlement Agreement

Not all claims will be settled. To avoid judicial litigation of the unsettled cases,
the claims defendant might also offer an "up-front" payment to the claimant at
the outset conditioned upon claimant's agreement to a non-judicial procedure for
disposing of the case if settlement discussions fail. Fifty percent of the first offer
might be paid at once, for example, if the claimant agrees to an appropriate
form of arbitration of any unresolved issues. This payment would be a "floor"

SOCIOSCIENTIFIC DISPUTE RESOLUTION

to the claimant's recovery to be kept even if the arbitration ultimately determined
that there was lower liability.

d. Some Questions

The first-and-best-offer approach represents a dramatic change in mass claim
settlement practice. Five areas of question deserve comment.

Q1: Won't the first-offer procedure encourage some claims which would
otherwise be ignored?

Perhaps, but this is true of settlement under any circumstances and is a problem
all defendants face today. For this reason, some defendants have a strict "no-
settlement" or "tough-settlement" policy. Whatever justification such programs
may have in personal injury cases, ordinarily they have little place in mass
socioscientific proceedings because of the enormous litigation burden in such

matters.

The first-and-best-offer approach does not in itself contemplate settling frau-
dulent claims, or paying anything where there is no realistic anticipation of some
loss at the end of the case. There may well be justification for settling some
cases for nuisance value, but that is a separate policy judgment having nothing
to do with the first-and-best-offer approach.

Q2: Won't the first-and-best-offer program result in more rather than fewer
litigations because claimants are so unaccustomed to accepting anyone's first
offer?

There might be more trials at the beginning of a first-and-best-offer program,
assuming the defendant does not violate the essential no negotiation policy. But
this should change as the early cases are litigated and the results become available.
The first-and-best-offer approach is necessarily a long term one, not an instant
panacea. When the first results are available, they should demonstrate that defend-
ant's offers were indeed fair and that claimants lost out by insisting on trial.
Indeed, when plaintiffs' counsel examine these early results, they will see the
wisdom in accepting first offers and the dangers of legal malpractice awards
against themselves if they too lightly recommend rejection.

Q3: Won't aggressive trial judges seeking to expedite cases bring pressure to
bear on claims defendant to increase their offers? If so, won't the first offer
become just an opening price, but at a much higher level than now?

The first-and-best-offer program works best, of course, when initiated at the
outset of a claim and long before a matter gets to court. Here, trial judges play
no part. Realistically, however, such a program is likely to be adopted today
only where a large number of proceedings are already pending. Under such
circumstances, each court must be made to understand the special nature of the
first-and-best-offer approach from its outset. Copies of the published rules and
all other documentation should be furnished to the court so that it understands
that any negotiated increase in the offer defeats the program. Defense counsel

THE JOURNAL OF LAW AND TECHNOLOGY

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1985]

SOCIOSCIENTIFIC DISPUTE RESOLUTION

must be prepared to argue to the court that interference would disserve the judiciary's effort to dispose of cases expeditiously and to stand firm with the trial court if necessary.

Q4: The approach seeks to eliminate pro-litigation bias from the dispute
resolution process. If there is such bias, won't attorneys block settlements?

The program is designed so that the principals will make the critical decisions,
not their legal representatives. The details of the settlement proposal, the reasons
why it should be accepted, the costs and unpleasantness of the litigation alternative,
the safeguards built into the system, and the experience in other cases, should
all be communicated directly to the claimant.

It may be that some attorneys will object to such contact between the claims
defendant and the claimant, but it can be done properly, either directly or through
the court. In most jurisdictions, the communication is ethical. No attorney seeks
to deal privately with the client of an adversary attorney, or to conceal anything
from the claimant's attorney, or exclude that attorney from any meeting, or
procure such conduct. The two principals should simply communicate with each
other personally or through counsel. If a trial attorney successfully objects to
this open contact, however, it should be possible to persuade the court to require
the claimant personally to appear and receive the information in open court.

