Amicus Curiae Brief — Lotus Development Corp. v. Borland International, Inc.

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= - No. 94-2003

~ : IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

LoTuUS DEVELOPMENT CORPORATION,

7 Petitioner,

BORLAND INTERNATIONAL, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF

INTELLECTUAL PROPERTY OWNERS

IN SUPPORT OF PETITIONER

MORTON DAVID GOLDBERG

GARY L. GRISWOLD

HERBERT C, WAMSLEY *

INTELLECTUAL PROPERTY

OWNERS

1255 Twenty-Third Street, N.W.

Suite 850

Washington, D.C. 20037

(202) 466-2396

Attorneys for Amicus Curiae

* Counsel of Record

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-2003

Lotus DEVELOPMENT CORPORATION,

i Petitioner,

BORLAND INTERNATIONAL, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

Intellectual Property Owners (“IPO”), a not-for-profit

national organization founded in 1972 to represent the in-

terests of owners of intellectual property in the United

States, respectfully moves for leave to file the attached

brief amicus curiae in this copyright infringement case.

The consent of the attorney for petitioner has been ob-

tained. The consent of the attorney for respondent was

requested but refused.

Membership in IPO currently includes nearly one

hundred large and mid-size companies and more than

three hundred small businesses, universities, independent

inventors, authors, executives and attorneys who own or

are interested in patents, trademarks, copyrights and other

intellectual property rights. Many of IPO’s members de-

velop computer software, either to compete in the world-

wide software market, to complement the services they

provide their customers, or to support other segments of

their businesses.

Computer software development has become a key part

of the United States economy. As with all copyright in-

dustries, it relies on appropriate levels of copyright pro-

tection for the works it creates. Because the market for

computer programs is nationwide, the industry also relies

on a measure of national uniformity in the application of

travenes both of these important industry expectations.

The First Circuit has denied copyright protection to

expression in one of the most creative elements of a com-

puter program—the interface between the computer and

the user—because that element performs a useful func-

tion. Even though copyright protection was conferred on

authors of computer programs by Congress, the First

Circuit’s decision threatens to deny that protection to the

expression of any program element that also performs a

useful function.

The First Circuit’s interpretation of Section 102(b) of

the Copyright Act, on which it based its denial of copy-

right protection to the Lotus 1-2-3 user interface, con-

flicts with the interpretation of that provision in other

circuits. This conflict subjects the works of computer

program authors to flatly contradictory legal rules within

a national marketplace. *»

~ This Regis much more than a dispute between the

parties: it is a clash betweef*rwo fundamentally-opposed

views of what protection the Copyright Act provides for

computer software. That is why this case has attracted

such extraordinary attention within the computer industry

—as the ten briefs amicus curiae filed in the First Cir-

cuit attest.

One view embraces the Congress’ decision that com-

puter programs are literary works, to be afforded protec-

tion under copyright law in accordance with the same

principles that apply to all copyrighted works. In this

view, appropriate protection under copyright law fosters

innovative competition in the software industry and ful-

ep ee rw ge mens et ey

fills the Constitutional dictate “to promote the progress

of science and useful arts.” U.S. Const. art. 1, § 8, cl. 8.

IPO holds this view, together with the greater part of the

software industry.

The opposite view rejects Congress’ decision that pro-

grams should be protected under copyright. By attempt-

ing to erect special judicial barriers to protection of com-

puter programs, those expressing this view seek to curtail

the protection that the copyright statute confers. They

do so to foster imitative competition—competition

founded on copying the fruits of others’ innovative

development.

As an association representing some of the leading in-

novators in the software industry, IPO is in a unique

position to bring to the Court's attention the viewpoint

of the major portion of the business sector that is most

affected by the decision below. IPO is in a better position

than the parties to assist the Court in assessing the impor-

tant legal and policy implications of this case for the soft-

ware industry and the copyright system. IPO’s brief

amicus curiae focuses on these considerations. IPO re-

spectfully requests that its motion be granted and that its

brief be considered by the Court in connection with the

petitioner’s request for the grant of a Writ of Certiorari.

Respectfully submitted,

MORTON DAVID GOLDBERG

GARY L. GRISWOLD

HERBERT C. WAMSLEY *

INTELLECTUAL PROPERTY

OWNERS

1255 Twenty-Third Street, N.W.

Suite 850

Washington, D.C. 20037

(202) 466-2396

Attorneys for Amicus Curiae

July 7, 1995 * Counsel of Record

Il.

