Hank Gutman HLS ’75, Lecturer on Law at HLS, was counsel for the plaintiff in Lotus Development Corporation v. Borland International, Inc. (516 U.S. 233), a landmark case in software copyright. Lotus sued Borland for copyright infringement of Lotus 1-2-3, a popular spreadsheet application in the years before Microsoft Excel. At issue was the menu in Borland’s Quattro Pro spreadsheet program, modeled after Lotus 1-2-3: the text and hierarchy were the same, but the code was different. The court initially sided with Lotus, but appeals favored Borland. When the case went before the Supreme Court, the decision was a 4-4 tie.
Gutman’s spring reading group, “Anatomy of a Copyright Case,” traced Lotus v. Borland from problem to complaint to the Supreme Court. Over six two-hour sessions, students pored over case files, pleadings, and briefs to understand what happened and why, and to craft winning strategies and arguments. Gutman reflected on the inaugural semester of the reading group:
EM: How was the case presented and discussed?
HG: Most law school courses are taught from edited excerpts of appellate decisions. They start with the conclusion of the case, when the court has provided an answer. We began at the opposite end of the process, with the initial problem, the way a lawyer in practice would. You look at the facts and the statutes available and try to decide what should be done.
I thought this would be a good case study because the suit went all the way to the Supreme Court and ended in a tie vote, so there was no ultimate decision. The students could decide for themselves. The case was an attractive teaching tool because it covered a wide array of substantive copyright questions without easy answers, allowing students to think creatively. It also contained a wide array of procedural issues relating to trial and appellate practice and litigation strategy. We tried to address both.
Each class, I took up a different phase in the ten-year life of this case . A lot of time was spent asking students to put themselves in the lawyer’s shoes. What would you have done and why? What if you were counsel for the other side?
This case, at the time, was probably the most highly publicized copyright case in the country. But it isn’t just ancient history. There is an important dispute today between Oracle and Google over Google using Java in its Android platform. As we speak, a certiorari petition is pending before the Supreme Court in which Google told the Court that this is its chance finally to decide the issues it considered in Lotus v. Borland. We spent our last class talking about the current case and how our analysis of Lotus might apply to its facts.
In addition to the case materials we assigned, we included a fair amount of supplemental material. It was quite a lot to read. Other syllabi might assign particular pages of a case, but when students leave law school and begin to practice, no one tells them what pages to read. They need to decide for themselves which are the most important parts of the materials, and I’m pleased to say the students did.
EM: Did your personal experience in this trial shape your teaching or class discussion? What advice do you have for instructors without this personal experience?
HG: I had ready access to some of the materials that would have been hard for others to dig up. And in some instances, after we had discussed the strategic and tactical choices confronting counsel, I could shed some light on the actual decision making processes of the parties. But personally, it was very interesting for me to relive that litigation from the perspective of bright young law students who took a fresh look at it all. The students had very creative ideas and insights—it was terrific fun. They ended up teaching me material that I thought I already knew really well. The students arrived with a deep interest in copyright and its application to technology; even in a one-credit ungraded course, they dug into the material.
For instructors building a course around a single case, the main goal is to read and become intimately familiar with the materials, which is easier if someone’s collected them for you. I recommend that instructors remain open to the ideas and input of the students. If case teaching works the way it should, students are doing the teaching themselves.
EM: With such a well-known case, how did you address the fact that students might rely on retrospection or outside knowledge?
HG: Since there was no written decision from the Supreme Court, the students couldn’t look up a definitive answer. But in putting together readings for each week, my teaching team did consider how we wanted the story to unfold. We had an eye on what we wanted the class discussion to entail each week, and tried to allocate the readings so that the students would have enough material to discuss how they would have addressed that week’s issues, without yet having read, for example, the District Court’s opinion resolving the questions. But in our class discussions, the students did not show the slightest hesitation in disagreeing with either the courts or counsel.
EM: How did students react to the case study? Did anything surprise you in the classroom?
HG: I was pleased, but not surprised, that the students showed up each week well prepared, having read the materials, and ready to share their opinions in class. For our last class on Lotus v. Borland, the students were asked to read the Supreme Court briefs, read or listen to the oral arguments and then, in class, to pretend they were the Supreme Court and to decide the case. In the actual case, Lotus got four votes in the Supreme Court; in class, only two students thought Lotus should win. So much for telling the teacher what he wanted to hear! I was delighted, because it demonstrated that the students undertook their own independent analysis of the issues.
EM: What, if anything, would you do differently next time?
HG: I am sure that the second time through I might tweak the materials a bit, perhaps dropping an issue or two and adjusting the emphasis. We did cover a lot of ground in 12 hours. Also, because the class was a reading group, we couldn’t assign written work. If this had been a seminar, we might have asked the students to brief an issue or, for a final assignment, write the missing Supreme Court opinion. There was certainly enough material available to fill a semester-long seminar.
A case study on Lotus v. Borland is forthcoming from HLS Case Studies. Hank Gutman is of counsel at Simpson Thacher & Bartlett, LLP, where he created and until recently chaired the Intellectual Property Practice Group.