In early August Judge Robert Keeton issued another important ruling in Lotus Development Corporation’s closely followed computer software copyright case against Borland International, Inc.
Background. We have reported extensively on earlier decisions in this litigation. To summarize: in July 1992, Judge Keeton held that the Lotus 1-2-3 menu commands and command structure are protected by federal copyright law, and that by copying the menus and command structure, Borland had infringed Lotus’s copyright. Earlier this year, in June 1993, Judge Keeton rejected various defenses that had been raised by Borland.
The Key Reader. Late last year Lotus formally raised new claims of infringement by Borland. Specifically, Lotus alleged infringement based on the so-called “Key Reader” feature that has been present in Quattro Pro 2.0 and later versions, as well as Quattro Pro SE and Quattro Pro for Windows. The Key Reader translates a macro written in 1-2-3 into a form that can be executed by Quattro. This encourages 1-2-3 users to convert to Quattro, with the assurance that they will be able to continue to use their 1-2-3 macros.
The Key Reader is activated when the Quattro program is executing a macro and it encounters the slash key – “/”. This tells the program to interpret the commands from that point forward as if they were written for Lotus 1-2-3, not Quattro. The program refers the 1-2-3 commands to a computer file (invisible to the user) that holds a listing of the first letters of the 1-2-3 command names. The commands are translated from that list into a form that can be understood by Quattro.
Borland argued, and Judge Keeton acknowledged, that in order to permit Quattro to translate 1-2-3 macros it was essential that Quattro have a representation of the 1-2-3 menu hierarchy somewhere within the Quattro program code, to serve as a reference point for the translation.
However, Judge Keeton held that even though Borland had copied only the first letters of menu commands (rather than the complete menu command name), and that the structure was expressed in a different form than Lotus used on the screen, Borland had once again infringed Lotus’s copyright. The Judge rejected Borland’s argument that the menu structure and first letters of the menu commands constitute a “system” that are not protected under copyright law. And, critical to any finding of copyright infringement, the Judge held that Borland had created “a virtually identical copy of the menu structure and organization of Lotus 1-2-3, using the first letter of command names and other symbols to delineate that structure.”
This case falls on the cutting edge of software copyright law. The Judge was asked to decide whether it was copyright infringement for Borland to have taken the first letter of each command in a menu hierarchy that is used on display screens, put the letters in a file in a similar order but a different format, make the file inaccessible to users, and use that file to translate commands in the original system into commands in an admittedly non-infringing program. Based on our review of the decision and the party’s briefs, we think his decision goes too far.
At the heart of every copyright infringement case are the requirements of access and substantial similarity. While there is no question that Borland had access to Lotus’s menu hierarchy, there is serious doubt as to whether Borland’s Key Reader met the requirement of substantial similarity. The only copyrightable aspect of 1-2-3’s command language is its organization into a hierarchy of menus. It is this menu structure, not the commands themselves, that Judge Keeton has held is protected.
In continuing to use the Key Reader after Judge Keeton’s July 1992 infringement decision, Borland concluded that it would not be risking copyright infringement because it had taken only the first letter of the 1-2-3 commands and organized them not in a menu hierarchy but, as the Judge admitted, “in a different way in the Key Reader file than on the 1-2-3 display screens.”
Borland could reasonably have concluded that, if the Key Reader was challenged by Lotus, Judge Keeton would find that the Key Reader was not “substantially similar” to the 1-2-3 menus. Borland reasoned that any expressive content and most of the similarity was lost by using only the first letters of the commands, and organizing the commands differently should have assured that the Key Reader would not be infringing.
Judge Keeton’s decision is also inconsistent with other recent software copyright cases, which have been highly restrictive in their willingness to provide copyright protection to software programs. We believe that, based on these precedents, courts in other circuits would have refused to find infringement, based on the substantial differences between the Key File and 1-2-3.
Soon after this decision Borland and Lotus agreed to entry of an order enjoining Borland from further copying the 1-2-3 interface. This clears the way procedurally for Borland to appeal all of Judge Keeton’s decisions to date to the federal appeals court in Boston. At the same time, however, Lotus will be preparing its damages case against Borland. Judge Keeton has scheduled a jury trial in that case to begin in October 1994.
Postscript: As we note in a later article, the U. S. Court of Appeals for the First Circuit reversed Judge Keeton’s decisions in this case. In its decision, the First Circuit made no mention of the key reader issue.