TABLE OF CONTENTS

THE DECISION BELOW CONFLICTS WITH

DECISIONS OF OTHER CIRCUITS AND

CREATES UNCERTAINTY AS TO COPY-

RIGHT PROTECTION OF COMPUTER PRO-

I dlattisteosceneinlitnenttbesctetinnhinntineninaniaitesesiigpesan

A. The First Circuit’s Holding on Copyright-

ability of User Interfaces Conflicts With

Decisions of Three Other Circuits ......... ilies

B. Applied to Computer Programs, the First

Circuit’s Interpretation of 17 U.S.C. Section

102(b) Conflicts With Decisions of at Least

kg RE EE ne a

C. A Conflict in Rules of Copyrightability

Leaves Program Authors Uncertain of Their

Rights and Discourages Creation of Com-

yA ee

THE DECISION BELOW DENIES COM-

PUTER PROGRAMS THE COPYRIGHT PRO-

TECTION MANDATED BY CONGRESS AND

DIMINISHES THE STATUTORY INCEN-

TIVES TO CREATE THEM ............................

A. The First Circuit Misinterpreted a Key Pro-

vision of the Copyright Act Because It

Failed to Employ Appropriate Means of

Statutory Construction .20 nn.

B. Denying Protection to Expression in Com-

puter Programs Erodes Severely the Incen-

tives Congress Enacted for Their Authors...

(i)

TABLE OF CONTENTS—Continued

C. The First Circuit’s Construction of Section

102(b) Is Such a Significant Departure

From That of the Overwhelming Majority

of Courts of Appeals and District Courts

as to Call for an Exercise of This Court's

a Fk fl ee

GUS cccerecncqrnssettecnennesetctertenencemenrremmnmnnannen

Page

iii

TABLE OF AUTHORITIES

Cases

Apple Computer, Inc. v. Formula Int'l, Inc., 562

F. Supp. 775 (C.D. Cal. 1983), aff'd, 725 F.2d

I I cement

Apple Computer, Inc. v. Franklin Computer Corp.,

714 F.2d 1240 (3d Cir. 1983), cert. dismissed,

RE ERE A ae MRE

Apple Computer, Inc. v. Microsoft Corp., 35 F.3d

1435 (9th Cir. 1994), cert. denied, ——- U.S.

—, 115 S. Ct. 1176 (1995) .................0............

Atari Games Corp. v. Nintendo of America, Inc.,

975 F.2d 882 (Fed. Cir. 1992) ..............................

Atari Games Corp. v. Oman, 888 F.2d 878 (D.C.

a I

Atari, Inc. v. North American Philips Consumer

Electronics Corp., 672 F.2d 607 (7th Cir.), cert.

denied, 459 U.S. 880 (1982) _...........0...00e..

Autoskill, Inc. v. National Educational Support

Systems, Inc., 994 F.2d 1476 (10th Cir.), cert.

denied, U.S. ——, 114 S. Ct. 307 (1993)...

Baker v. Selden, 101 U.S. 99 (1879) 2.000000...

Brown Bag Software v. Symantec Corp., 960 F.2d

1465 (9th Cir.), cert. denied, —— U.S. ——,

I a

Cable/Home Communication Corp. v. Network

Products, Inc., 902 F.2d 829 (11th Cir. 1990).

CCC Information Services, Inc. v. Maclean Hunter

Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994),

petition for cert. filed, 63 U.S.L.W. 3892 (U.S.

pS SERED ee BP

Computer Associates International, Inc. v. “Altai,

Inc., 982 F.2d 693 (2d Cir. 1992) . hie

Engineering Dynamics, Inc. v. Structural Soft-

ware, Inc., 26 F.3d 1335 (5th Cir. 1994), opin-

ion supplemented on denial of rehearing, 46

-» ¥ §F ¥. S Fee

FDIC v. Meyer, 510 U.S. ——, 114 S. Ct. 996

(1994) be SRE CL te eae ee <

Page

6,8

TABLE OF AUTHORITIES—Continued

Page

Gates Rubber Co. v. Bando Chemical Industries,

Ltd., 9 F.3d 823, 834 (10th Cir. 1998) —.............. x

Gustafson v. Alloyd Co., —— U.S. ——, 115 S. Ct.

