Class 3 Copyright, Winter, 2010 Ideas v. Expression Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/[email protected]

Class 3Copyright, Winter, 2010

Ideas v. Expression

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 19, 2023 Copyright © 2005-10 Randal C. Picker 2

Baker v. Selden

Core Facts 1859: Selden copyrights book “Selden’s

Condensed Ledger, or Bookkeeping Simplified”

Book is description of approach to bookkeeping and blank forms with lines and headings designed to illustrate the implementation of the system


Baker v. Selden

Baker creates forms with “a different arrangement of the columns” and “different headings”

Selden claims a copyright violation


Patenting the System

Should Selden Have Sought a Patent on the Bookkeeping System? Is this eligible? If so, what are the advantages of getting a

patent (relative to copyright)? Disadvantages?


Patenting the System

Issues Patent system runs tougher filters for eligibility

Novelty/nonobviousness means leap relative to current knowledge must be meaningful

Patent office judges that initially Business method patent history quirky

If patented, can block other uses of the system Shorter period of protection (20 years vs. life of the

author + 70 years (302(a)))


Copying the Book

Hypo Selden publishes copyrighted book as in

case, but no forms Baker copies the book, word-for-word

Is the book copyrightable? Does Baker infringe the copyright?


Answer

Yes “There is no doubt that a work on the

subject of book-keeping, though only explanatory of well-known systems, may be a subject of a copyright; but, then, it is claimed only as a book. … But there is a clear distinction between the book, as such, and the art which it is intended to illustrate.”


Not Copying the Book

Hypo Selden publishes copyrighted book as in

case, but no forms Baker reads the book, understands the

system, and writes a book using Baker’s expression to describe the system and copies no language from Selden’s book

Copyright infringement?


Answer

No


Painting by Numbers Hypo

Selden creates the painting the “Condensed Ledger”

It represents the bleakness of human existence, the desire to reduce human existence to meaningless figures

Baker sees the painting and paints one exactly like it



Answer

Infringement Painting will qualify as a “pictorial, graphic

and sculptural work” Copyright eligible under 102(a)(5) Owner of copyright has exclusive right to

copy under 106(1)


Copying the Forms Book

Hypo Selden publishes a book of blank forms Baker copies the book, form-by-form

Is the book copyrightable? Does Baker infringe the copyright?


Answer

The Court concludes: “The conclusion to which we have come is,

that blank account-books are not the subject of copyright; and the mere copyright of Selden’s book does not confer upon him the exclusive right to make and use account-books ruled and arranged as designated by him and described and illustrated in said book.”


Why?

Actual Facts Baker created forms different from Selden’s Why shouldn’t we think of that as an

alternative expression of the system Therefore, no infringement if Selden had

copyright in form, and no reason not to allow copyright to Selden?


Forms As Necessary Incidents to System

Says the Court: “And where the art it teaches cannot be used

without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.”


Idea/Expression Dichotomy

No Control over Ideas You cannot use copyright to gain control

over an idea (102(b)) Copyright Protects Expressions of Ideas

My expression of an idea doesn’t block you from creating your expression of the idea

Both of our expressions will be protected under 102(a)


In Baker v. Selden

The Idea Selden’s system of bookkeeping

The Expression Selden’s book describing the system

And the Forms? Court seems to assume small number of

possible expressions in creating forms and therefore not copyrightable


Copyright Office on Blank Forms

“Blank forms and similar works designed to record rather than to convey information cannot be protected by copyright. In order to be protected by copyright, a work must contain at least a certain minimum amount of original literary, pictorial, or musical expression. Copyright does not extend to names, titles, and short phrases or clauses such as column headings or simple checklists. The format, arrangement, or typography of a work is not protected. ”


Lotus v. Borland

Core Facts Lotus 1-2-3 emerges as dominant

spreadsheet Lotus has command interface with 469

commands and fifty menus and submenus End-users create combinations of

commands in macros


Lotus v. Borland

Borland enters with new spreadsheet Quattro Pro after three years of development

QP comes with Borland designed interface but also with a “Lotus Emulation Interface”

If user chooses latter, Lotus macros will work with QP and end-user need not learn new commands


Lotus v. Borland

Lotus wins on summary judgment Borland drops the emulation interface but

keeps a Key Reader program to process Lotus macros

Lotus claims copying of the interface and infringement: Should they win?


Lotus Questions

1. Why did Borland want to imitate Lotus’s interface?

2. How will interface creation incentives be muted if we allow imitation?

3. What benefits will flow from allowing imitation?


Managing Switching Costs: Lotus v. Borland

Lotus’s Position Dominant Spreadsheet Lotus Interface as Standard

Embrace and Extend Strategy Standard Microsoft strategy Used by Borland here Adopt predecessor’s platform (“embrace”) and

extend it by adding new features Minimizes switching costs


The Mechanism for the Entry Barrier

Incumbent Leverages Copyright to Impair Competition In US, copyright arises with fixation and

lasts and lasts Easy property vests control in author Opportunistic assertion of copyright to

control related market


Lock In and Entry Barriers

$10 to Create System, $2 to create link What is the entry cost for the 2nd entrant?


Decentralized Investments and Lock-In

Initial Entrant Expenditure: $10 Customer Expenditures $2 a piece, total $16 Entrant faces $26 entry cost

Initial customer expenditures create entry barrier

Appropriate first mover advantage?


Section 102(b)

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.


Locating the Realm of Copyright Protection

Three places: The spreadsheet itself/the Lotus screen

displays The computer source code The menu commands and hierarchy/the

macro structure


The Spreadsheet/The Screen Displays

Understanding Ideas and Expressions An infinite number of computer programs

could be created from a programming language

The spreadsheet is a particular expression of a particular programming language


The Spreadsheet/The Screen Displays

Shouldn’t Lotus have contended that Borland’s spreadsheet—the grid layout and structure of labeling for rows and columns—infringed on the corresponding expression that Lotus made in Lotus 1-2-3?

Also see footnote 10: “ … [W]e take no position on whether the Lotus 1-2-3 screen displays constitute original expression capable of being copyrighted.”


The Computer Source Code

Hypo Lotus creates computer source code for

Lotus Borland copies it, byte-by-byte



Answer

Yes After some work in the caselaw; see

footnote 11, citing Altai; see also Apple v. Franklin, 714 F.2d 1240 (3d Cir. 1983)


The Menu/Commands and Expression

Designing the Menu and Commands Many choices possible, perhaps an infinite

number Lotus chose one from the multitude

Shouldn’t this be thought of as expressive? If not expressive enough, can’t Lotus fix

that by being more expressive?


Expression Isn’t the Point Here

Look at 102(b) Again In no case does copyright protection for an

original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work


Expression Isn’t the Point Here

Meaning? Even if expressive, if the expression

operates as a method of operation, the expression can’t be copyrighted

How should we determine what constitutes a method of operation under Sec. 102(b)?


Property Rights Alternatives

Strong-Form Property Rights Lotus has a copyright in the interface and

Borland cannot use it without a license First-Mover Property Rights

Lotus has full control over its interface and can change it at any time without advance disclosure to competitors


Property Rights Alternatives

Weak-Form Property Rights Create duty of predisclosure of changes Limit right to change interface?


Paper on Lotus and More

Copyright and the DMCA: Market Locks and Technological Contracts http://papers.ssrn.com/sol3/papers.cfm?

abstract_id=690901

Documents

Class 3 Copyright, Winter, 2010 Ideas v. Expression Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/[email protected]