1. Civil No. 88 6837 TJH (TX), filed Nov. 18, 1988.
2. Paragraphs 26,27,28,36,43,78,79,80 and 82 of the answer.
3. Conversation with Allen Grogan of Blanc Gilburne Williams & Johnston, Attorneys for Plaintiff, Los Angeles, Cal., Oct. 11, 1989.
4. Conversation with Thomas A. Lewry of Brooks & Kushman, Southfield, Mich., Attorneys for Defendant, October 14, 1989.
5. E. Esber, An Open Letter to the Software Industry (1988).
6. Sholkoff, Jack, "Breaking the Mold: Forging a New and Comprehensive Standard of Protection for Computer Software", VIII Computer/Law Journal 389 (1988).
7. Estimate supplied by K. Strehlo, Editor, DBMS Magazine, Redwood City, CA., (Nov. 12, 1989).
8. The dBASE language had its genesis in two pre-existing programs. The first was called JPLDIS and was created by the Jet Propulsion Laboratories in the mid-1970's. The second was called Vulcan; it was based on JPLDIS but greatly evolved by Wayne Ratliff, who licensed it to Ashton-Tate in 1980 and sold all rights to Ashton-Tate in 1983. Vulcan was marketed under the name dBASEII. The language as it then existed was added to or "extended" in dBASEIII. The language as used in Foxbase+ is identical to that of dBASEIII, but other programs, such as Nantucket Corporation's Clipper, have extended the language further. Presently, besides Ashton-Tate, there are at least nine database programs by different company using variations of the dBASE language, known in industry vernacular as "dialects". There are also two dozen or more products such as graphics and support libraries, application/code generators, compilers and debuggers, which use the dBASE language as their common starting point and extend it in various ways.
9. D. Ritchie and B. Kernighan, The C Programming Language at xi (1988).
10. Duncan, Forward to R. Lafore, Turbo C, Programming for the IBM (1988).
11. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3rd Cir. 1983).
12. W. Inmon, Technomics: The Economics of Technology and the Computer Industry 33 (1986).
13. Id. at 35.
14. Id. at 2.
15. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932).
16. M. Nimmer, Nimmer on Copyright, §1.03, at 1-31,1-32 (1988).
17. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
18. Compilers, as expressions of a language, are copyrightable. The competition to build a better compiler undoubtedly does contribute to the further development of a language.
19. Conley and Bryan, A Unifying Theory for the Litigation of Computer Software Copyright Cases, 6 Computer/Law Journal 55, 62 (1985).
20. 17 U.S.C. § 102(b) (1982).
21. 101 U.S. 99 (1879).
22. Id. at 103.
23. Id. at 107.
24. Mazer v. Stein, 347 U.S. 201 (1954).
25. Id. at 217.
26. Dymow v. Bolton, 11 F.2d 690 (2d Cir. 1926).
27. 714 F.2d at 1253.
28. Nichols v. Universal Pictures Corp. 45 F.2d 119, 121 (2d Cir. 1930).
29. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).
30. See nn. 26 and 27, supra.
31. Webster's New Collegiate Dictionary (1981).
32. De Remer, Review of Formalisms and Notations, in Compiler Construction, An Advanced Course 37 (F. Bauer and J. Eickel ed. 1976).
33. Ibid at 51.
34. West Publishing Co. v. Mead Data Central, Inc., 616 F.Supp. 1571, 1579 (D.C. Minn. 1985), aff'd 799 F.2d 1219 (4th Cir. 1985), cert. denied 107 S.Ct. 962 (1986).
35. Affiliated Hospital Prods. Inc. v. Merdel Game Mfg. Co., 531 F.2d 1183 (2d Cir. 1975); see also M. Nimmer, Nimmer on Copyright, §218[H], 2-213, n.70.
36. Hartfield v. Peterson, 91 F.2d 998 (2d Cir. 1937).
37. "Both the phrases, so far as they were his, and the arrangement were proper subjects of copyright." Id. at 999.
38. Conley and Bryan, A Unifying Theory for the Litigation of Computer Software Copyright Cases, 6 Computer/Law Journal 55, 104 (1985).
39. Transcription of the "LIST" help screen from dBASE III+.
40. 616 F. Supp. 1571.
