The user interface of a software program is the means through which the user
communicates with the program. In its short history, user interface technology
has evolved from the teletypewriter and paper punch card to the prevailing
modern user interface in which a user types commands at a video display terminal
or screen, presses specially-designated function keys, or uses a mechanical
pointer called a mouse to select a command on the screen. Many popular user
interfaces such as Microsoft Windows, OS/2, and the Apple Macintosh Finder
follow the design standards of graphical user interfaces ("GUIs"), which combine
on-screen visual elements with more traditional methods such as typing at a
computer keyboard. User interfaces have become increasingly important in
software development as as the user interface is the primary way a user
interacts with a program.
Considering the importance of user interface in a software program, the issue of
providing legal protection for user interfaces through the law of intellectual
property rights has become critical in the greater discourse on the protection
of software programs. This project examines in the detail the protection
extended to user interfaces through the means of copyright laws.
1. Graphical user interface (GUI) and Menu Command Hierarchy: A Primer:
The term graphical user interface (GUI) is used to describe the user interface
of most modern operating systems. A GUI is a method of interacting with a
computer through a metaphor of direct manipulation of graphical images and
widgets such as windows, menus, radio buttons, check boxes, and icons in
addition to text and employs a pointing device (such as a mouse, trackball, or
touch screen) in addition to a keyboard. The GUI is based on the famous What you
see is what you get (WYSIWYG) principle of modern computing Examples of systems
that support GUIs are Mac OS and Microsoft Windows. The following screenshots
show the graphical user interfaces of these popular operating systems:
An example of graphical user interface in Windows XP
1.1 The Components of GUI
Several industry experts refer to GUIs as WIMPs which stands for Windows, Icons,
Menus, Pointer. Graphical user interfaces feature the following basic
# Pointer: A symbol that appears on the display screen and that you move to
select objects and commands. Usually, the pointer appears as a small angled
arrow. Text -processing applications, however, use an I-beam pointer that is
shaped like a capital I.
# Pointing device: A device, such as a mouse or trackball that enables you to
select objects on the display screen.
# Icons: Small pictures that represent commands, files, or windows. By moving
the pointer to the icon and pressing a mouse button, you can execute a command
or convert the icon into a window. You can also move the icons around the
display screen as if they were real objects on your desk.
# Desktop: The area on the display screen where icons are grouped is often
referred to as the desktop because the icons are intended to represent real
objects on a real desktop.
# Windows: You can divide the screen into different areas. In each window, you
can run a different program or display a different file. You can move windows
around the display screen, and change their shape and size at will.
# Menus: Most graphical user interfaces let you execute commands by selecting a
choice from a menu.
1.2 The Evolution of GUI
The precursor to GUIs was invented by researchers at the Stanford Research
Institute (led by Doug Engelbart) with the development and use of text-based
hyperlinks manipulated with a mouse for the On-Line System.
Researchers at Xerox Corporation's Palo Alto Research Center in the 1970s
further refined the concept of hyperlinks and extended it to graphics and used
GUIs as the primary interface for the Xerox Alto computer. Most modern
general-purpose GUIs are derived from this system. For this reason some people
call this class of interface a PARC User Interface (PUI)
(note that PUI is also
an acronym for perceptual user interface).
The emergence of the Apple Macintosh with its easy to use graphical user
interfaces made GUI’s popular and soon the GUI evolved into a standard component
in software products in the information technology industry as all industry
leaders like Microsoft Atari, Three Rivers Computer Corporation, Digital
Research and Lotus introduced GUI based products (the major exception being IBM
which was slow in adapting GUI as part of its software products).
The ease of use provided by GUIs and the rapid advancements in computing
technology and a rapid decline in the cost of hardware that supports GUIs has
meant that that GUIs base products dominate the software markets across the
globe. Today well over 90% of the world’s users employ one GUI-faced OS or
another and all leading platforms like the Mac OS X, the Windows XP and Linux OS
use graphics bases user interfaces as the primary mean of access.