The legal profession is under attack today for the inefficiency of its present
methods and the appearance that it earns more from suffering than do the
principals. It takes no great strain of the imagination to anticipate that society
will one day take remedial action against the legal profession if better results are
not achieved. Such action could be far more offensive to the profession than
enlightened private-sector relief.

Whatever may be the short run effect on legal fees of the first-and-best-offer
approach, the process makes dispute resolution far more efficient. In the long
run, this will serve attorneys just as much as it serves their clients.

Q5: Is it true that the guarantee of "fair" offers and voluntary disclosure
would subject the claims defendant to liability to a dissatisfied claimant who
settles and later learns of a large verdict?

No, not unless the defendant's offer and disclosure are not as represented. The
first-and-best-offer approach is predicated on integrity and a genuine effort to
perform properly. The claims defendant that hopes to get away with something
should seek relief elsewhere.

IV. CONCLUSION

The burgeoning ADR movement is a reflection of the substantial effort being
devoted to the improvement of dispute resolution generally. The special problems
of socioscientific dispute resolution, however, have thus far received little attention
from any sector of society, academe included.

Successful as they may have been with regard to other kinds of dispute, the
traditional ADR techniques mentioned at the beginning of this article (i.e., ar-

bitration, mediation and the like) have done little for SDR. The failure to deal
more effectively with the SDR problem has helped fuel the fire of demands for
major changes in product hability law and procedure." Industry especially, which
regards itself as the primary victim of the "litigation explosion," has been urging
relief by way of uniform and far more restrictive product liability legislation,
shortened statutes of limitations, provisions for legal fee reimbursement to suc-
cessful litigants, restrictions on punitive damages, class actions and contingency
fee arrangements, and other reforms designed to relieve its litigation burden.
Each of the proposed changes has negative as well as positive implications.
Some may indeed be necessary and will one day provide relief, but surely we
should try less onerous alternatives first. Moreover, there is as yet no clear societal
consensus on what to do, and matters of this kind are not very high on the
current legislative agenda. Government tends to act at crisis; industry needs relief
now, before crisis strikes.

This article has offered three approaches to improve SDR that require no
change in law or procedure and can be introduced by industry on its own. First,
the first-and-best-offer approach, seeks to remove such controversies from the
judicial system altogether. Second, the rule-of-reason approach, seeks to improve
litigation procedure and thereby produce better decisions. Third, the state-of-the-
science conference, seeks to achieve both results: sometimes it will eliminate the
controversy; where it does not, it improves dispute resolution. Industry decries
expansion of the role of government in its affairs. Many of its leaders would
welcome these or other kinds of voluntary self-action if they were made to
understand what could be achieved.

The academic community has a responsibility to develop the tools with which
the SDR problem may be relieved and to educate all sectors of society in their
use. The focus on industry in this area is fortunate and should be an encouragement
because academe sorely needs replacements for the reduced government contri-
butions of recent years. Industry is a natural and important source of funding
for empirical research and other educational activity of this type.

Society must learn how better to manage technology while it still has options
that preserve human rights as we know them. The longer we wait, the more
technology dictates the response, and the fewer the options. Academe should lead
the way.

45 The United States Senate has recently investigated such pleas. See e.g., S. 1999, 99th Cong.. 1st Sess., 131 CoNG. Rec. $18,410-18 (1985) (The Products Liability Voluntary Claims and Uniform Standards Act); The Products Liability Voluntary Claims and Uniform Standards Act Hearings on S. 1999 Before the Consumer Subcomm, of the Senate Comm. on Commerce, Science and Trans portation, 99th Cong., 2d Sen. (1985) (Hearings concluded March 11, 1986, unpublished transcript on file with Subcomm.); Moore, Disclosure Provision Added in Product Liability Bill, Legal Times, Jan. 13, 1986, at 4, col. 1 (general discussion of S. 1999).