41. An editor is a program that facilitates the writing of programs. It provides a screen into which program commands can be entered and certain features that make program writing easier. For example, Brief will remember the last several commands entered and will allow the programmer to eliminate them -- a very useful feature if one has entered several commands in different places throughout a 10,000 line program and then finds that the approach was invalid. A debugger allows the programmer to trace the individual steps of a program's execution in order to find an eliminate errors. Again, a debugger can have many features.
42. Ladd, Benchmarking Turbo C and Quick C, Dr. Dobb's Journal 89-90 (August 1989).
43. "NOTHING IS FASTER…Fox Software products are famous for their unmatched execution speed. . . FoxPro is up to eight times faster than dBASE IV -- more than 15 times faster than dBASEIII PLUS!" Excerpt from Fox Software advertisement, 2 DBMS Magazine Number 13 at 7 (December 1989).
44. Of some hundred and fifty functions available in the Summer '87 release of Clipper, only 78 are supported by dBASEIII+. S. Straley, Programming in Clipper 37-40 (1988).
45. "Although some courts have stated that the meaning of Baker v. Selden is that blank forms cannot be copyrighted, this circuit, like the majority of courts that have considered the issue, has rejected this position and instead held that blank forms may be copyrighted if they are sufficiently innovative that their arrangement of information is itself informative. . .This is not to say that all blank forms or computer files are copyrightable. Only those that by their arrangement and organization convey some information can be copyrighted." 797 F.2d 1222, 1242-1243.
46. Apple v. Franklin, 714 F.2d at 1243; Manpower, Inc. v. Temporary Help of Harrisburg, Inc., 246 F.Supp. 788 (E.D. Pa. 1965); Edwin K. Williams & Co. v. Edwin K. Williams & Co. -- East, 542 F.2d 1053 (9th Cir. 1976).
47. "Thus books intended to record the events of baby's first year, or a record of a European trip, or any one of a number of other subjects, may evince considerable originality in suggestions of specific items of informationwhich are to be recorded, and in the arrangement of such items." Nimmer, supra note 3 at 2-201.
48. Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 128 (D.N.J. 1982).
49. 714 F.2d. at 1253.
50. Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1236, cert. denied 107 S.Ct. 877 (1986).
51. Ibid.
52. 17 U.S.C. § 102(b) (1982).
53. Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521,523-25 (9th Cir. 1984); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 150-52 (3rd Cir. 1983.)
54. Final Report of the National Commission on New Technological Uses of Copyrighted Works (CONTU), reprinted in M. Nimmer, Cases and Materials on Copyright 124 (1985).
55. 714 F.2d at 1251; 725 F.2d at 525.
56. 17 U.S.C. § 102(a) reads, in part: "'Literary works' are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia".
57. 714 F.2d at 1251.
58. It should be noted that the Franklin court improperly defined an operating system. Of the fourteen programs at issue in that case, five are not operating system programs at all, but are user-accessible application programs -- including two language compilers -- that were "bundled" (that is, sold with) the actual operating system. Since the thrust of the holdings of both courts was simply that code is code, and copyrightable, whether it belongs to an application or an operating system, the error is minor. However, it serves to illustrate the difficulty courts dealing with computer issues have in defining and limiting the entities to which they grant or deny protection. See 714 F.2d at 1244, n. 4.
59. Webster's New Collegiate Dictionary 1175 (1981).
60. 714 F.2d at 1251.
61. Id. at 1253.
62. Id.
63. Supra n. 3.
64. "In no case does copyright protection of an original work of authorship extend to any idea, procedure, process, system. . ."
65. Berkowitz, Computer Software Copyright Infringement: The Second Generation, 4 Touro Law Review 97, 133, (1987).
66. 462 F.Supp. 1003 (N.D. Texas 1978).
67. Id. at 1013.
68. 797 F.2d at 1240.
69. Id. at 1234.
70. Id. at 1234-1235.
71. Nichols v. Universal Picture Corp., 45 F.2d 119, 122.
72. Id. at 122-123.
73. Chafee, Reflections on the Law of Copyright, 45 Col.Law Rev. 503, 513 (1945).
74. 797 F.2d 1222, 1225-1227.
