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Protecting the Look and Feel of Computer Software

1986; UC Berkeley School of Law; Volume: 1; Issue: 2 Linguagem: Inglês

10.15779/z38xw9x

1086-3818

John Pinheiro, Gérard Lacroix,

Law, AI, and Intellectual Property

level, program can be characterized as entire user interface or its total look and feel. Ultimately, most abstract level is fundamental idea or function of program. Viewed as part of this 59. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). 60. See 3 M. NIMMER, supra note 2, § 13.03[A], at 13-29 to -30. 61. majority rule is that a plot so defined is copyrightable. Id., § 13.03[A], at 13-29. See also Chafee, Reflections on Law of Copyright: 1, 45 COLUM. L. REv. 503, 514 (1945). 62. 3 M. NIMMER, supra note 2, § 13.03[AJ, at 13-25 to -26. LOOK AND FEEL 421 422 HIGH TECHNOLOGY LAW JOURNAL Vol. 1:411 hierarchy, look and feel of a program should not receive copyright protection it is positioned at abstract end of hierarchy. Second, an alternative hierarchy focuses on design structure of computer bottom layer again consists of programming code. At a somewhat more abstract level, a program is described by specific structure of subroutines. Even more abstract, a program is characterized by a flowchart. Finally, a program can be represented by an algorithm and, ultimately, by its basic idea or purpose. Under this analysis, programming code of a word processing program, for example, is clearly protected, 63 while idea of using a computer to input, store, and edit text is not protected.64 Unfortunately, look and feel does not fit within this hierarchy it consists of program's output and user interface which does not directly correspond with design structure. concept of look and feel is not a flowchart, algorithm, or any other design stage; look and feel conceptually permeates several layers of this hierarchy. Thus, overall, neither hierarchy supports copyright protection of a program's look and feel. Another difficulty is that, even assuming look and feel can be pinned to a particular level of a hierarchy, this test does not provide any guidance for determining which intermediary levels of abstraction are protected expressions and which levels are unprotected ideas. levels of abstraction test is only a starting point in understanding idea/expression distinction it does not easily differentiate between an idea and its expression. On other hand, [nlo court or commentator ... has been able to improve on Judge Learned Hand's famous abstractions test.' 65 test is useful in conceptualizing problem, but is not a means of drawing line between ideas and expressions in any given work.6 6 Judge Hand himself admitted: [n]obody has ever been able to fix that boundary [between idea and expression] and nobody ever can. 67 Therefore, the test for infringement is of necessity vague .... Obviously, no principle can be stated as to when an imitator has gone beyond copying 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be ad hoc. 68 63. See supra notes 2-3 and accompanying text. 64. See supra note 52 and accompanying text. 65. Krofft, 562 F.2d at 1163. 66. 3 M. NIMMER, supra note 2, § 13.03[A], at 13-20.1. 67. Nichols v. Universal, 45 F.2d at 121. 68. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). See Atari v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 615 (7th Cir.), cert. denied, 459 U.S. 880 (1982); Reback & Siegal, supra note 50, at 4-5 (test is subjective). 1986 LOOK AND FEEL 423 problem is even more acute when facing a new copyright issue such as proper scope of protection for look and feel of computer Deciding which levels deserve protection is more difficult in realm of computer programs because, unlike literary works, computer programs are functional, utilitarian creations. Professor Raymond Nimmer explains: [t]he software environment uniquely blends idea, expression, and process in a manner that cannot be compared readily to books or articles that describe systems. Computer programs not only describe a process or idea, but in an appropriate form directly implement it. 69 function of program pervades every level of hierarchy function can be viewed as either very concrete or very abstract. Therefore, problem of distinguishing idea from expression is even more complicated in area of functional computer Although failure of levels of abstraction test to provide a mechanism for determining which levels should be protected may not be so critical in area of literary works, this failure limits use of test in area of computer In short, levels of abstraction test is difficult to apply to look and feel of Even if applied, this test yields result that total look and feel should not be protected. B. Commercial Value Approach approach focuses on substantive of plaintiff's work. 70 [The] method is to identify commercially or artistically central elements of first work and then to inquire what effect of protecting these would be on subsequent works. 71 Advocates for protection of look and feel often try to justify copyright protection based on commercial value of software development expenditures. 72 Exclusive reliance on commercial value approach, however, raises mercantile concerns which have not been part of traditional copyright analysis.73 courts have rejected argument that an otherwise 69. R. NIMMER, supra note 18, 9 1.03, at 1-10. 70. Atari v. North American, 672 F.2d at 619; Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 361 (9th Cir. 1947). 71. R. NIMMER, supra note 18, 9 1.07, at 1-49. 72. For example, Leon Williams, president and chief executive officer of Micropro International Corporation stated in reference to Broderbund decision, [p]eople who are blazing new trails in software need this kind of protection. A lot of people are spending a lot of money and time to develop advanced software. Court backs 'Look & Feel' Copyright, INFOWORLD, Oct. 20, 1986, at 1, 8. See supra note 9 and accompanying text. Meanwhile, opponents of copyright protection for look and feel argue that protection could curtail development of software built on features of existing products. LaPlante, Suits Trigger Debate Over Ramifications, INFOWORLD, Jan. 19, 1987, at 1. 73. The decision should and will turn even more explicitly on a balance that in424 HIGH TECHNOLOGY LAW JOURNAL Vol. 1:411 uncopyrightable process should be given protection simply because plaintiff has expended a large amount of money, time, and effort in promoting, developing and ... market[ing] its system. 74 Moreover, test is premised on erroneous assumption that dollar value and creativity are synonymous. Finally, such an approach overly protects original author at expense of idea dissemination. application of this approach to Apple/DRI conflict, for example, would extend Apple's potential copyright protection to monopolistic proportions. commercial value of Macintosh resides primarily in unique user friendly environment of FINDER, heart of program's look and feel. 75 Thus, using commercial value approach, menu bars, windows, desktop, and animation sequences would all be protected since these characteristics make Macintosh easy to use, and hence commercially valuable. 76 However, allowing Apple to copyright these features would also stifle subsequent creativity.1 Although commercial value test provides some economic incentive to produce commercially valuable works, it does not optimally encourage productivity it creates monopolistic property rights. FINDER animation sequence, 78 for example, is so basic that allowing copyright protection would severely hamper competing operating systems. Although certain video screen arrangements are copyrightable, 79 extending protection to Macintosh's animation sequence would, in effect, confer a monopoly over a simplified process of inputting (or outputting) data on a computer. So characterized, sequences constitute ideas and must remain available to other computer