1. Class 3 Copyright, Autumn, 2016 Ideas v. Expression
11/28/2018
Class 3 Copyright, Autumn, 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

2. Email from Joyce Li Monkey Selfies
November 28, 2018

3. Baker v. Selden Core Facts
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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

4. 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

5. 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

6. Patenting the System Issues
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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

7. Patenting the System If patented, can block other uses of the system
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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

8. 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

9. 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

10. Not Copying the Book Hypo Copyright infringement?
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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. 11/28/2018
Answer No
November 28, 2018

12. Copying the Forms Book Hypo
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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?
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13. Answer The Court concludes:
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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

14. Why? Actual Facts Baker created forms different from Selden’s
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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

15. Forms As Necessary Incidents to System
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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

16. Forms As Necessary Incidents to System
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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

17. Idea/Expression Dichotomy
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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

18. In Baker v. Selden The Idea The Expression And the Forms?
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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

19. 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

20. Lotus v. Borland Core Facts
11/28/2018
Lotus v. Borland
Core Facts
Lotus 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

21. 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

22. 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

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

24. Managing Switching Costs: Lotus v. Borland
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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

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

26. 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

27. Lock In and Entry Barriers
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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

28. Decentralized Investments and Lock-In
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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

29. 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.
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30. Locating the Realm of Copyright Protection
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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
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31. The Spreadsheet/The Screen Displays
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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
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32. The Spreadsheet/The Screen Displays
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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

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

34. Answer Yes We will return to this later in the quarter
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Answer
Yes
We will return to this later in the quarter
November 28, 2018

35. The Menu/Commands and Expression
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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

36. 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

37. 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

38. Property Rights Alternatives
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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

39. 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