ABSTRACT

This paper will provide an overview of the legal controversy about the extent of copyright protection that is appropriate for software user interfaces. The controversy reflects different views of how traditional principles of copyright law should be applied to software. After a brief introduction to copyright principles, the paper will set forth an argument for maximal copyright protection for software user interfaces, and then an argument for minimal copyright protection for user interfaces. Both arguments apply copyright principles; they simply draw on different parts of copyright doctrine in doing so. The paper does not aim to resolve the debate, but only to familiarize the user interface design community of the legal context in which the debate is taking place.

KEYWORDS:

Copyrights, intellectual property, lawsuits, "look and feel", and patents.

INTRODUCTION

For many years, the user interface research and design communities were blissfully ignorant of intellectual property problems that might arise because of similarities in user interfaces. Then in 1987 Lotus filed a lawsuit against two of its competitors in the spreadsheet software market, alleging infringement of the Lotus 1-2-3 copyright because of similarities between the 1-2-3 user interface and the interfaces of its competitors' programs. The next year Apple Computer filed a similar lawsuit against Microsoft and Hewlett-Packard and Ashton-Tate filed against Fox Software, alleging copyright infringement based on user interface similariues. Today, the user interface research and design communities have a sense of urgency about the • need to resolve the legal issues.

Permission to copy without fee all or part of this material is granted provided that the coples are not made or distributed for direct commercial advantage, the ACM copyright notice and the title of the publication and its date appear. and notice is given that copying le by permission of the Assoolation for Computing Machinery. To copy otherwise, or to republish, requires a fee and/or specific permission.

The debate about legal protection issues within the user interface research and design communities tends to focus on an assessment of the impact these lawsuits will likely have on the industry and on the research community, however they are resolved. Those who think that Lotus or Apple should win their lawsuits against their competitors will tend to be people who think that strong protection of user interfaces through copyright would be good for the industry. Those who think the defendants in those cases should win will tend to be poople who think that strong copyright protection for user interfaces through copyright would be bad for the industry. While much might be said pro and con on this issue, the point here is that for the technical community, the debate will tend to focus on the community's assessment of the impact of protection on that community.

The legal debate over the extent to which user interfaces are protectabic by intellectual property law is not indifferent in the impact of the lawsuits on the industry. The ultimate aim of the copyright law is to foster the development of a healthy creative environment, and judges try to apply copyright law to achieve this ulumate goal. But Uic legal debate does not begin and end with an analysis of which legal conclusion would have the most salutary impact on the industry. Rather, the legal debatc takes place in the context of established legal doctrines that have been developed over the centuries as copyright law has been applied to a wide vancty of creauve works. Because these doctrines are not widely known outside the legal community, this paper will explain them and will discuss how they might be applied in the context of disputes over user interface prolocuon.

The legal debate exists because arguments can be made, from established copyright doctrines, that will support both a maximalist, pro-protocuon posivon, and a minimalist or anu-protecuon position. In copyright lawsuits. considerations of the likely impact of protection on the industry tend to be woven, as a kind of supplementary thread, into the fabric of the main argument about the application of copyright doctrine. This will likely be true

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in the context of software user interfaces as well. In the current round of user interface litigauons, much will turn whether the plaintiff's succeed in their characterizations of the defendants' products as "look-alikes" or whether the defendants can cstablish an alternate characterization of their products as "work-alikes." This, in a nutshell, is what the legal debate is about.

RULES OF COPYRIGHT LAW

Under Arucle I, secuon 8, clause 8. of the U.S. Consuшution, Congress is authorized to pass laws giving authors exclusive rights (for limited umes) in their wnungs in order to promote the progress of science and the arts. The copyright law follows this Consuшtional mandate by giving authors of "original works of authorship" that have been fixed in some tangible medium (e.g., written on paper) a set of exclusive rights over their works for the life of the author plus fifty years. The copyright law aims to give authors incentives to be creative and to share the fruits of their creauve efforts with others by means of this grant of exclusive rights.

