Is the Lotus 1-2-3 Menu Command Hierarchy

The Lotus 1-2-3 (a computer spreadsheet program) litigation continues to grow exponentially. In the coming months it will wind its way up the steps of the Supreme Court in Washington and present itself to yet another court, this time the highest in the United States. It is rare for copyright issues to be granted certiorari and thus what the Supreme Court has to say on the issue will have far reaching effects for American intellectual property law.

Lurking behind this litigation lies the interminable idea-expression dichotomy. The indeterminacy predicted in this area from the copyright master Learned Hand, lingers on. In two separate actions (Lotus Development Corporation v Paperback Software International and Lotus Development Corporation v Borland International Inc) Judge Robert Keeton of the United States District Court for the District of Massachusetts has held the Lotus 1-2-3 user interface to be a copyrightable expression encompassed by s 102 (a) of the Copyright Act 1976 (17 U.S.C.). The United States Court of Appeals for the First Circuit rejected Keeton J's approach in March o

Keeton J added two further considerations to the legal test of copyrightability besides the abstraction test:

Ibid. at 48. See also Bleistein v Donaldson Lithographing Co. 188 US 239, 251 (1903) per Holmes J.

However no matter where the boundary line between copyrightable and noncopyrightable elements of computer programs was to be drawn, for Keeton J. it was clearly the role of the courts to draw the ultimate line. Congress, he explianed had "mandated that courts use an evaluative standard in determining this boundary line that is, a standard that distinguishes idea from expression and requires that a court, in applying this distinction, be sensitive to the object and policy of copyright law as manifested by Congress."

As Computer Associates International, Inc. v. Altai, Inc. had been decided since Paperback Keeton J was forced to square the test he had used in Paperback with that pronounced in Altai. He explained the three stage test of Altai saying the first two steps, "abstraction" and "filtration," were designed to define the idea of the program and to eliminate it (as well as other noncopyrightable subject matter) from further consideration. These first two steps of the Altai test he suggested concerned what other courts and commentators had called "copyrightability", only the third step, "comparison," addressed similarities between the copyrighted work and the allegedly infringing work. To what extent did the Altai "abstractionfiltrationcomparison" test differ, either substantively or in methodology, from the combination of

In determining copyrightability Keeton J explained he would apply the three pronged legal test he had developed in Paperback which he formulated in the following way:

In any event ... Congress could have constitutionally drawn defendants' proposed brightline providing protection only to computer program code and not to nonliteral elements of computer programs but Congress has not done so. Without a congressional mandate, it would be an abuse of authority for this court, in deciding this case, to use a brightline test of copyrightability that makes the literalnonliteral distinction decisive. Instead, the court must adjudicate within the area of protection mandated by Congress.

Some common words found in the essay are:
Copyright Act, Supreme Court, Baker Selden, Keeton J's, Copyrightable Keeton, Judicial Reasoning, Nation Enterprises, Microsoft's Excel, Altai Inc, Law Boudin, menu command, menu command hierarchy, command hierarchy, computer programs, method operation, lotus 123, lotus menu, expression idea, lotus menu command, lotus 1-2-3, electronic spreadsheet, supreme court, lotus development corporation, lotus 1-2-3 user, 1-2-3 user interface,
Approximate Word count = 8841
Approximate Pages = 35 (250 words per page double spaced)