75. Id. at 1236.
76. We can also use the "series of abstractions" analysis to come to the same result, with regard file structures. Applied to the file structures at issue in Whelan v. Jastrow, we find that the analysis of the court is also in line with Hand's "series of abstractions" technique:
1. File structures completely filled in with requisite information.
2. File structures, empty of information, but organized and sequenced in a way "sufficiently complex and detailed. .to require certain information and order that information in a particular fashion." The "comprehensiveness and complexity of the file structures . . .are sufficiently informative to deserve copyright protection."
3. A very complex cataloguing structure like the structure of Lexis or Westlaw without any entries yet made.
4. A blank form.
77. Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
78. Broderbund Software, Inc. v. Unison World, 648 F.Supp. 1127 (N.D. Cal. 1986).
79. 429 F.2d 1106 at 1110 (9th Cir. 1970).
80. 562 F.2d 1157 at 1167 (9th Cir. 1977).
81. Sholkoff, J., "Breaking the Mold: Forging a New and Comprehensive Standard of Protection for Computer Software", VIII Computer/Law Journal 389 at 446 (1988).
82. Among the modern cases using the "substantial similarity test" are E.F. Johnson v. Uniden Corp., 623 F.Supp. 1485 (D.C. Minn. 1985) and Williams v. Arndt, 626 F.Supp. 571 (D. Mass 1985).
83. United States Copyright Office Public Hearing on Registration and Deposit of Computer Screen Displays, Written Submission of Apple Computer, Inc., Comment Letter RM 87-4, filed Sept. 4, 1987.
84. Johnson Controls, Inc. v. Phoenix Control Systems, 886 F.2d 1173 (9th Cir. 1989); Lotus Development Corp. v. Paperback Software Int'l., No. 87-0076-K (D. Mass. Filed Feb.3, 1987); Lotus Development Corp. v. Mosaic Software Inc., No. 87-0074-K,(D. Mass. Filed Feb. 3, 1987); Apple Computer, Inc. v. Microsoft Corp., 717 F.Supp. 1428 (N.D. Cal., 1989); Apple Computer, Inc. v. Microsoft Corp., 709 F.Supp. 925 (N.D. Cal., 1989).
85. 648 F.Supp. 1127 (N.D. Cal 1986).
86. 648 F.Supp. 1127 at 1133.
87. "While it is true that Whelan extended copyright protection of computer programs beyond the literal code, it did not extend the protection of the program to include the structure of the audiovisual displays." Berkowitz, Jeffrey Allen, "Computer Software Copyright Infringement: The Second Generation", 4 Touro Law Review 97, 1987.
88. "Purporting to base its decision on Whelan, the court in Broderbund broke new ground by extending protection for computer programs as literary works, to 'the overall structure of a program, including its audiovisual displays' [quoting Broderbund, supra, at 1132]. . .Whelan did not rule on the copyrightability of the overall structure, sequence and organization of the visual screens produced by the computer program." Tito, Celeste, "Case Comment: Broderbund Software, Inc., v. Unison World, Inc., 648 F.Supp. 1127(1986)", VII Computer/Law Journal 535, at 535 & 538 (1987).
89. Id. at 541-542.
90. "Copyright Office Notice on Computer Screen Registration", 26 BNA's Patent, Trademark & Copyright J. 153, 152-155 (1988).
91. M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421 (4th Cir. 1986); Williams Electronics, Inc. v. Artic International, Inc. 685 F.2d 870 (3rd Cir. 1982); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982), cert. denied 459 US 880 (1982) Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2nd Cir. 1982); Midway Mfg. Co. v. Strohon, 564 F.Supp. 741 (N.D. Ill. 1983).
92. C.B.S. Imports Corp. v. United States, 450 F.Supp. 724 at 727 (1978); Suwanee Steamship Co. v. United States, 435 F.Supp. 389 (1977).
93. C.B.S. Imports Corp. v. United States, 450 F.Supp. 724 at 727 (1978).
94. Sholkoff, Jack, "Breaking the Mold: Forging a New and Comprehensive Standard of Protection for Computer Software", VIII Computer/Law Journal 389 at 445, 1988.
95. Id.
96. Sony Corp. v. Universal City Studios, 464 US 417 at 430-431 (1984).