THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, January 8, 1996 TAG: 9601060182
SECTION: BUSINESS WEEKLY PAGE: 07 EDITION: FINAL
SOURCE: BY LEE GOMES, SAN JOSE MERCURY NEWS
LENGTH: Medium: 85 lines
A 1990 copyright lawsuit filed by Lotus Development Corp. against Borland International Inc. is set to reach the U.S. Supreme Court today.
The software law dispute could shape the ground rules for industry competition for years to come.
At the very least, the court is expected to decide if the owners of a successful computer program, simply by getting an easy-to-obtain copyright, can prevent competitors from selling programs that work the same way. Or, should they instead by required to obtain a patent, which is much harder.
The entire computer industry is paying close attention to arguments and the ultimate decision in the case. Each side is making dire claims for the future of not only software, but all of computer technology should it lose.
A dozen ``friend of the court'' briefs have been filed by outside parties in the matter, all but one of them in support of Borland, of Scotts Valley, Calif. Borland claims the command structure of a program - which allows users to create or modify documents, among other things - cannot be copyrighted any more than can the location or use of a gas pedal on a car or the control buttons on a VCR.
Lotus, now a wholly owned IBM subsidiary, has in its corner a single outside brief filed on its behalf by, among others, Intel Corp., Digital Equipment Corp. and Xerox Corp.
At issue is the Quattro Pro spreadsheet program, which Borland sold last year to Novell Corp., which itself is now trying to find a buyer for it. Back in 1990, however, Quattro Pro was rapidly gaining market share against Lotus's best-selling 1-2-3.
Quattro Pro had been built from scratch by Borland, and had its own unique method of operations. But Quattro Pro also allowed users to make the spreadsheet compatible with the Lotus 1-2-3 command system.
This feature was a bow to 1-2-3's dominant market position at the time because Borland was able to claim that 1-2-3 users could begin using Quattro Pro without any retraining. In addition, all of the many ``macros'' - small, user-created programs that perform specific spreadsheet tasks - that originally had been written for 1-2-3 could now be used, without modification, with Quattro Pro.
The legal question: is 1-2-3's menu structure a copyrightable feature of the program, as Lotus contends? Or, as Borland argues, are they non-copyrightable, and thus something another firm can freely use?
The issue comes up in the first place because of the numerous legal ambiguities associated with software - many of them the result of an early 1970s Supreme Court decision holding that software programs, in and of themselves, cannot be patented and can thus have only copyright protection.
One of the themes in the Lotus-Borland dispute involves whether Lotus is using the copyright process for what should more properly be done with patents.
Patents, by and large, are given to what the public would understand as ``inventions,'' that is, new, ``non-obvious'' and useful ways of doing things. Getting a patent is a time-consuming, often litigious, process; once granted, patents last just 20 years. A patent keeps other people out of the market even if they duplicate the ``invention'' in an original way.
Copyrights, by contrast, are given almost automatically to the original expressions of an idea, even an old idea. Conceived to encourage arts and letters, they last for 75 years, which is seen as enough time to benefit the artists and their estates. Unlike patents, copyrights do not restrict anyone's ability to enter a market; think of all the romance novels with the same basic plot and characters.
But from there, things get complicated, at least as far as software is concerned. For instance, someone who thinks up an entirely new category of software program can be awarded a patent. But the code that a programmer actually writes to bring that program to life would get a copyright.
Even when your patent runs out on your new program, you'll still have your copyright on your specific code. That means that someone who tries to recreate your software invention after your patent expires will need to take the time to do it in an original way.
Lotus says that the command system of 1-2-3 is part of the copy-rightable ``original expression'' of its programmers, just like the actual code of the program. Borland maintains that the commands are part of the program's much more utilitarian ``procedures and processes,'' which copyrights have specifically been forbidden from covering.
The proper way to have protected its command system, says Borland, would have been for Lotus to have gotten patents on it.
KEYWORDS: LAWSUIT U.S. SUPREME COURT by CNB