textfiles/law/uic.law

Note that these arguments don't assume that software should be free.
They are addressed to ordinary developers of proprietary software.

\input texinfo
@setfilename look-and-feel
@settitle Against User Interface Copyright
@headings double

@center @titlefont{Against User Interface Copyright}
@sp 1
@center (February 24, 1991)
@sp 1
@center The League for Programming Freedom

In June 1990, Lotus won a copyright infringement suit against Paperback
Software, a small company that implemented a spreadsheet that obeys the
same keystroke commands used in Lotus 1-2-3.  Paperback was not accused
of copying code from 1-2-3---only of supporting compatible user
commands.  Such imitation was common practice until unexpected court
decisions in recent years extended the scope of copyright law.

Within a week, Lotus went on to sue Borland over Quattro, a spreadsheet
whose usual interface has only a few similarities to 1-2-3.  Lotus
claims that these similarities in keystroke sequences and/or the ability
to customize the interface to emulate 1-2-3 are enough to infringe.

More ominously, Apple Computer has sued Microsoft and Hewlett Packard
for implementing a window system whose displays partially resemble those
of the Macintosh system.  Subsequently Xerox sued Apple for implementing
the Macintosh system, which derives some general concepts from the
earlier Xerox Star system.  These suits try to broaden the Lotus
decision and establish copyright on a large class of user interfaces.
The Xerox lawsuit was dismissed because of a technicality; but if their
planned appeal succeeds, a monopoly of unprecedented scope could still
result.

And Ashton-Tate has sued Fox Software for implementing a database
program that accepts the same programming language used in dBase.  This
is a radical demand, but in the current judicial climate, the threat
cannot be neglected.@footnote{The Ashton-Tate suit was dismissed in
December 1990, but the idea of copyright on a language was not
explicitly rejected; this ruling is being appealed.}  In the same vein,
Adobe claims that the Postscript language is copyrighted, though they
are not suing those who reject this claim.  If a language could be
copyrighted, the result would be devastating for those who have written
programs in the language.

While this paper addresses primarily the issue of copyright on specific
user interfaces, most of the arguments apply with added force to any
broader monopoly.

@heading What Is a User Interface?

A user interface is what you have to learn to operate a machine.  The
user interface of a typewriter is the layout of the keys.  The user
interface of a car includes a steering wheel for turning, pedals to
speed up and slow down, a lever to signal turns, etc.

When the machine is a computer program, the interface includes that of
the computer---its keyboard, screen and mouse---plus those aspects
specific to the program.  These typically include the commands, menus,
programming languages, and the way data is presented on the screen.

A copyright on a user interface means a government-imposed monopoly on
its use.  In the example of the typewriter, this would mean that each
manufacturer would be forced to arrange the keys in a different layout.

@heading The Purpose of Copyright

In the United States, the Constitution says that the purpose is to
``promote the progress of science and the useful arts.''  Conspicuously
absent is any hint of intention to enrich copyright holders to the
detriment of the users of copyrighted works.

The Supreme Court made the reason for this absence explicit, stating in
@cite{Fox Film vs.@: Doyal} that ``The sole interest of the United
States and the primary object in conferring the [copyright] monopoly lie
in the general benefits derived by the public from the labors of
authors.''

In other words, since copyright is a government-imposed monopoly,
which interferes with the freedom of the public in a significant way,
it is justified only if the benefit to the public exceeds the cost
to the public.

The spirit of individual freedom must, if anything, incline us against
monopoly.  Following either the Supreme Court or the principle of
freedom, the fundamental question is: what value does user interface
copyright offer the public---and what price would we have to pay for it?

@heading Reason #1: More Incentive Is Not Needed

The developers of the Star, the Macintosh system, 1-2-3 and dBase
claim that without interface copyright there would be insufficient
incentive to develop such products.  This is disproved by their own
actions.

Until 1986, user interface copyright was unheard of.  The computer
industry developed under a system where imitating a user interface was
both standard practice and lawful.  Under this system, today's
plaintiffs made their decisions to develop their products.  When faced
with the choice in actuality, they decided that they did, indeed, have
``enough incentive''.

Even though competitors were free to imitate these interfaces, this did
not prevent most of the original products from being successful and
producing a large return on the investment.  In fact, they were so
successful that they became @i{de facto} standards.  (The Xerox Star was
a failure due to poor marketing even though nothing similar existed.)

Even if interface copyright would increase the existing incentive,
additional improvements in user interfaces would not necessarily result.
Once you suck a bottle dry, more suction won't get more out of it.  The
existing incentive is so great that it may well suffice to motivate
everyone who has an idea worth developing.  Extra incentive, at the
public's expense, will only increase the price of these developments.

@heading Reason #2: ``Look and Feel'' Will Not Protect Small Companies

The proponents of user interface copyright claim that it would protect
small companies from being wiped out by large competitors.  Yet look
around: today's interface copyright plaintiffs are large, established
companies.  User interface copyright is crushing when the interface is
an effective standard.  However, a small company is vulnerable when its
product is little used, and its interface is little known.  In this
situation, user interface copyright won't help the small company much.

