Michelle M. Hsu
November 23, 1994
6.095 Paper #2

A Comparison of the Apple vs. Hewlett-Packard/Microsoft and Lotus vs. Borland and Paperback Software Cases

Apple vs. Hewlett-Packard and Microsoft

On March 17, 1988, Apple filed a suit against Hewlett-Packard and Microsoft, claiming seven counts of copyright infringement by their Windows 2.03 and NewWave programs, respectively.

In November 1985, Apple had granted Microsoft a non-exclusive license for the audiovisual displays in Windows 1.0; however, Windows greatly changed their total appearance from one release to the next, and they were not licensed to use all of those those changes they had implemented. To help the court determine which parts of the displays of Windows and NewWave were infringing upon Apple, they submitted a list of similarities. The original list contained 189 similarities between the Macintosh and Windows 2.03 and 147 for NewWave. A second supplemental list of similarities was filed by Apple in April 1991, claiming additional copyright infringements by Windows 3.0 and NewWave 3.0.

On April 14, 1992, the court ruled that the Windows and NewWave programs did not in fact infringe upon Apple's copyright, except for the trash can and file-folder icons used by NewWave. One of the main problems with Apple's defense is that they relied too heavily upon the "look and feel" phrase, which is not an actual legal term. Instead of responding to the defendants' detailed arguments, Apple said "we do not attempt here to chase every rabbit loosed by defendants' continuing focus on irrelevant detail" [4]. After they lost the initial court hearing, though, Apple realized that this catch phrase was not going to carry them through the hearing and for the first time they addressed the issues brought up by the defendants.

An interesting statement made during the hearings is that Apple claims that they wouldn't have complained if only parts of things were taken, such as just the overlapping window or just the trash can, but when all of these were put together, then a situation was created that "cries out for protection under the copyright law." [2] The judge did not agree with this argument, because under these circumstances, the only person who may determine when there has been a copyright infringement is Apple, and a competitor of Apple cannot. However, this is not the way the law should work; the law should define the property rights in a way that is reasonably predictable by all people in the field. During the proceedings, the court was attempting to determine a standard by which each of the elements on the list could be judged to decide which belongs to Apple and which does not. A strict "blanket" standard was not actually determined; it was only concluded that in this case the elements cited on the list of similarities were considered "unprotectible."

Lotus Cases

Lotus vs. Paperback Software

In January 1987, Lotus Development Corporation filed suit against Paperback Software for alleged infringement of software copyright on Lotus' 1-2-3 program by its VP-Planner spreadsheet program.

In June 1990, federal court Judge Keeton ruled in favor of Lotus. A major reason cited is that the commercial success of other spreadsheet programs with different user interfaces than 1-2-3, such as Microsoft's Excel, demonstrates that it is not necessary to have exactly the same menu structure as 1-2-3. Keeton wrote in his opinion, "Even if VP-Planner otherwise would have been a commercial failure, and even if no other technical ways of achieving macro and menu compatibility existed, the desire to achieve 'compatibility' or 'standardization' cannot override the rights of authors to a limited monopoly in the expression embodied in their intellectual work." [5]

Paperback had no grounds to deny that they did not attempt to implement a clone of Lotus 1-2-3, as they publicly advertised their VP-Planner program as a "...workalike for 1-2-3.....designed to work like Lotus 1-2-3, keystroke for keystroke.....everything 1-2-3 does, VP-Planner does..." [5]. However, they based their argument on the claims that the Lotus interface is not protectible by copyright law and that it is in the interest of the computer user community to achieve some sort of standardization, which supposedly should override Lotus' private interest in protecting its command structure. While Judge Keeton concluded that the Lotus interface was indeed protectible by copyright law, nowhere in his opinion did he discuss the possibility of interest by the users in achieving standardization.