Exclusive Rights

Among the exclusive rights copyright law gives to authors are the rights to make (or authorize the making of) copics of their original works, to distribute copics of them, and to prepare derivative works. An "exclusive right" is the right to exclude others. To have an exclusive right to make copies, then, means having a legally enforceable right to stop those who want to make copies of a work from doing so unul and unless they obtain permission from the author. One who goes ahead and makes copies anyway can be sued for copyright infringement because this act consututes a violation of the author's exclusive night of copying,

It is an article of faith in copyright law that the grant of exclusive nights gives authors incentives to create because of the control these nights give authors over unauthorized exploitation of their works. Although not a guarantee that a creator will reap a substantial reward for his or her creative work, exclusive rights permit the creator to exercise some power over the commercial exploitation of his or her work when and if it becomes valuable.

"Idea" vs. "Expression"

Although giving authors exclusive rights in order to provide them with incentives to create is an important purpose of copyright law, it is not the only purpose, or even the main purpose, of this law. Over and over, the judges m the copyright caselaw repeat that the main purpose of the law is to promote the growth and dissemination of knowledge and creativity; the grant of exclusive rights is merely a means to this larger end. In order that the rights of already published authors will not interfere with this larger purpose of the law, copyright law provides that copyright protection is only available for the "expression" of the author. Copyright protection does not extend to the

MAY 1989

ideas, information, discovenes, or the like, that may be contained in a copyrighted work. Anyone is free to borrow the "ideas" from a copyrighted work and use them in his or her own work. All that is prohibited is taking the work's "expression."

"Expression" As a Metaphor for What is Protectable

Defining what "expression" includes is no small task for copyright, except of course when someone copies the text of a copynghted work exactly, word for word, line for line. Then it is easy to tell that an infringement of the exclusive right to copy has occurred. However, sometimes copyright infringement has been found to exist even when there has not been exact copying of the protected work. Copyright law does not want plagiarists to escape from liability by merely making minor changes to disguise their copying, so copyright law has come to construc "expression" to include more than just the literal words or lines in a text in a dramatic play, for instance, the detailed sequence of events within a scene or set of scenes might be considered protected "expression" of the copyrighted play. The overall plot of the play, however, would be the work's "idea" which copyright would not proteCL

Copyrights in Compilations

Similarly, in a copyrighted compilation (such as a telephone directory), it is not the specific bits of compiled information that a copyright will protect, but only the manner in which the compiler selects, orders, and arranges the information. That sclccuon, ordering, and arrangement, if original, is the "expression" that copyright will protect. (Copyright has a rclauvely low level originality standard; something noed only owe its origin to the author and exhibit some small quantum of creativity to be "original")

Copyright's Exclusion of "Useful" Works Besides not protecting ideas and information, copyright law also has a rule that bars "useful" works from the protection of copyright (By "useful," copyright means having a function beyond the conveying of information and displaying of an appearance.) Machines, for example, are not copyrightable on account of their utility. It is the job of the patent law to grant exclusive rights to qualified inventors of new machines, not of copyright. Only if there are some artistic feature of a useful work that can exist separately from the useful parts and can stand alone as a work of art will copyright protect any part of a useful article. (E.g., a sculpture can be copyrighted even if us creator intends to use it as a lamp base.)

An outgrowth of this copyright rule against protecting useful works is another copyright rule providing that although one may copyright a drawing of a machine, the copyright will only protect the drawing as a drawing. To put it another way, the copyright will protect as "expression" the individual manner in which the drafter

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depicted the machine. The design of the machine, however, will be considered part of the "idea" of the irawing that the copyright will not protoct (The copyright statute in a similar vein says that processes, procedures. systems, and methods of operation are similarly not protectable by copyright. All of these things are, in copyright parlance, unprotectable "ideas" even if depicted in otherwise original works of authorship.)