In the early 90’s Microsoft took the next big leap in GUI revolution by adding
multimedia components like sound , animation and video to the GUI environments.
In the years to come GUI will evolve further to include virtial reality
components (3D technology) and other features that would make GUI’s even more
user-friendly like voice recognition, touch screens, retinal and fingerprint scans
for security and holographic representations. GUI is no longer confined to just
computers but is being adapted to a variety of new age gadgets like mobile
phones, hand-held personal digital assistants (PDA’s), MP3 players, gaming
machines and digital cameras. It is almost axiomatic to state that in the years
to come the role of the GUI environment would be central to computing technology
efforts in improving user experience and increase the spread of the digital
revolution across the globe.
1.3 Menu Command Hierarchy
Menu Command hierarchy is a fundamental component of the user interface. It is
the structure and placement of commands on menus within a program. Essentially
it is the selection or arrangement of commands within a particular software
2. Copyright Protection for Graphical User Interface and Menu Command Hierarchy:
Copyright Protection for Graphical User Interface and Menu Command Hierarchy has
one of the central issues in the discourse on copyright protection for software
programs. Since the time, software programs have been brought within the ambit
of copyright protection; literal infringement of copyrighted programs has been a
relatively straightforward issue that has been easy to deal with. However,
protection of ‘non-literal elements’ of a program like user interfaces has been
much more complicated and controversial. Courts have held that the literal
elements of a computer program may be copyrighted, as can the no literal
elements, but that a copyright in the no literal elements may only be obtained
if they contain original expression. .
The application of ‘non-literal'
copyright protection has been the focus of a heated debate within the software
industry and the academia. Several commentators have argued that reluctance by
courts to grant any kind of intellectual property protection for graphical user
interfaces has been counterproductive to consumers and to the software industry.
Consequently, there have been no real developments since 1984, when the first
graphical software program was introduced and until a consistent and reliable
method of protecting graphical user interfaces is applied by courts (to spark
competition and in turn, to promote technological progress,) computer users, for
the most part, would relegated to the uniformity of GUI designs without major
innovations. Professor Arthur R. Miller who supports protection for the user has
argued that "a computer program's user interface design is extremely
resource-intensive, and a well-composed user interface is frequently the precise
feature that renders a computer program successful . . .. Promoting the unauthorized copying of
interfaces penalizes the creative effort of the original designer, something
that runs directly counter to the core purposes of copyright law because it may
freeze or substantially impede human innovation and technological growth".
Further, from a legal perspective, a user interface is an is an audiovisual work
that may contain a screen display which often contains sufficient expression in
its selection and arrangement, as well as in the individual elements, to warrant
copyright protection. Also, an audiovisual work may be protected as a
compilation if there is a sufficient amount of originality in the selection and
arrangement of the individual elements contained in the work.
On the other hand, several commentators like Gerard J. Lewis, Jr have argued
that at the user interface level, standardization is critical for the widespread
adoption of new computer programs and the operating systems that run them.
Standardization permits the transfer of computer files among users and across
different programs and reduces training costs. Standardization also meets the
needs of users who want to rely on a common user interface without having to
learn and unlearn incompatible programs.
Also, they argue that there is no need to provide further incentives to the
software industry as the rapid developments in the past indicate the lack of
copyright protection does not hinder the progress of the industry and more
importantly interface copyright will actually retard progress, as interface
development is evolutionary in nature. For example the Macintosh interface was
based on ideas tried previously by Xerox and SRI, and before that by the
Stanford Artificial Intelligence Laboratory.
Proof Of Infringement Of User Interfaces
In Computer Associates International, Inc. v. Altai , Inc, the court developed
the test for infringment of non-literal elements of a program by another known
abstraction-filtration-comparison test. In this test. two programs are separated
by their levels of abstraction, any expression which was not protectable by
copyright is fitlered or excluded and then the similarities in the remaining
elements of the two programs are compared for coyright infringement.
