🚀 go-pugleaf

tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:

>In article <1992Nov3.184022.22163@fcom.cc.utah.edu>, terry@cs.weber.edu (A 
>Wizard of Earth C) writes:
>> "Look and feel" is a direct result of an attempt to extend the protection
>> granted in a copyright to effectively produce a "software patent", or at
>> least the equivalent. 

Unfortunately, look and feel C/R is invariably much broader than patent 
protection. Additionally, the C/R is never examined.

>"Look and Feel" did not originate with software copyright.  It originated in 
>a case where Sid and Marty Kroft sued McDonald's for producing television 
>commercials with the same "look and feel" as (but no literal copying of) the 
>Kroft TV shows like "H.R. Puffenstuff".  It's not a result of an attempt to 
>effectively produce a software patent.

I do not agree with your logic. Yes, the concept was not invented just
for software. But that is where it is the most insidious. I believe 
that that is partially because of the nature of the medium. Few
media have as much difference between the literal aspects and the
"look and feel". Two programs may look and feel almost identical, yet
have _no_ similarities in their literal embodiment. This is not the
case with most media. For example, in order to get the same feel
from two books, there is invariably some identifiable literal copying.
This need not be the case with software, and almost never is. Note
the (in?)famous look and feel software cases: Lotus v. Paperback,
Lotus v. Borland, Gates v. Bando, etc. There was never _any_ 
"literal" copying of the _protected_ source code.

I believe that Look and Feel is so dangerous primarily because it is
so easy and so broad. You need not register the work until you decide
to go to court (as was done by Gates Rubber in Gates v. Bando). 

The Gates v. Bando case is illustrative of the problems:
1) the plaintiff did not register until the day before filing suit.
2) the plaintiff did not mark his works until at least 4 years
   after the alleged infringement. (Note - pre Berne work)
3) The primary similarities between the two works were functional.
   The main thing that Bando did was to hire away a Gates employ
   to create a work that did the same thing in somewhat the same
   manner.

The Lotus cases are troubling on a slightly different level. 
Lotus is obviously trying to do in the courts what it cannot do
in the marketplace. A defacto standard had grown up. Companies
like Borland did not feel that they could operate without being
compatable with the millions of 123 macros out there. They also
probably couldn't get in the door in corporate America if the
corporations were facing the retraining costs of converting spreadsheets.
(actually, several people have suggested that Gates went after 
Bando for purely competitive reasons, having nothing to do with
the programs at issue in the suit). 

Bruce Hayden
bhayden@csn.org
(303) 758-8400