Imagine a small company with 10,000 customers: a large company may
believe there is a potential market of a million users, not reached by
the small company, for a similar product.  The large company will try to
use its marketing might to reach them before the small company can.

User interface copyright won't change this outcome.  Forcing the large
company to develop an incompatible interface will have little effect on
the majority of potential customers---those who have not learned the
other interface.  They will buy from the large company anyway.

What's more, interface copyright will work against the small company if
the large company's product becomes an effective standard.  Then new
customers will have an additional reason to prefer the large company.
To survive, the small company will need to offer compatibility with this
standard---but, due to user interface copyright, it will not be allowed
to do so.

Instead of relying upon monopolistic measures, small companies are
most successful when they rely on their own inherent advantages:
agility, low overhead, and willingness to take risks.

@heading Reason #3: Diversity in Interfaces Is Not Desirable

The Copyright system was designed to encourage diversity; its details
work toward this end.  Diversity is the primary goal when it comes to
novels, songs, and the other traditional domains of copyright.  Readers
want to read novels they have not yet read.

But diversity is not the goal of interface design.  Users of any kind of
machinery want consistency in interfaces because this promotes ease of
use.  Thus, by standardizing symbols on automobile dashboards, we have
made it possible for any licensed driver to operate any car without
additional instruction.  Incompatibility in interfaces is a price to be
paid when worthwhile, not a benefit.

Significantly better interfaces may be hard to think of, but it is easy
to invent interfaces which are merely different.  Interface copyright
will surely succeed in encouraging this sort of ``interface
development''.  The result will be gratuitous incompatibility.

@heading Reason #4: Meaningful Competition Is Reduced

Under the regime of interface copyright, there will be no compatible
competition for established products.  For a user to switch to a
different brand will require retraining.

But users don't like to retrain, not even for a significant improvement.
For example, the Dvorak keyboard layout, invented several decades ago,
enables a typist to type faster and more accurately than is possible
with the standard ``QWERTY'' layout.  Nonetheless, few people use it.
Even new typists don't learn Dvorak, because they want to learn the
layout used on most typewriters.

Alternative products that require such an effort by the consumer are not
effective competition.  The monopoly on the established interface will
yield in practice a monopoly on the functionality accessed by it.  This
will cause higher prices and less technological advancement---a windfall
for lucky businesses, but bad for the public at large.

@heading Reason #5: Incompatibility Does Not Go Away

If there had been a 50-year interface copyright for the steering
wheel, it would have expired not long ago.  During the span of the
copyright, we would have got cars steered with joysticks, cars steered
with levers, and cars steered with pedals.  Each car user would have
had to choose a brand of car to learn to drive, and it would not be
easy to switch.

The expiration of the copyright would have freed manufacturers to switch
to the best of the known interfaces.  But if Ford cars were steered with
wheels and General Motors were steered with pedals, neither company
could change interface without abandoning their old customers.  It would
take decades to converge on a single interface.

@heading Reason #6: Users Invest More Than Developers

The plaintiffs like to claim that user interfaces represent large
investments on their part.

In fact, the effort spent designing the user interface of a computer
program is usually small compared to the cost of developing the
program itself.  The people who make a large investment in the user
interface are the users who train to use it.  Users have spent much
more time and money learning to use 1-2-3 than Lotus spent developing
the entire program, let alone what Lotus spent develop the program's
interface @emph{per se}.

Thus, if investment justifies ownership, it is the users who should be
the owners.  The users should be allowed to decide---in the
marketplace---who may use it.  According to @cite{Infoworld} (mid
January 1989), computer users in general expect user interface copyright
to be harmful.

@heading Reason #7: Discrimination Against Software Sharing

User interface copyright discriminates against freely redistributable
software, such as freeware, shareware and public domain software.

Although it @emph{may} be possible to license an interface for a
proprietary program, if the owner is willing, these licenses require
payment, usually per copy.  There is no way to collect this payment for
a freely redistributable program.  The result will be a growing body of
interfaces that are barred to non-proprietary software.

Authors of these programs donate to the public the right to share them,
and sometimes also to study and change their workings.  This is a public
service, and one less common than innovation.  It does not make sense to
encourage innovation of one sort with means that bar donation of another
sort.

@heading Reason #8: Copyright Will Be a Tool For Extortion

The scope of interface copyright is so vague and potentially wide that
it will be difficult for any programmer to be sure of being safe from
lawsuits.  Most programs need an interface, and there is usually no way
to design an interface except based on the ideas you have seen used
elsewhere.  Only a great genius would be likely to envision a usable
interface without a deep resemblance to current practice.  It follows
that most programming projects will risk an interface infringement suit.

The spirit of ``Millions for defense, but not a cent for tribute'' is
little honored in business today.  Customers and investors often avoid
companies that are targets of suits; an eventual victory may come years
too late to prevent great loss or even bankruptcy.  Therefore, when
offered a choice between paying royalties and being sued, most
businesses pay, even if they would probably win a suit.

Since this tendency is well known, companies often take advantage of it
by filing or threatening suits they are unlikely to win.  As long as any
interface copyright exists, this form of extortion will broaden its
effective scope.

