COPYRIGHT PROTECTION FOR
USER INTERFACES
By
Michael Zarrabian
A "user friendly" computer interface is a strong selling point for all personal computers and software applications. This accounts for the success of Graphical User Interfaces ("GUI") and the importance of menu systems for various software applications. One way of protecting a GUI or a menu system is by obtaining copyright registration. However, the extent of copyright protection depends on the extent to which a GUI is considered "functional," or, for a menu system, the extent to which the menu system is considered to be a "method of operation."
Software giants Microsoft, Apple, Borland, Lotus and
others depend on software copyright protection for
increasing their profit margins. However, extensive litigation
between Apple and Microsoft,(Apple Computer Inc., V.
Microsoft Corporation, 35 F.3d 1435 (9th Cir. 1994))
and between Lotus and Borland (Lotus Development
Corp. v. Borland International Inc., 34 U.S.P.Q.2d 1014
(1st Cir. 1995)) has shown the relatively shallow copyright
protection available for user interfaces. As discussed
below, recent decisions by the federal courts of appeals
indicate a general trend in restricting protection afforded by
the copyright laws while suggesting that patent protection is
a more appropriate alternative.
Apple and Microsoft recently battled over the scope of copyright protection for Apple’s GUI. Apple had registered its Lisa and Macintosh GUI for copyright as an audiovisual work before Microsoft released Windows 1.0 with a similar GUI. Apple first complained, but later agreed to license its GUI to Microsoft and to allow Microsoft to sublicense derivative works generated by Windows 1.0. Later Microsoft released Windows 2.03 and 3.0, and Microsoft’s licensee, Hewlett-Packard Company (HP), released NewWave 1.0 and 3.0. Apple again complained that these versions exceeded the license and infringed Apple’s copyright.
The U.S. Court of Appeals for the Ninth Circuit held that because there was an agreement by which Apple licensed Microsoft to make certain derivative works, the language of the license agreement determines the propriety of Microsoft’s copying. Therefore, Microsoft was able to rely on the license as a partial defense to copyright infringement.
The Court also determined that Microsoft was free to copy the unlicensed "functional" elements of Apple’s GUI. This is because there are only a limited number of ways the basic idea of GUI can be expressed differently. For example, overlapping windows have been the clear preference in graphic interfaces. A programmer has only two options for displaying more than one window at a time: either a tiled system, or an overlapping system. The number of feasible alternatives in implementing certain elements of a GUI affect the scope of copyright protection. In other words, the fewer and the more difficult the alternatives, the broader the breadth of a license for copying the visual displays of a GUI.
The Court noted that GUIs generated by computer programs are partly functional. They are a tool to facilitate communication between the user and the computer. Creativity in user interfaces is constrained by the power and speed of the computer. For example, hardware constraints limit the number of ways to depict the movement of a window on the screen visually. Many computers do not have enough power to show the entire contents of the window that is being moved, and the illusion of movement must be shown by using the outline of a window or some similar feature. Design alternatives are further limited by the GUI’s purpose of making interaction between the user and the computer more "user-friendly". These and other ergonomic factors which limit the range of possible expression in GUIs, properly govern the scope of copyright protection.
Apple argued emphatically that Microsoft copied the whole "look
and feel" of Apple’s GUI and that Apple’s GUI should not be
"dissected" to determine which of its elements were protected by
copyright and covered by the license. But, the Court disagreed,
despite the fact that GUIs are thought of as the "look and feel" of a
computer which depends on the integrated appearance of a GUI.
Therefore, companies should be aware of the limited protection
provided by the concept of "look and feel" because it can fall prey
to an element by element comparison between an existing GUI and
a licensed derivative GUI. Further, it appears that, even in the
absence of a license, one can argue that a derivative GUI, copying
the "look and feel" of an existing GUI, is not infringing if there are a
limited number of ways that the basic idea of the existing GUI can
be implemented. The Ninth Circuit seems to suggest this result by
stating that "Apple cannot get patent-like protection for the idea of a graphical user interface."
The same ergonomic factors which limit the range of possible expression in GUIs can also limit the range of possible expression in multimedia interfaces. Specifically, a multimedia interface generated by computer programs is a tool to facilitate communication between the user and the computer; hardware constraints limit the animation aspects of multimedia interfaces; and design alternatives are limited by the "user-friendly" requirements of a computer interface. As such, according to the Apple and Lotus decisions, the copyrightability of multimedia interfaces is questionable. Therefore, multimedia systems can also benefit from patent protection especially since increasingly more patents on computer programs are granted.
Similar analysis applies to menu systems or other user interface schemes which may be considered as a "method of operation" under copyright laws as Lotus Development Corp. discovered when it brought a copyright infringement action against Borland International Inc. for copying the entire Lotus 1-2-3 menu tree in its Quattro program. The menu system of Lotus 1-2-3 is a series of hierarchical menu commands, such as "Copy," "Print," and "Quit." Users choose commands either by highlighting them on screen or by typing their first letters. In all, Lotus 1-2-3 has 469 commands arranged into more than 50 menus and sub-menus. The U.S. Court of Appeals for the First Circuit focused on the question of whether a computer menu command hierarchy is copyrightable and, specifically, whether the Lotus command hierarchy is copyrightable subject matter. The court found that the Lotus menu command hierarchy is not copyrightable because it is a "method of operation" which is foreclosed from copyright protection under 17 U.S.C. § 102(b).
The court reasoned that the Lotus menu command hierarchy provides the means by which users control and operate Lotus 1-2-3. Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3’s functional capabilities. Further, the Lotus menu command hierarchy does not merely explain and present Lotus 1-2-3’s functional capabilities to the user; it also serves as the method by which the program is operated and controlled.
Lotus argued that by choosing and arranging the Lotus command terms, Lotus developers made some expressive choices that are copyrightable. However, the court stated that expression is not copyrightable because it is part of Lotus 1-2-3’s "method of operation." The court further stated that "[w]e do not think that ‘methods of operation’ are limited to abstractions; rather, they are the means by which a user operates something. If specific words are essential to operating something, then they are part of a "method of operation" and, as such, are unprotectable. This is so whether they must be highlighted, typed in, or even spoken, as computer programs no doubt will soon be controlled by spoken words."
As the decisions of the First and the Ninth Circuits demonstrate,
the patent laws can provide better protection for the patentable
functional aspects of a GUI or a menu system than the protection
afforded under the copyright laws. For GUI systems this is
especially true when alternative implementations of the GUI are not
feasible. Therefore, computer and multimedia companies should
seriously assess the functional aspects of their user interfaces and
software systems before relying on copyright protection as a full
measure of protection. In other words, simply copyrighting an entire
software system does not provide copyright protection for the
functional aspects of the software system. The above courts are
explicit about the propriety of patent protection for functional
aspects of computer user interfaces.
It is worthy to note that recently the Supreme Court of the United States denied certiori to hear the Apple case and affirmed the First Circuit’s decision in a 4-4 split without any written opinion, and, consequently, no binding effect on lower courts. Therefore, it is likely that other courts will follow in the footsteps of the First and Ninth Circuits. Thus, when considering copyright protection for computer software systems, detailed investigation of patentability of the software systems is crucial in obtaining proper protection.
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