DE ee ee ee 13

Harper & Row, Publishers v. Nation Enterprises,

SS ESE ae eee See 19

Kelly v. Robinson, 479 U.S. 36 (1986) —.................. 11

Kepner-Tregoe, Inc. v. Leadership Software, Inc.,

12 F.3d 527 (5th Cir.), cert. denied, —— U.S.

comm, UD Gy GR, GD GID cceitectecitetncncctncctiicceresnccin 17

Lotus Development Corp. v. Borland International,

Inc., 49 F.3d 807 (1st Cir.), petition for cert.

filed, 63 U.S.L.W. 3892 (U.S. June 7, 1995)

i SID ilitsiciietsciainiihtiabbininealpichadisatctiatiiatdigtiniiiamisiaid passim

Lotus Development Corp. v. Borland International,

Inc., 788 F. Supp. 78 (D. Mass. 1992), rev'd,

49 F.3d 807 (ist Cir.), petition for cert. filed,

63 U.S.L.W. 3892 (U.S. June 7, 1995) (No.

EEE ae pe a ae earn Se ako eee 6

Lotus Development Corp. v. Paperback Software,

International, 740 F. Supp. 37 (D. Mass. 1990) .. 6

M. Kramer Manufacturing Co. v. Andrews, 783

yo Ff FF * eae Satis 7,17

Mazer v. Stein, 347 U.S. 201 (1954) ........00000000....... 18

Nichols v. Universal Pictures Corp., 45 F.2d 119

(2d Cir. 1930), cert. denied, 282 U.S. 902

I a a x

Robert R. Jones Associates, Ine. v. Nino Homes,

py | f tT: % Faeeereseeeere 17

Toro Co. v. R & R Products Co., 787 F.2d 1208

a ee 17

Whelan Associates, Inc. v. Jaslow Dental Labora-

tory, Inc., 797 F.2d 1222 (3d Cir. 1986), cert.

denied, 479 U.S. 1081 (1987) ..........0000000eee. 17

Constitutional Provision, Statutes and Public Laws

United States Constitution, art. I, § 8, cl. 8 —............. 18

gk EET a ees oe er 4,12, 15

TABLE OF AUTHORITIES—Continued

Page

ARES SEES RIES ea ine oe 12, 13, 17

Be IED linsihini dichnleicntctorensertumnniagomnatesiaaneeniastl passim

ICR SERIES re ae 13

Pub. L. No. 96-517, 94 Stat. 3015 (1980) 00000000000... 14

Legislative Materials

H.R. 5680, H.R. 6831 and H.R. 6835 before

Subcomm. No. 3 of the House Comm. on the

Judiciary, 89th Cong., Ist Sess. (1965) ........... 12

S. Res. 37 on S. 597 before the Subcomm. on

Patents, Trademarks, and Copyrights of the

Senate Comm. on the Judiciary, 90th Cong., 1st

By GED. erceenctrccpnnrcencjasenieenencapnmanseccsnenscncesenqnonses 12

H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976),

reprinted in 1976 U.S.C.C.A.N. 5659 2. 10, 13, 17

House Comm. on the Judiciary, Copyright Law

Revision (Comm. Print 1965) (1964 Revision

Bill with Discussions and Comments) ................ 12

Other Authorities n

Final Report of the National Commission on New

Technological Uses of Copyrighted Works

adn ES ARE i LEDS RA OT oO 12

Jane C. Ginsburg, Four Reasons and a Parador:

The Manifest Superiority of Copyright over

Sui Generis Protection of Computer Software,

94 Colum. L. Rev. 2559 (1994) ...... 15

Arthur R. Miller, Copyright Protection for Com-

puter Programs, Databases, and Computer Gen-

erated Works: Is Anything New Since CONTU?,

106 Harv. L. Rev. 977 (1993) . 16

Melville B. Nimmer and David Nimmer, Nimmer

EE RARE SE ee NN IN 5,15

U.S. Dept. of Commerce, U.S. Global Trade Out-

look 1995-2000: Toward the 21st Century

(1995) ...... RE 5 I ENS SES NS OE cL 2,3

TABLE OF AUTHORITIES—Continued

Page

U.S. Dept. of Commerce, U.S. Industrial Outlook

2 eee Ser ae SS ee 2

Webster's Ninth New Collegiate Dictionary

EE ee a ee ee 15

IN THE

Supreme Court of the Uuited States

OcTOBER TERM, 1995

No. 94-2003

Lotus DEVELOPMENT CORPORATION,

. Petitioner,

BORLAND INTERNATIONAL, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF AMICUS CURIAE OF

INTELLECTUAL PROPERTY OWNERS

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Intellectual Property Owners (“IPO”) files this amicus

curiae brief in support of the petition of Lotus Develop-

ment Corporation (“Lotus”) for a writ of certiorari to

review the ruling of the United States Court of Appeals

for the First Circuit.

