No. 94-2003 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1995 Lotus Development Corporation, Petitioner, v. Borland International, Inc., Respondent. On Writ of Certiorari to the United States Court of Appeals for the First Circuit MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF COMPUTER SCIENTISTS IN SUPPORT OF RESPONDENT Ron Kilgard (Counsel of Record) Karl M. Tilleman Dalton, Gotto, Samson & Kilgard, P.L.C. Suite 900 3101 North Central Phoenix, AZ 85012 Phone: (602) 248-0088 Attorneys for Amici December 1995No. 94-2003 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1995 Lotus Development Corporation, Petitioner, v. Borland International, Inc., Respondent. On Writ of Certiorari to the United States Court of Appeals for the First Circuit MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OF COMPUTER SCIENTISTS The computer scientists identified in Appendix A to the attached brief respectfully move, pursuant to Supreme Court Rule 37.3(b), for leave to file the attached amicus curiae brief in support of Respondent Borland International, Inc. ("Borland"). The consent of the attorneys for Borland has been obtained. The consent of the attorneys for petitioner was requested but refused. In support of our motion, we respectfully represent the following: 1. As computer scientists who have invented or contributed to the authorship of numerous computer programs and languages, as well as many computer-related works, we appreciate the value of copyright protection as a means of encouraging as well as stifling innovation. 2. We have become increasingly concerned about the controversy and uncertainty in the computer industry regarding the legal rules for software development, and wish to communicate our views on the important issues in this case, which may have a significant impact on the computer software industry. 3. As stated in the accompanying brief, copyrightprotection for computer interfaces and languages not only is legally unfounded, but also unwise for a variety of policy and industry- related reasons. Human/computer interfaces are distinct from the text of computer programs; they are the boundaries shared by the computer system and the human user. Communication across these boundaries is necessary for operation of a computer system. Computer languages are as distinct from the text of computer programs as the English language is from the text of a novel or a play. 4. We believe that granting protection to computer interfaces and languages will discourage innovation in the computer industry, which depends upon the ability of people and computers to communicate freely with each other, using many different computers and computer programs. As a result, software compatibility and interoperability are extremely important. Once a computer interface is developed, it has the potential to become an industry standard, becoming functionally embedded not just in the original work, but also in subsequent works. Allowing the creator or the "first comer" to use the copyright laws to restrict use of the standard would give the creator the ability to lock up the technology and the marketplace for 75 years, even if the interface and technology were unpatentable, resulting in enormous barriers to entry and discouragement of the development of creative works in the industry. 5. The copyrightability of computer interfaces is of paramount importance to the computer industry. As a group of scientists who have invented or contributed to the authorship of numerous computer programs and languages and who will be profoundly affected by the decision of the Court, we believe we are in a unique position to address the dangers of granting copyright protection to computer interfaces more completely than it will be addressed by the parties. For the foregoing reasons, we respectfully request the Court grant our motion for leave to file the accompanying amicus curiae brief in support of Borland. Respectfully submitted, Ron Kilgard (Counsel of Record) Karl M. TillemanDalton, Gotto, Samson & Kilgard, P.L.C. Suite 900 3101 North Central Phoenix, AZ 85012 Phone: (602) 248-0088 Attorneys for Amici Listed in Appendix A TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . ii I. INTRODUCTION AND INTEREST OF AMICI. .1 II. SUMMARY OF THE ARGUMENT. . . . . . .3 III. ARGUMENT. . . . . . . . . . . . . .4 A. General Discussion of Computers4 B. Human/Computer Interfaces Should Not Be Copyrightable . . . . . . . . .6 1. Overview of Human/Computer Interfaces6 2. Reasons Why Copyright Protection Is Not Appropriate. . . . . .8 C. Computer Languages Should Not Be Copyrightable . . . . . . . . 10 1. Overview of Computer Languages10 2. The Lotus Macro Language 12 3. Reasons Why Copyright Protection Is Not Appropriate. . . . . 14 D. The Menu Command Words Need Not Be Spelled Out in the Code . . . 17 IV. CONCLUSION . . . . . . . . . . . . 18 TABLE OF AUTHORITIES Page(s) CASES Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 [103 L. Ed. 2d 118, 109 S.Ct. 971] (1989) 10Computer Associates Intern., Inc. v. Altai, Inc., 775 F.Supp. 544 (E.D.N.Y. 1991) . . . .4,5 Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) . . . . . . 10 Fogerty v. Fantasy, Inc., 510 U.S. __ [127 L.Ed.2d 455, 114 S.Ct. 1023] (1994)9 Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) . .6,7,8,12,16 Lotus Development Corp. v. Borland International, Inc., 778 F.Supp. 78 (D. Mass. 1992) . . .13,17 Lotus Development Corp. v. Borland International, Inc., 799 F.Supp. 203 (D. Mass. 1992) . . .13,15 Lotus Development Corp. v. Borland International, Inc., 831 F.Supp. 202 (D. Mass. 1993) . . . . 13 Lotus Development Corp. v. Borland International, Inc., 831 F.Supp. 223 (D. Mass. 1993) . 13,14,15 Lotus Development Corp. v. Paperback Software International, 740 F.Supp. 37 (D. Mass. 1990) . .5,13,15 STATUTES 17 U.S.C. sect. 101 . . . . . . .5,8,12,13 15,16 17 U.S.C. sect.106(2) . . . . . . . . . 16 MISCELLANEOUS Compendium II of Copyright Office Practices, the Library of Congress, sect.326 at 300-32 (1984) . . 11 Paul A. David, "CLIO and the Economics of QWERTY," 75 Am. Econ. Rev. 332 (1985) . . . . . .7 E. Lowry, Copyright Protection for Computer Languages: Creative Incentive or Technological Threat?, 39 Emory L.J. 1293 (1990) . . . . . .11,15F. Friedman, E. Koffman, Problem