Re: About Computer Software and Patents

> On Thu, 24 Feb 1994, Trotter Hardy wrote:
> >
> > If a court wants to declare that a copyrightable interface has
> > become so useful to the public that it can no longer receive
> > copyright protection, then the court should ask the executive
> > branch to initiate condemnation proceedings, set a fair market
> > value on the interface (which presumably will be quite high,
> > since everyone is asserting that they must have that interface
> > and no other), and pay that price to the originator. That's the
> > Constitutional way of turning private property over to public
> > use.

Phil Albert replies:
>
> Obviously, you've never been a programmer. Imagine a bunch of programmers

I was a programmer for about 6 years before I went to law school.

> What is really going on is that Borland is not copying Lotus, but is
> making a "reverse impression copy" of user expectations. Think of it like

Borland admitted copying from Lotus. It is not necessary to characterize the situation as a "reverse impression copy of user expectations," nor is it helpful, since such a characterization has no legal significance. "Copying" does.

> There is nothing special about Lotus' interface. It's not that interfaces
> aren't innovative (e.g., the PARC/Macintosh interface), it's just that the
> particular arrangement common between the Lotus and Borland menus is not
> the product of much ergonomic thought. Now, Lotus' HAL interface (which
> they bought from GNP and then promptly killed) is a totally different
> story.

Agreed.

> The real question, is not whether condemnation proceedings are proper, but
> whether Lotus owns the exclusive rights to market to users trained on
> their product. If they have a right to exclude others from these users,
> then you are completely correct that the elimination of this exclusion is
> a taking.

Of course Lotus does not own the exclusive rights to market to anybody. The issue is whether they have exclusive rights to their interface. I have already said I think the argument for rights in the menu structure is tenuous; it is less so for the screen appearance. But marketing rights are not at issue.

        --Trotter Hardy

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