The courts have applied the abstraction-filtration-comparison test in several
leading cases like Engineering Dynamics v. Structural Software to determine the
infringement of user interfaces. However in Lotus v. Borland International,
while deciding on the question of copyright infringement of Menu Command
hierarchy, the court refused to apply the abstraction-filtration-comparison test
on the grounds that the question before the court was whether the Menu Command
hierarchy as whole was copyrightable or not (and not dealing with specific
3. Land Mark
Judicial Decisions Regarding the Copyright Protection of User
Interfaces and Menu Command Hierarchy:
3.1 Apple Computer v. Microsoft Corp.
In Apple Computer v. Microsoft , the court found that Microsoft's Windows 2.03
and 3.0 did not infringe Apple's graphical user interface, because a license
given to Microsoft by Apple made it unnecessary for the court to determine
whether Apple's user interface should receive copyright protection.
The Apple case involved a graphical user interface that allowed a user to easily
communicate with Apple's Lisa and Macintosh computers. This graphical user
interface was based on a desktop metaphor including icons, pull-down menus, and
windows for viewing various items at the same time. The user could interact with
these elements using a device called a mouse. Apple filed a claim for copyright
infringement of its graphical user interface when Microsoft released Windows
1.0; an operating system which Apple alleged was substantially similar to
Apple's graphical user interface.
In 1985, shortly after Apple complained, the parties agreed to a license giving
Microsoft the right to use and sublicense derivative works based on Windows 1.0.
The dispute seemed to be settled, as an infringement claim cannot be based on
However, when Microsoft released Windows 2.03 and 3.0, Apple filed a claim
alleging the new versions exceeded the scope of the license and infringed its
copyright on the graphical user interface of its Lisa and Macintosh computers.
The court found Microsoft's visual displays were an authorized use, rather than
an infringement. The court interpreted the term "derivative works" in the
license agreement to mean that Windows 1.0 was a derivative work of Apple's Lisa
and Macintosh graphical user interfaces. Consequently, the derivative works in
the license agreement were the visual displays and not the graphical user
interface itself. Therefore, the license permitted Microsoft to create
derivative works based on the visual displays rather than the Windows 1.0
interface. This allowed Microsoft to create a graphical user interface with
greater similarity to the user interface of the Lisa and Macintosh.
The court further held that since the vast portion of the user interface i.e.
the visual display, was not capable of constituting copied material, therefore
there was no copyright infringement.
Although the court did not find that Microsoft's graphical user interface
infringed Apple's interface, it is submitted that the decision does not stand
for the proposition that graphical user interfaces cannot receive copyright
3.2 Engineering Dynamics v. Structural Software
The court in Engineering Dynamics v. Structural Software held that a computer
program user interface, in the form of input and output formats, was
copyrightable. Engineering Dynamics developed a computer program called SACS IV,
which was designed to solve structural engineering problems. The input formats,
which contained this information, were entered into the computer through the use
of decks of eighty column keypunch cards
Structural Software developed its own structural analysis program called StruCAD.
Structural Software borrowed heavily from SACS's user interface, basing it on an
eighty column format. Engineering Dynamics brought a claim against Structural
Software alleging that the sequence and organization of its input and output
formats were copyrightable and that Structural Software copied fifty-six of its
The Fifth Circuit determined that the non-literal elements of a computer
program, such as structure, sequence, and organization, might receive copyright
protection. The next question the court addressed was whether Structural
Software copied Engineering Dynamics' input and output formats.
