Class 3 Copyright, Autumn, 2016 Ideas v. Expression 11/28/2018 Class 3 Copyright, Autumn, 2016 Ideas v. Expression Randal C. Picker James Parker Hall Distinguished Service Professor of Law Ludwig & Hilde Wolf Teaching Scholar The Law School The University of Chicago

Email from Joyce Li Monkey Selfies http://www.npr.org/sections/thetwo-way/2016/01/07/462245189/federal-judge-says-monkey-cant-own-copyright-to-his-selfie https://scholar.google.com/scholar_case?q=monkey+david+slater&hl=en&as_sdt=400003&as_ylo=2015&case=9630284035660795271&scilh=0 November 28, 2018

Baker v. Selden Core Facts 11/28/2018 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 November 28, 2018

11/28/2018 Baker v. Selden Baker creates forms with “a different arrangement of the columns” and “different headings” Selden claims a copyright violation November 28, 2018

11/28/2018 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? November 28, 2018

Patenting the System Issues 11/28/2018 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 November 28, 2018

Patenting the System If patented, can block other uses of the system 11/28/2018 Patenting the System If patented, can block other uses of the system Shorter period of protection (20 years vs. life of the author + 70 years (302(a))) November 28, 2018

11/28/2018 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? November 28, 2018

11/28/2018 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.” November 28, 2018

Not Copying the Book Hypo Copyright infringement? 11/28/2018 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? November 28, 2018

11/28/2018 Answer No November 28, 2018

Copying the Forms Book Hypo 11/28/2018 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? November 28, 2018

Answer The Court concludes: 11/28/2018 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.” November 28, 2018

Why? Actual Facts Baker created forms different from Selden’s 11/28/2018 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? November 28, 2018

Forms As Necessary Incidents to System 11/28/2018 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;” November 28, 2018

Forms As Necessary Incidents to System 11/28/2018 Forms As Necessary Incidents to System Says the Court: “not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.” November 28, 2018

Idea/Expression Dichotomy 11/28/2018 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) November 28, 2018

In Baker v. Selden The Idea The Expression And the Forms? 11/28/2018 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 November 28, 2018

11/28/2018 “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. ” November 28, 2018 Copyright Office on Blank Forms

Lotus v. Borland Core Facts 11/28/2018 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 November 28, 2018

11/28/2018 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 November 28, 2018

11/28/2018 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? November 28, 2018

Lotus Questions 1. Why did Borland want to imitate Lotus’s interface? 11/28/2018 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? November 28, 2018

Managing Switching Costs: Lotus v. Borland 11/28/2018 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 November 28, 2018

Managing Switching Costs: Lotus v. Borland 11/28/2018 Managing Switching Costs: Lotus v. Borland Adopt predecessor’s platform (“embrace”) and extend it by adding new features Minimizes switching costs November 28, 2018

The Mechanism for the Entry Barrier 11/28/2018 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 November 28, 2018

Lock In and Entry Barriers 11/28/2018 Lock In and Entry Barriers $10 to Create System, $2 to create link What is the entry cost for the 2nd entrant? November 28, 2018

Decentralized Investments and Lock-In 11/28/2018 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? November 28, 2018

11/28/2018 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. November 28, 2018

Locating the Realm of Copyright Protection 11/28/2018 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 November 28, 2018

The Spreadsheet/The Screen Displays 11/28/2018 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 November 28, 2018

The Spreadsheet/The Screen Displays 11/28/2018 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? Return to this later in the quarter November 28, 2018

The Computer Source Code 11/28/2018 The Computer Source Code Hypo Lotus creates computer source code for Lotus Borland copies it, byte-by-byte Copyright infringement? November 28, 2018

Answer Yes We will return to this later in the quarter 11/28/2018 Answer Yes We will return to this later in the quarter November 28, 2018

The Menu/Commands and Expression 11/28/2018 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? November 28, 2018

Expression Isn’t the Point Here 11/28/2018 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 November 28, 2018

Expression Isn’t the Point Here 11/28/2018 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)? November 28, 2018

Property Rights Alternatives 11/28/2018 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 November 28, 2018

Property Rights Alternatives 11/28/2018 Property Rights Alternatives Weak-Form Property Rights Create duty of predisclosure of changes Limit right to change interface? November 28, 2018