It is the law that the expression of an idea is copyrightable, but the idea itself is not. Therefore, in this case Judge Keeton had to decide how to distinguish between the idea and its expression. Both parties agreed that literal manifestations of a computer program, such as the source code, are copyrightable if they are original. However, the defendants maintained that Lotus has no right to the copyrightability of any nonliteral elements of its computer programs. Lotus, on the other hand, argued that copyright protection extends to all the elements of a computer program whether literal or nonliteral, including any original expressions in the program's user interface. This has been termed the "look and feel" of a program.

In musical, dramatic, motion picture works, and works of literature, nonliteral elements that are copyrightable have sometimes been described as the "total concept and feel" of a work. In this case, however, Judge Keeton said that he did not find the "look and feel" concept, standing alone, to be "significantly helpful in distinguishing between the nonliteral elements of a computer program that are copyrightable and those that are not." [5].

Lotus vs. Borland International

After winning the suit against Paperback, Lotus promptly filed suit against Borland International alleging copyright infringement by their Quattro spreadsheet program.

The difference with this suit, however, was that the Quattro program had no resemblance to 1-2-3 as far as the program's code or visual displays were concerned. In the Paperback case, the judge ruled that the direct copying of 1-2-3's visual displays infringed Lotus' copyright; however, in this case, the judge was of the opinion that Borland "copied less than the whole 1-2-3 user interface." Lotus' claim was that Borland copied certain expressive elements of the 1-2-3 interface, including "menu commands," "menu structure," "long prompts," and "keystroke sequences." [7].

Despite the major differences between the two programs, the judge ruled in favor of Lotus, saying that "beyond genuine dispute, Borland copied parts of the 1-2-3 user interface." [7]. This decision caused a major rift in the computer community. The judge's ruling meant that functional aspects of a computer program, not just the visual displays or code, could be protected by copyright. This was likened to allowing the English language to be copyrighted, as opposed to copyrighting an expression using the English language, such as a poem or novel.

This is perhaps an incorrect legal decision, as the Copyright Act expressly states that copyright protection does not extend to any "idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is embodied." Evidently, the court must have ignored this section of the act, as during the trial it used the phrases "procedure" or "operation" at least fourteen times as it described the Lotus macro language. [8].

This decision also seems to demonstrates that the District Court does not agree with the notion that standardization and compatibility is a worthwhile or important policy goal in the computer industry, though many members of the computer community disagree. Software compatibility, interoperability, and hardware portability are considered extremely important, as well as the ability of programmers to write software programs in a common language that may be understood by other programmers worldwide and can be used on many types of computer hardware [8].

Comparison of the Apple and Lotus Cases


It seems that there would be many more differences between the two cases than similarities, since in one case the plaintiff won and in the other case the defendants won. There are substantial differences in the outcome, however, the similarities exist in what the plaintiffs were accusing the defendants of having done.

All of the cases involved an attempt to gain copyright protection for non-literal elements of computer programs. The ultimate question that needed to be answered was "Is look and feel protectible?" In all the cases there were constant references to numerous similarities between programs, but "similar" is not what copyright infringement is about.

Apple was accusing Microsoft and Hewlett-Packard of copying the visual aspects of their graphical user interface, which they maintained was their own exclusive innovation. The Macintosh was a tremendously successful product because of this innovation, and Apple desired to keep competitors from using it. The product Lotus desired to protect was not quite on the same scale, as it was just their personal expression of a spreadsheet program, but their product was also very successful and they desired to keep competitors from using their ideas to profit.


A major difference between the two cases is that there are many more differences between the Macintosh/Windows-NewWave interfaces than the Lotus 1-2-3/VP-Planner interfaces. There are more similarities between the Lotus/Borland case and the Apple/Microsoft-HP case, because what was being disputed was the "idea," yet the outcomes were still completely different. This all presents a totally confusing scenario for those in the industry who are worried about copyright infringement.

Paperback software copied Lotus' interface outright, (clearly evidenced by their public advertising as mentioned previously) and this made a much stronger case for Lotus. A program that is visually and functionally the exact same is much easier to prove as infringing. However, though Judge Keeton wrote a 110 page opinion on the case, it is still difficult to tell whether Paperback lost only because they copied "the whole" of Lotus' menu structure. He makes no indication of whether infringement would occur if everything about the two programs was the same except that the menu was structured differently, though he suggests that it might not be infringement at various points in his opinion [6].