To answer this question the court adopted the abstraction-filtration-comparison
test. In the abstraction portion of the analysis, the court dissected the user
interface into varying levels of generality to aid in distilling the protectable
elements from those, which were merely ideas, methods of operation, and other
The court " stated that abstraction of ideas from expression [did] not pose a
particular conceptual hurdle in this case for three reasons." First, the input
and output formats were analytically distinct from the remaining components of
the SACS program. Second, [Engineering Dynamics] claimed protection of input and
output formats not individually but en masse." The court found that since
Engineering Dynamics sought protection for the formats as a whole, there was no
need to determine whether each individual component was an expression or an un-protectable idea. In the filtration portion of the analysis, the court sought
to isolate non-copyrightable elements from each level of the user interface.
After applying the various copyright limitation doctrines to the remaining
elements at each level of generality, the court determined that the only
potential area of un-protectability was the impact of the scenes a faire
The court then remanded the case to the district court to complete the
filtration analysis and compare the remaining elements of Engineering Dynamics'
user interface to decide if the interfaces were substantially similar. Thus, the
court found that user interfaces, even input and output formats such as SACS
that bear only the slightest bit of expression, are copyrightable.
3.3 Lotus Development Corp. v. Paperback Software International
The scope of user interface copyright reached its maximum breadth in
Development Corp. v. Paperback Software International . The plaintiff's
spreadsheet i.e. Lotus 1-2-3 was written in 1982. At roughly the same time that
the developers of Lotus 1-2-3 were creating the initial version of that
spreadsheet, an independent software developer began to develop his own
electronic spreadsheet. This spreadsheet eventually became the defendant's
VP-Planner program. As the developer of VP-Planner continued to improve his
program before its release, Paperback decided that the only way to compete
effectively against the growing commercial success of Lotus 1-2-3 was to make
VP-Planner "compatible" with 1-2-3 by ensuring that the arrangement and names of
commands and menus in VP-Planner were identical to those in 1-2- 3. VP-Planner
was introduced in 1985.Lotus filed suit against Paperback Software for
infringement of its user interface by VP-Planner of its copyrighted 1-2-3
program at the beginning of 1987.
The court rejected Paperback's standardization arguments on two grounds. First,
the court viewed its own role as one limited to enforcing the mandates of
legislation and resolving unanswered questions in a manner consistent with
legislative policy. On a fundamental level, the court refused to engage in
"lawmaking" by adopting Paperback's policy arguments as the basis for its
decision. The court simply read Paperback's standardization arguments as
inconsistent with Congress' intent in passing the Copyright Act. Second, and
most importantly, the court specifically rejected Paperback's incremental
innovations and de facto industry standard arguments.
The court held that held that the Menu Command hierarchy of Lotus 1-2-3
constituted copyrightable subject matter and that Paperback's VP-Planner program
infringed the Lotus 1-2-3 user interface. The court relied primarily on the
idea-expression distinction in copyright law to reach this conclusion. According
to the court the mere idea of an electronic spreadsheet was not copyrightable.
However, the court noted that the general idea of an electronic spreadsheet
could manifest itself through a variety of expressions. If those expressions are
found not to be essential to an electronic spreadsheet, the court then
concluded, the expression would be copyrightable. The court examined the menu
command system and determined that the particular system designed by Lotus was
not essential to the electronic spreadsheet and was thus copyrightable.
Having found the menu command system to be a mode of expression, the court then
determined the command structure of Lotus 1-2-3 constituted original expression
because other electronic spreadsheet programs incorporate different command
structures. Finally, the court determined that the Lotus 1- 2-3 user interface
was a substantial portion of the program, accounting for the program's overall
popularity. Because Paperback's program copied a substantial portion of Lotus
1-2-3, the district court concluded that Paperback Software was liable to Lotus
for copyright infringement the user interface was an expression of an idea (the
idea could be expressed in several different ways) and therefore, was entitled
to copyright protection.
3.4 Lotus v. Borland International
The Lotus Development Corp. v. Borland International
decision provides greater
restrictions to copyright protection for user interfaces than any other case to
date. It is also the only case involving copyright protection for user
interfaces that the Supreme Court affirmed, although it was a four-to-four vote
and no opinion was delivered.
