American University International Law Review Volume 7 | Issue 2 Article 3 1992 Lotus Development Corp. v. Paperback Software Int'l: Copyrightability for the User Interface of Computer Software in the United States and the International Realm Lionel M. Lavenue Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Lavenue, Lionel M. "Lotus Development Corp. v. Paperback Software Int'l: Copyrightability for the User Interface of Computer Software in the United States and the International Realm." American University International Law Review 7, no. 2 (1992): 289-343. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. NOTES & COMMENTS LOTUS DEVELOPMENT CORP. v. PAPERBACK SOFTWARE INT'L: COPYRIGHTABILITY FOR THE USER INTERFACE OF COMPUTER SOFTWARE IN THE UNITED STATES AND THE INTERNATIONAL REALM Lionel M. Lavenue* If I have seen further it is by standing on ye shoulders of Giants.' INTRODUCTION Just as computers 2 have become an integral element of the legal * J.D. Candidate, 1992, Washington College of Law, The American University. This Note was submitted to the American Intellectual Property Law Association (AIPLA) for the 1992 Robert C. Watson Award and to the American Society of Com- posers, Authors, and Publishers (ASCAP) for the 54th Annual (1992) Nathan Burhan Memorial Competition. 1. Sir Isaac Newton, Letter to Robert Hooke (February 5, 1675/1676), reprinted in R. MERTON, ON THE SHOULDERS OF GIANTs: A SHANDEAN PosTscRIPT 31 (1965) [hereinafter Newton]. 2. See Stern Elecs. Inc. v. Kaufman, 669 F.2d 852, 853-56 (2d Cir. 1981) (defining the term "computer" and explaining how the device works); Williams Elecs., Inc. v. Artic Int'l, Inc., 685 F.2d 870, 871-74 (3d Cir. 1982) (establishing the definition of an electronic computer). The electronic computer ("computer") performs mathematical and logical functions electronically. A computer consists of hardware and software. Hardware refers to the physically embodied parts of the computer, including the metal box, the circuits (e.g., the central processing unit (CPU)), the input devices (e.g., the keyboard and mouse), the output devices (e.g., the CRT or display screen and the printer or plotter), and the input/output devices (e.g., the internal memory, including random access memory (RAM) and read-only memory (ROM), and the external memory, including the inter- nal or external hard disk drive and 3 and or 5 and ,4 inch disk drives). Williams Elecs., Inc., 685 F.2d at 872. Software, on the other hand, refers to the written instruc- tions, prepared by a human operator, which operates the computer, also called the computer program. Id. 290 AM. U.J. INT'L L. & POL'Y [VOL. 7:289 profession, 3 so has the computer become an essential tool of modern life.' Accordingly, the men and women who make these electronic mar- vels run, these computer programmers, 5 increasingly seek greater pro- tection for the fruits of their labor. 6 Among the sources of intellectual 3. See generally Harrington, Use of LEXIS and WESTLAW Too Is Vital To Any Law Practice, NAT'L L.J., Oct. 12, 1987 at 18 (stating that "lawyers who do not know what LEXIS and WESTLAW offer are practicing law with blinders. They will suffer what they deserve."). 4. See Year of the Computer, TIME, Jan. 1, 1983, at 13 (deeming the computer "'Man' of the Year" and describing the increasing role of computers in modern life). 5. Computer programmers produce two types of computer software: operating sys- tem programs and application programs. Operating system programs-like DOS and OS/2-control the hardware and actually make the machine run. Application pro- grams instruct the computer to perform specific functions-such as word processing, data base management, spreadsheet calculations, or games. Programmers create com- puter programs through the use of a computer language. A machine language program, the lowest-level computer language or a language which the computer's CPU can un- derstand without translation, represents an object program or object code. An assembly language program represents the intermediate-level computer language. Typically, however, most programmers utilize a higher-level computer language which must be translated by a compiler into information that the computer's CPU can understand. A source program or source code, such as FORTRAN, COBOL, PASCAL, BASIC or C, affords the programmer easier access to the control of computer operations. See D. CURTIN & L. PORTER, MICROCOMPUTERS - SOFTWARE AND APPLICATIONS 36-78 (1986) (presenting the structure and mechanisms of the electronic computer); id. at 81-108 (explaining the types of computer software and how a computer program exe- cutes functions and operations on the electronic computer). 