cyckV4

Methods of Operation: Introduction to Computer Software 357
Lotus Development Corp. v. Borland Intern’l, Inc.
516 U.S. 233 (1996)
On writ of certiorari to the United States Court of Appeals for the First Circuit.
PER CURIAM.
The judgment of the United States Court of Appeals for the First Circuit is affirmed
by an equally divided Court.
(Justice STEVENS took no part in the consideration or decision of this case.)
Notes
• • • • • • • • • •
Lotus is included in the book not merely because it was a pathbreaking case on
copyrightable subject matter, affirmed by an equally divided Supreme Court, but because
of three additional factors.
• First, Lotus is a nice example of the courts taking a series of doctrines developed
in other contexts and applying them to a new technology.
• Second, the majority and concurrence demonstrate two different judicial
methodologies for that process of technological and statutory “translation.” The
majority looks at the existing limitations within the statutory structure, rejects a
straightforward application of Baker v. Selden (do you agree?) and fits the menu
prompts and command hierarchy into the language of “methods of operation”—
explicitly declared to be non-copyrightable under § 102. Judge Boudin concurs
but says “[t]he importance of this case, and a slightly different emphasis in my
view of the underlying problem, prompt me to add a few words to the majority’s
tightly focused discussion.” (What does “tightly focused” mean here in judicial
language?) He rejects the idea that copyright doctrine should be applied literally
to the new technology. “Of course, one could still read the statute as a
congressional command that the familiar doctrines of copyright law be taken and
applied to computer programs, in cookie cutter fashion, as if the programs were
novels or play scripts. Some of the cases involving computer programs embody
this approach. It seems to be mistaken on two different grounds: the tradition of
copyright law, and the likely intent of Congress.” He concludes “the choices are
important ones of policy, not linguistics, and they should be made with the
underlying considerations in view.” This question of judicial method—how should
judges apply intellectual property law?—is a central theme of the course.
• Finally, Lotus is an excellent introduction to the particular features of “network
goods” or network effects, and the implication these have for intellectual
property. If you read Fifty Shades of Grey it does not affect my decision on
whether to read Thomas Pynchon or Neil Stephenson. But if you (and everyone
else) uses Microsoft Word, I may need to use that program even if I believe Open
Office to be better.
Questions:
1.) Compare Boudin’s approach with the majority’s. Which is more appropriate? More
faithful to the judicial role? In your answer which, if any, of the following factors are