Lotus filed a claim for copyright infringement after Borland made "a virtually
identical copy of the entire Lotus 1-2-3 menu" command hierarchy. The district
court ruled that the Lotus menu command hierarchy was a copyrightable expression
because "[a] very satisfactory spreadsheet menu tree [could] be constructed
using different commands and a different command structure from those of Lotus
On appeal, however, the First Circuit overruled the district court decision. The
court applied a test that eliminated copyright protection for user interfaces.
This test was inconsistent with established copyright principles. The Lotus
court found that the menu hierarchy of a computer spreadsheet program was a
method of operation and, therefore, could not receive copyright protection.
While deciding on the issue of copyright infringement, the court drew an analogy
with VCRs. The court stated that regardless of the arrangement of the VCR
buttons, they, like the commands in the menu command hierarchy, remained a way
of operating the VCR. Similarly, the court reasoned that even if Lotus arranged
the menu commands differently or chose different labels, the menu commands still
represented a means to use the program. Determining that giving expressive names
to menu commands did not turn an uncopyrightable method of operation into
copyrightable subject matter, the court held that Borland did not infringe
Lotus' copyright by incorporating an identical copy of Lotus' menu commands into
its Quattro programs.
In its analysis, the court found that applying the
abstraction-filtration-comparison test would be misleading because the initial
question should be whether the menu command hierarchy could be copyrighted at
all, and not whether individual elements may be copyrighted.
Next, the court went on to determine whether the Lotus menu command hierarchy
was a method of operation. The Lotus court defined a "method of operation" as
"the means by which a person operates something." In applying this definition
the court found that the menu hierarchy was a method of operation, and thus,
could not be protected. The court also found that the selection and arrangement
could not be protected because it was also part of the method of operation.
However, the court acknowledged it was only deciding whether a particular aspect
of the user interface, the menu hierarchy, could receive protection and not the
user interface as a whole. It is submitted that this decision did not
automatically bar protection for user interfaces, because the court was not
deciding whether the interface, as a whole, was copyrightable.
The Lotus court also cited the need for computer compatibility as a reason for
not protecting the menu hierarchy. The idea of a menu structure or a desktop
interface, however, does not preclude others from developing another desktop
interface or menu. In addition, a user could easily learn new commands or
arrangements in very little time.
The court also stated that it is irrelevant whether the menu command hierarchy
could be expressed in a number of different ways. However, the court then
distinguished the menu command hierarchy from a computer program. The court
reasoned that Borland could achieve the same capabilities as the Lotus 1-2-3
spreadsheet program without copying the program code, but the capabilities of
the Lotus 1-2-3 menu command hierarchy could not be achieved without copying the
There is great divide within the software industry, judiciary and academia on
the issue of copyright protection for user interfaces and menu command
hierarchy. While some have argued that copyright protection for user interfaces
provides vital incentives for development of better products Other have
highlighted the importance of standardization of software user interfaces which
serves the interests of both software users and developers.
In this context it is pertinent to note that history of software development has
indicated that with or without the copyright protection being extended to user
interfaces, the growth in the software industry had been rapid and unhindered.
Further, copyright protection can actually impede growth, as development of user
interfaces has been evolutionary in nature with one developer borrowing from the
earlier ideas of another and then improving user interfaces further.
The court rejected the standardization arguments in in
Lotus Development Corp.
v. Paperback Software International while granting copyright protection to the
plaintiff. However considering the importance of standardization in any industry
especially in a technologically related, the court rejection of standardization
norms seems flawed. Therefore it is submitted that the court in
Development Corp. v. Borland International was correct in recognizing the
importance of inter-operability and standardization while denying the plaintiff
copyright protection. Further, the court’s reasoning that menu command hierarchy
as ‘method of operation’ and thus not eligible for copyright protection is
substantiated by industry practice.
To conclude, we can state that while user interfaces do deserve individual
elements copyright protection when there is sufficient originality, the
protection should not be extended to cases where it hinders standardization and
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