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Judge Tells Lotus and Borland to Prepare for Trial

April 1992

Not all cases are resolved by trial or settlement. Litigation can be concluded without either if one of the parties persuades the judge that there are no material facts in dispute, and therefore “summary judgment” should be granted by the judge, without trial, to that party by applying the law to the undisputed facts.

Last May, Lotus filed a 102 page brief arguing for this result in its copyright infringement suit against Borland. Borland responded in kind by filing a 185 page brief opposing Lotus’ motion, and asking Judge Keeton to grant summary judgment in Borland’s favor. In addition, Lotus and Borland provided the judge with 37 binders of exhibits, 8 software packages, 3 videotapes and accompanying briefs and memoranda, the titles of which alone would fill up the remainder of our Bulletin.

Although one might think that, somewhere in this mass of information, Lotus and Borland would have addressed the relevant legal issues, Judge Keeton did not think so. The judge concluded that while Lotus had focused its motion on wholesale copying, Borland had not copied the 1-2-3 user interface as a whole. Therefore, Lotus had not demonstrated that it was entitled to summary judgment. Likewise, Borland had failed to prove that whatever elements it may have copied from 1-2-3 were not protected by copyright law. The judge held that “a more precise focus than Borland has presented” was necessary to determine what elements of 1-2-3 Borland had copied, and whether “one, or more, or some set of those elements are copyrightable.” The Judge rejected Borland’s argument that anything less than wholesale copying fell short of copyright infringement.

Judge’s Keeton’s lengthy opinion is notable in several additional respects. The judge essentially reaffirmed his opinion in Lotus v. Paperback, where he held that the user interface of 1-2-3 is protected by copyright law. Moreover, the judge focused extensively on the scope of the legal and factual issues in the case and tentatively decided that, even though Borland had requested a jury, the complexity of the case made it inappropriate for a jury trial.

TLB Comment: Lotus took a substantial gamble when it sought summary judgment in this case. Losing the motion has cost it some of the momentum it had going into the suit propelled by its “slam dunk” victory in the Paperback decision. It is now clear that Lotus cannot expect the kind of easy victory in Borland that it achieved in Paperback.

At the same time, what should have been a major victory for Borland was tainted by some of the judge’s observations. Borland could hardly have expected that Judge Keeton would repudiate his carefully crafted decision in the Paperback decision, as Borland asked him to do. However, Borland also could not have expected that Judge Keeton would conclude, even tentatively, that the case should be tried as a bench trial, rather than a jury trial. Given Judge Keeton’s demonstrated predisposition to apply the copyright laws broadly to protect software copyright interfaces, it is to Borland’s advantage to present its defense to a jury, and the loss of that opportunity could be devastating to Borland at the trial level. On the other hand, Judge Keeton’s suggestion that he may force the case to trial without a jury raises an important issue concerning a copyright defendant’s constitutional right to a jury trial, and may provide Borland with a basis for appeal should it lose at the trial court level.