@heading Reason #9: Useful Innovation Is Inhibited

Due to the evolutionary nature of interface development, interface
copyright will actually retard progress.

Fully fleshed-out interfaces don't often arise as @emph{tours de force} from
the minds of isolated masters.  They result from repeated
implementations, by different groups, each learning from the results of
previous attempts.  For example, the Macintosh interface was based on
ideas tried previously by Xerox and SRI, and before that by the Stanford
Artificial Intelligence Laboratory.  The Xerox Star also drew on the
interface ideas that came from SRI and SAIL.  1-2-3 adapted the
interface ideas of Visicalc and other spreadsheets.  dBase drew on a
program developed at the Jet Propulsion Laboratory.

This evolutionary process resembles the creation of folk art rather than
the way symphonies, novels or films are made.  The advances that we
ought to encourage are most often small, localized changes to what
someone else has done.  If each interface has an owner, it will be
difficult to implement such ideas.  Even assuming the owner will license
the interface that is to be improved, the inconvenience and expense
would discourage all but the most determined.

Users often appreciate small, incremental changes that make programs
easier or faster to use.  This means changes that are upwards
compatible, or affect only part of a well-known interface.  Thus, on
computer keyboards, we now have function keys, arrow keys, a delete key
and a control key, which typewriters did not have.  But the layout of
the letters is unchanged.

However, such partial changes as this are not permitted by copyright
law.  If any significant portion of the new interface is the same as a
copyrighted interface, the new interface is illegal.

@heading Reason #10: Interface Developers Don't Want Interface Copyright

At the 1989 ACM Conference on Computer-Human Interaction, Professor
Samuelson of the Emory School of Law presented a ``mock trial'' with
legal arguments for and against user interface copyright, and then asked
the attendees---researchers and developers of user interfaces---to fill
out a survey of their opinion on the subject.

The respondents overwhelmingly opposed all aspects of user interface
copyright, by as much as 4 to 1 for some aspects.  When they were asked
whether user interface copyright would harm or help the field, on a
scale from 1 (harm) to 5 (help), the average answer was
1.6.@footnote{See the May 1990 issue of the @cite{Communications of the
ACM}, for the full results.}

The advocates of user interface copyright say that it would provide
better security and income for user interface designers.  However, the
survey shows that these supposed beneficiaries would prefer to be let
alone.

@heading Do You Really Want a User Interface Copyright?

For a business, ``locking in'' customers may be profitable for a time.
But, as the vendors of proprietary operating systems have found out,
this generates resentment and eventually drives customers to try to
escape.  In the long run, this leads to failure.

Therefore, by permitting user interface copyright, society encourages
counterproductive thinking in its businesses.  Not all businesses can
resist this temptation; let us not tempt them.

@heading Conclusion

Monopolies on user interfaces do not serve the users and do not
``promote the progress of science and the useful arts.''  User
interfaces ought to be the common property of all, as they undisputedly
were until a few years ago.

@heading What You Can Do

@comment Feel free to delete this section when sending a copy
@comment to a politician

@itemize @bullet
@item
Don't do business as usual with the plaintiffs, Xerox, Lotus, Apple and
Ashton-Tate.  Buy from their competitors instead; sell their stock;
develop new software for other computer systems rather than theirs, and
port existing applications away from their systems.

@item
Don't work for the ``look and feel'' plaintiffs or accept contracts
>from them.

@item
Join the League for Programming Freedom---a grass-roots organization of
programmers and users opposing software patents and interface
copyrights.  (The League is not opposed to copyright on individual
programs.)  Annual dues are $42 for employed professionals, $10.50 for
students, and $21 for others.  We appreciate activists, but members who
cannot contribute their time are also welcome.

Phone us at (617) 243-4091, send Internet mail to
@code{league@@prep.ai.mit.edu}, or write to:

@display
League for Programming Freedom
1 Kendall Square #143
P.O. Box 9171
Cambridge, MA 02139
@end display

@item
Give copies of this paper to your friends, colleagues and customers.

@item
In the United States, write to your representatives and to these
Congressional subcommittees:

@display
House Subcommittee on Intellectual Property
2137 Rayburn Bldg
Washington, DC 20515
@end display

@display
Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510
@end display

@item
In Europe, the European Commission is proposing a law that threatens to
permit interface copyright; this law will probably pass in mid-1991
unless programmers and users lobby assiduously now.  Lobbyists working
on this issue say that most members of the European Parliament are
unfamiliar with computers and do not understand how harmful interface
copyright could be; it is up to the citizens of Europe to educate them.

So contact the office of your representative in the Parliament, and try
to arrange to educate him or her.  Also get from your representative the
names of representatives from your country that are on the committee
most specially concerned with this issue, and try to meet with them as
well.

To succeed in the time remaining, you need to be imaginative and
persistent.  One idea is to start teaching your representative the
basics of using 1-2-3.  Once the representative sees how much work is
involved in learning to use an interface, explain that you have only
taught one tenth of the subject.  This should drive the point home.
@end itemize

@bye


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