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/r-picker@uchicago.edu
Copyright © 2005-10 Randal C. Picker. All Rights Reserved.
Baker v. Selden

Core Facts
1859:
Selden copyrights book “Selden’s
Condensed Ledger, or Bookkeeping
Simplified”

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Book is description of approach to
bookkeeping and blank forms with lines and
headings designed to illustrate the
implementation of the system
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Baker v. Selden
Baker
creates forms with “a different
arrangement of the columns” and “different
headings”
Selden claims a copyright violation
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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?
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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
 If
patented, can block other uses of the system
 Shorter period of protection (20 years vs. life of the
author + 70 years (302(a)))
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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?
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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.”
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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?
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Answer

No
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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

Copyright infringement?
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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)
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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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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.”
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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?
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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; not
given for the purpose of publication in other
works explanatory of the art, but for the
purpose of practical application.”
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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)
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In Baker v. Selden

The Idea
Selden’s

The Expression
Selden’s

system of bookkeeping
book describing the system
And the Forms?
Court
seems to assume small number of
possible expressions in creating forms and
therefore not copyrightable
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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. ”
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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
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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
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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?
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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?
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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
Adopt predecessor’s platform (“embrace”)
and extend it by adding new features

Minimizes switching
costs
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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
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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?
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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?
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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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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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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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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.”
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The Computer Source Code

Hypo
Lotus
creates computer source code for
Lotus
Borland copies it, byte-by-byte

Copyright infringement?
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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)
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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?
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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
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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)?
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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
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Property Rights
Alternatives

Weak-Form Property Rights
Create
duty of predisclosure of changes
Limit right to change interface?
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Paper on Lotus and More

Copyright and the DMCA: Market Locks
and Technological Contracts
http://papers.ssrn.com/sol3/papers.cfm?abs
tract_id=690901
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