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Tulane Law Review




Since Congress's express acknowledgment of copyright protection for computer programs in 1980, courts have faced the sometimes difficult task of deciding whether the admitted copying of some element from a copyright program constitutes infringement. In Lotus v. Borland, for example, the question was whether the admitted copying by Borland of the Lotus 1-2-3 menu structure constituted infringement. The district court held that it did; the First Circuit held that it did not; and the Supreme Court was unable to decide. This Essay suggests that the First Circuit's resolution is the correct one, but that the reasons the First Circuit articulated for its result are either illogical or insufficient to justify its outcome. In particular, copyright cannot deny protection to the Lotus menu structure because it is used as the First Circuit reasoned, because such an approach would deny copyright protection for computer programs generally. Rather, the decision whether to protect the Lotus menu structure should turn on whether leaving the menu structure unprotected would give competitors an undue advantage in copying the creativity embodied in the Lotus 1-2-3 program, when compared to the advantage available to competitors copying creativity embodied in the wide range of goods that copyright leaves unprotected Because the empirical evidence suggests that leaving the Lotus menu structure unprotected would not give competitors such an undue copying advantage, copyright should not extend its protection to the Lotus menu structure.

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Tulane University School of Law

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