Scope of Protection Varies by Nature of the Work There are two other "idca/expression" rules of copyright law that should be mentioned if one is to understand the debate about protection of software user interfaces through copyright law. One is that the scope of copyright protection tends to varies depending on the nature of the work. Artistic and fanciful works, in general, enjoy the broadest scope of copyright protection. Factual works have a somewhat narrower scope of copyright protection because of the perceived need to allow subsequent authors to borrow the facts, theories, and the like from earlier authors' works in order to make their own contribution to the growth of knowledge. Funcional wrings (such as the drawing of the machine) receive very narrow protection from copyright. It usually takes virtually exact duplication for infringement to occur.

How Broad Are the Expressive Possibilities?

The other is the rule that the scope of copyright will vary according to how broad or narrow are the expressive possibilities open to an author for the subject he or she has chosen to address. When there are only a very small number of ways to express an idea, copyright law will not protect any of them in order not to give the first author to express the idea a monopoly on the idea.

As abstract as these rules and doctrines may seem to the uninitiated, they are the life blood of copyright liúgation. The dispute raised in any copyright lawsuit will be transmuted by the lawyers and judges into a debaic about how these rules and doctrines of copyright should be applied in the particular case before them. Not surprisingly, plaintiffs always claim that what the defendants took from their works was "expression," while defendants claim to have taken only "idca," or only so much of the expression as was necessary to take the idea. Each of them will have found prior decided cases which they think support their position. Whoever persuades the judge wins.

THE MAXIMALIST VIEW OF COPYRIGHT
PROTECTION FOR USER INTERFACES

In this section, I will set forth an argument that might be made in favor of giving very broad and strong protection to software user interfaces through copyright law. The argurnent posed here will differ from arguments that might be made by a lawyer in a particular case because it will be made in the abstract, whereas in any particular case, the

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facts of that case would be integrated into the legal analysis of the issues. Also, the argument made here will not include, as a lawyer's argument generally would, discussion of specific prior decided cases, as they bear on the issue at hand. Rather, the argument made here will go straight to the substantive points that a lawyer might make in favor of strong copyright protection for user interfaces.

Five basic points will be made in favor of the maximalist position: First, strong protection of user interfaces by copyright law is needed to allow innovative developers to recoup their research and development expenses and reap their just rewards for creation of a valuable product (the "capitalism" argument). Second, because there are always other ways to design a user interface besides copying the interface of a successful product, there is no interference with the ability of other firms to create competitive products (the "there's always another way" argument). Third, it isn't just particular aspects of software user interfaces that copyright protects; it's the overall impression (or "look and feel") of them as well; and so it doesn't mauer if there are some differences between the interfaces if the look and feel are the same (the "indivisibility" argument). Fourth, it is irrelevant that an infringer's software or interface may have improved on the copyright owner's product for it is the copyright owner who has the exclusive right to make improvements to its software (the "enhancement is irrelevant" argument). And fifth, if compellors are prevented from copying their competitors' user interfaces, they will become more innovauve themselves, and that will benefit the public (the "trickle down innovation” argument).

The "Capitalism" Argument

One of the important purposes of copyright law is lo encourage persons and firms to make investments of their time, money, and talent to create new works of authorship which can be commercially distributed to the public. Without the kind of protection that copyright's grant of exclusive rights confers on authors, investment in creative works would fall off dramaucally, and the consuming public would be the poorer for it because fewer innovauve products would be created and made available. Software is quite an expensive kind of intellectual property to create, and one that is parucularly susceptible to copynight infringement because of its ease of replication.

By passing a law in 1980 to give copyright protection to computer programs, Congress recognized that software was a suitable subject mauer for copyright protection and that without copyright protection, there would be msufficient incentives for investment in the creation of software. Congress decided to treat software as a literary work and intended for the same copyright rules to apply to it as apply to all other literary works. After all, software is "wruen“ just as a book or play might be. Congress was confident that copyright proicction would not "overprotect" software

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