From: (NB / WAS)
Subject: ****High Court Punts On Lotus Vs. Borland 01/17/96
Keywords: Bureau-WAS, Legal
Organization: Copyright 1996 by Newsbytes News Network
Lines: 58
Date: Wed, 17 Jan 1996 12:40:30 PST
Slugword: 960117.9
Threadword: 960117_9
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High Court Punts On Lotus Vs. Borland 01/17/96

WASHINGTON, D.C., U.S.A., 1996 JAN 17 (NB) -- A Supreme Court case expected to clarify the role of copyright protection for software fizzled out yesterday as the court split 4-4 on the case and let an appeals court decision stand.

The court was unable to decide the highly publicized case of Lotus vs. Borland, which turned over whether the menu and command structure of the 1-2-3 spreadsheet program could be copyrighted. Lotus sued Borland in 1990, seeking $100 million in damages because Borland's Quattro spreadsheet mimicked the 1-2-3 commands.

The five-year legal battle had arrived at the high court accompanied by many "friend of the court" briefs from software publishers and computer companies.

A US Circuit Court of Appeals in Boston had ruled that the menu structure Lotus developed for 1-2-3 was a "method of operation" that could not be copyrighted. One of the judges, Michael Boudin, compared the case to the conventional QWERTY keyboard. If it were possible to copyright this arrangement of keys, he said, typists "would be the captive of anyone who had a monopoly on the production of such a keyboard."

Lotus appealed and the Supreme Court agreed last September to hear the case. The court heard oral argument on the case January 8 and was expected to issue a final opinion this summer.

But, with Justice John Paul Stevens recusing himself for unstated reasons, the court was left facing a 4-4 tie, which automatically affirmed the lower court order in favor of Borland. The justices on each side of the issue were not identified, which is standard practice for the court.

Borland's lawyer, Gary Reback, told the Washington Post that following the oral argument, he sensed that Chief Justice William Rehnquist and Justice Sandra Day O'Connor were hostile to his case, while Justices Stephen Bryer and David Souter were more favorably disposed.

In a written statement, Lotus, now owned by IBM, said, "We are clearly disappointed by the US Supreme Court's 4-4 affirmation of the US First Circuit Court of Appeals ruling in Lotus vs. Borland. We filed the suit because we believed our position was consistent with Federal copyright law and prior case law. It is disappointing that the Supreme Court did not provide more guidance to the industry on these critical copyright issues."

The action by the court means that the issue has been decided in only one federal district, the first circuit. As a result, copyright law experts expect to see another case before the court someday. "The question has to be resolved," Washington copyright lawyer David Masselli told Newsbytes.

(Kennedy Maize/19960117/Press Contact: Bryan Simmons, Lotus, 617-693-1697)