Supreme Court Deadlocks Over Copyright of Software Menu


In a frustrating end to a closely watched software case, the Supreme Court announced Tuesday that it could not decide the question of whether the basic “menu commands” that drive a program can be copyrighted.

Lawyers for Lotus Development, backed by such corporate giants as Xerox, Intel and Digital Equipment, argued that computer software can be copyrighted in its entirety, including the basic commands that drive a program.

But lawyers for Borland International, which had once copied the 1-2-3 format of a Lotus program, said these basic commands are like the keys that operate a typewriter, not the literary or expressive works that emerge from a typewriter and deserve copyright protection.


Justice John Paul Stevens, the heir to a Chicago hotel fortune and owner of a broad stock portfolio, had earlier announced he would not participate in the decision.

Deadlocked, the court issued a brief order Tuesday saying it could not decide the case.

That is good news for Borland because the lower court had rejected Lotus’ infringement suit. It deemed the menu commands to be “a method of operation” that cannot obtain protection under the Copyright Act.

Also Tuesday, the high court dealt a setback to auto makers by allowing a New Hampshire court ruling to remain in place. The ruling allows Ford Motor Co. to be sued because it did not put an air bag in a 1988 Escort.

The company contended that it was protected from such state damage suits because it complied with federal safety laws. In the past, the auto manufacturers had used this preemption argument to ward off damage suits.

But recently, the high court has been more reluctant to shield companies on that basis.


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