In today’s highly digitized world, tens of thousands of new mobile apps, websites, and softwares are released daily. While we enjoy an almost incomprehensible amount of creative and innovative material in the digital space, this proliferation perpetuates questions of the appropriate scope of intellectual property. Regulators and legal minds alike continue to debate how copyright law should apply to computer programs.
“Lotus v. Borland: A Case Study in Software Copyright,” a Harvard Law School case study by Ben Sobel under supervision of Jonathan Zittrain, discusses this contemporary issue of copyright law and digital property by a deep dive into one of the legal cases that started it all. Lotus v. Borland explored uncharted territory, as it was amongst the first cases that raised questions specifically on copyright law as it pertained to the protection of computer programs. The ultimate decision reached in the Lotus v. Borland case colored how the U.S. software industry evolved and continues to affect it. By holding that the menu structure and command names of a computer program were not copyrightable, the case may have contributed to the development of the millions of applications available today.
In 1990 the personal computing revolution was underway, and early movers in this largely unregulated space stood to gain millions from creating programs that the average user could master. Lotus Software, a software company later acquired by IBM, filed a copyright infringement lawsuit against competitor Borland International, alleging that Borland’s spreadsheet program used an identical set of menu commands as Lotus’s own spreadsheet program, which held market dominance at the time. The District Court under Judge Robert Keeton initially issued a judgment holding that Borland did, indeed, infringe Lotus’s copyright, and Borland eliminated the contentious user interface from its software.
Eventually, faced with an appeal by Borland and the extension of the case to the First Circuit under the United States Court of Appeals, the case moved onto the First Circuit. Here, the First Circuit expressed that Lotus’s menus were not copyrightable because they were essential to the method of operation. The case eventually reached the Supreme Court while media coverage and industry followers eagerly awaited the outcome. The government never took an official position on the case because the different parts remained so divided; the Clinton White House supported Borland while the Copyright Office and the Department of Commerce favored the Lotus side. This case ascertains the different departments’ positions by looking at documents released as part of Elena Kagan’s Supreme Court confirmation hearings, and thereby gives behind-the-scenes insights into the legal process.
Eventually, the Supreme Court decision ended in a 4-4 tie—which means that it does not create a SCOTUS-level precedent—and the First Circuit’s previous judgement against Lotus stood. Today, almost twenty years later, software copyright remains clouded. Last year, Oracle v. Google, in which Oracle sued Google over alleged copyright violations of its user interface, was denied review by the Supreme Court.
Studying this case offers readers a practical immersion in legal doctrine, litigation procedure and tactics, policymaking, and business strategy. Students study court and government documents that give insight into the rarely seen debates that shape the official positions on pending litigation. By providing important legal and historical context, this case study challenges students to examine Lotus v. Borland’s influence on the contemporary software ecosystem.
This case study is based on the syllabus and pedagogy of “Anatomy of a Copyright Case,” a course taught at HLS in Spring 2015 by Henry Gutman, who argued Lotus’s side before the Supreme Court.