6. See Note, The Expansion of the Berne Convention and the Universal Copyright Convention to Protect Computer Software and Future Intellectual Property, 11 BROOKLYN J. INT'L L. 283, 285 (1985) [hereinafter Note, Future Intellectual Prop- erty] (describing the three means by which a programmer may seek protection of a computer program under the auspices of intellectual property: (1) patent law, (2) copy- right law, and (3) trade secret law); see also Schachter, Intellectual Property Takes Center Stage, ELECS., Aug. 1990, at 108 (addressing the development of patent and copyright protection issues for computer software). A patent generally extends a monopoly of limited duration to the inventor of the unique idea, process, or design. J. BAXTER, WORLD PATENT LAW AND PRACTICE 1 (1973). Although each nation's patent laws vary, the International Convention for the Protection of Industrial Property established a system of uniform international treat- ment (or "national treatment"). This Convention provides for reciprocal protection be- tween all signatory countries in that one country affords the same protection to all computer software marketed in another signatory country as that signatory grants to its own nationals. CONVENTION OF PARIS FOR THE PROTECTION OF INDUSTRIAL PROP- ERTY, Mar. 20, 1883, revised at Lisbon, Oct. 31, 1958, 13 U.S.T. 1, T.I.A.S. No. 4931, 828 U.N.T.S. 107. At present, however, only the United States recognizes the patenta- bility of certain types of software. Note, Future Intellectual Property, supra, at 290. See Diamond v. Diehr, 450 U.S. 175, 182-84 (1981) (first establishing the patentability of computer software for a computer program which controlled the curing of tire rubber). Trade secret laws usually encompass an implied contractual relationship between the proprietor and user of an idea, process, or design. 12 BUSINESS ORGANIZATIONS, MIL- GRAM ON TRADE SECRETS § 2.01 (1984). The advantage of trade secret law is theoriti- cal uniformity, in that most nations provide some sort of trade secret protection. Note, Future Intellectual Property, supra, at 296. For mass-marketed computer software, 1992] LOTUS DEV. CORP. property protection, copyright law represents the primary means of se- curing an author's rights in computer software.7 Hence, programmers have turned to the sources of both national and international copyright law in protecting the basic computer program (the literal manifesta- tions of the programmer's work) as well as the programmer's unique expressions of creativity and originality within the work (the nonliteral manifestations of the computer program) . Internationally, copyright law represents a complex system of inter- related agreements through which member-nations honor the copyright laws of other member-nations.9 Because each nation maintains different copyright laws, however, the term "international copyright" presents a somewhat misleading concept. 10 In resolving an international copyright law conflict, the parties look not to some finite body of law known as however, trade secret law fails to provide adequate legal protection, even when the software contains a licensing agreement. Id. at 298-99 (citing M. EPsrEIN, MODERN INTELLECTUAL PROPERTY 217 (1984)). This failure results from the very essence of trade secret law-the secrecy-because trade secret directly contrasts with the re- quired public disclosure of mass-marketed software information. See M. Scorr, Co'- PUTER LAW § 4-25 (1984) (addressing the secrecy requirement of trade secret law); see also T. HARRIS, THE LEGAL GUIDE TO COMPUTER SOFTWARE PROTECTION: A PRACTICAL HANDBOOK ON COPYRIGHTS, TRADEMARKS, PUBLISHING, AND TRADE SECRETS 135 (1985) (addressing the unavailability of trade secret protection after disclosure). A copyright grants the exclusive rights of reproduction, distribution, adaptation, per- formance, and display to the owner for the life of the author plus fifty years. In the case of a corporate author, the protection exists for 75 years after the date of first publication or 100 years after the date of creation, whichever expires first. See J. HEL- LER & S. WIANT, COPYRIGHT HANDBOOK 7 (1984) (describing the general rights of the copyright owner and the term of copyright protection). 7. Note, Future Intellectual Property, supra note 6, at 283. 8. The "nonliteral manifestations of a computer program" include all components