However, Borland did not copy either the code or the visual displays of Lotus, yet they still were found guilty of copyright infringement. This decision from Judge Keeton, coming after the Paperback decision, might imply that Paperback did not lose just because they copied the entire menu structure.

One of the reasons Paperback lost is because they were not selling an improvement of the Lotus' spreadsheet, they were selling "copies of Lotus' expression." Judge Keeton quoted from Sheldon in his opinion, "no plagiarist can excuse the wrong by showing how much of his work he did not pirate," and then stated, "the defendant's proof that VP-planner has many features that are different from Lotus 1-2-3 is off point. The more relevant question is: does it have significant features that are substantially similar? I conclude, there is no genuine dispute of material fact on this question. The answer to this question must be yes." [5].

Now, this statement seems to indicate why Borland lost their case, because even though Quattro did not have the same visual displays as Lotus, the features of the two programs are definitely "substantially similar." On the other hand, if this argument comprises a major basis for the ruling, it seems somehow contradictory that Apple would lose their case.

The Paperback case was decided before the Apple case, and therefore could have been cited as a precedent favoring Apple. It is visually obvious that the Microsoft and Hewlett-Packard interfaces are practically copies of the Macintosh user interface. (A revealing similarity is that Microsoft has a "grow box" appearing in Windows 3.0, yet it is nonfunctional. The Macintosh also has a "grow box," but theirs is functional. This little detail has strong implications of guilt for copying by Microsoft.) Yet if Windows and NewWave have all these similar features (189 and 147 documented, respectively), then why was it ruled that they did not infringe upon Apple, yet Paperback and Borland infringed upon Lotus?

Another argument presented by Apple was that it was too early for standardization and acceptance of current approaches. It may seem that their idea is the only effective solution right now, but given time, other companies may come up with many good alternatives. Paperback also attempted to use this standardization argument, but because there exist other successful spreadsheets that do not have the same structure as Lotus, this argument was not accepted (indirectly so, however, because the judge did not specifically address this in his opinion). This ruling from the Paperback case, plus the "real-world" example of 1-2-3 vs. Excel, seems to support Apple's notion that other companies should be able to come up with different approaches for a user-friendly operating system.

It is possible that Apple lost because they were not well-represented in court; the judge's comments indicate that he was not too pleased with their arguments. Instead of making good arguments and countering whatever motions the defendants raised, they assumed they would win merely on the strength of "look and feel." They were also not able to separate the "art" from "functionality" argument effectively. Since Lotus was even able to win the suit against Borland, whose program was not nearly as similar as Windows and NewWave are to the Macintosh, perhaps the decision will be overturned during the appeal process.

Basically, what it comes down to is that in the Lotus cases it was decided that "look and feel" is protectible under copyright law, but in the Apple case, "look and feel" is not protectible. Considering the similarities of the cases, these seem to be contradictory rulings. Hopefully, as more cases are heard and decided in the future, a standard will be reached.


  1. Apple's second supplemental list of similarities between Windows and NewWave (filed April 1991).
  2. Oral arguments in court before Judge Walker, April 14, 1992, and ruling
  3. Summary of April 14 ruling
  4. Judge Walker's August 7 ruling
  5. Judge Keeton's ruling in Lotus Development Corporation v. Paperback Software International and Stephenson Software, Ltd. US District Court, District of Massachusetts, June 28, 1990.
  6. Pamela Samuelson, "How to interpret the Lotus decision and how not to," Communications of the ACM, November 1990.
  7. Judge Keeton's ruling in Lotus Development Corporation v. Borland International, US District Court, District of Massachusetts, July 31, 1992.
  8. Two amicus curiae briefs in the (ongoing) appeal of the Lotus v. Borland decision, filed in the US Court of Appeals for the First Circuit, one on behalf of a group of computer science professors, and one on behalf of a group of copyright law professors.