IPO is a national organization founded in 1972 and

representing the interests of owners of intellectual prop-

erty in the United States. Membership in IPO currently

includes nearly one hundred large and mid-size companies

and more than three hundred small businesses, universities,

independent inventors, authors, executives and attorneys

who own or are interested in patents, trademarks, copy-

rights and other intellectual property rights. Members of

the Board of Directors of the association are listed in the

Appendix to this brief. IPO is a non-profit association

exempt from federal income tax under Internal Revenue

Code § 501(c)(6).

IPO has no interest in either of the parties to this

appeal or in the outcome of this appeal, other than to the

extent that it affects IPO members and the public gen-

erally.’ Its interest is in the issues before the Court, which

are of concern to IPO members, particularly those in the

computer and software industries. Many of IPO’s mem-

bers develop computer software, either to compete in the

worldwide software market, to complement the services

they provide their customers, or to support other seg-

ments of their businesses.

This case presents critical issues concerning the extent

to which copyright protects computer programs. The

computer software industry has long relied on copyright

law and the incentives it provides. Under the regime es-

tablished by Congress that recognizes computer programs

as literary works and accords them full protection under

of the major American industries. At the same time, the

United States has become the dominant force in the world

software market, supplying approximately 75% of the

nearly $70 biilion worldwide packaged software market

in 1993 and maintaining a positive balance of trade. U.S.

Dept. of Commerce, U.S. Global Trade Outlook 1995-

2000: Toward the 21st Century 134-35 (1995) (“Trade

Outlook”). From 1991 to 1994 the market for packaged

software in the United States increased by nearly 41%,

to $35.6 billion, id., making it one of the fastest growing

sectors in our-national economy. U.S. Dept. of Com-

merce, U.S. Industrial Outlook '94, at 27-1 (1994). Em-

ployment in the software industry has risen every year

1 One of IPO’s members, International Business Machines Cor-

poration, has recently agreed to purchase al) of the outstanding

shares of Lotus, a non-member.

since 1988 (the first year for which such data are avail-

able), creating nearly 73,000 jobs over that period.

Trade Outlook, at 134.

ARGUMENT

The central question in this case is whether copyright in

a computer program protects the expression in the pro-

gram’s user interface—i.e., the element of the computer

program that permits the program author to communicate

with the user, and permits the user to communicate with

the computer. At least three courts of appeals have held

that expression in the user interface of a computer pro-

gram is copyrightable.* In the decision below,” the First

Circuit accepted the district court’s finding that the user

interface before it, the menu command hierarchy * of the

Lotus 1-2-3 spreadsheet program, contained expression,

and that other ways of expressing the ideas underlying

the user interface were available. 49 F.3d at 816. The

court concluded that this case involves the defendant’s

“deliberate, literal copying of the Lotus menu command

hierarchy.” /d. at 814. Nonetheless, the court below

found that the Lotus 1-2-3 menu command hierarchy was,

in its entirety, a “method of operation.” For that reason,

it held that Section 102(b) of the Copyright Act, 17

U.S.C. § 102(b), deprived it of protection. 49 F.3d at

815."

2 See infra, pp. 4-6.

% Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir.),

petition for cert. filed, 63 U.S.L.W. 3892 (U.S. June 7, 1995)

(No. 94-2003).

* The Lotus “menu command hierarchy” is the selection of 469

commands and their hierarchical arrangement into more than 50

menus and submenus. 49 F.3d at 809. Together they comprise the

heart of Lotu&é 1-2-3’s user interface.

* 17 U.S.C. § 102(b) provides:

In no case does copyright protection for an original work of

authorship extend to any idea, procedure, process, system,

In the First Circuit’s view, “ ‘method of operation,’ as

that term is used in § 102(b), refers to the means by

which a person operates something, whether it be a car,

a food processor, or a computer.” /d. Since a user inter-

face is a “means by which a person operates . . . a com-

puter,” the court’s reasoning appears to preclude pro-

tection for any user interface.

But the First Circuit’s reasoning has troubling impli-

cations for all elements of computer programs—not just

user interfaces—and, indeed, for computer programs as

a whole. A computer program, defined in the Copyright

Act as “a set of statements or instructions to be used

directly or indirectly in a computer in order to bring

about a certain result,” is a means by which a person

operates a computer. 17 U.S.C. § 101 (emphasis sup-

plied). Virtually all elements of a program are means

of operating some aspect of a computer. The First Cir-

cuit’s construction of Section 102(b) might well preclude

protection for all such elements, even for the literal code

of programs." In his concurring opinion Judge Boudin,

in fact, acknowledges that such a literal reading of Sec-

tion 102(b) “might easily seem to exclude most com-

puter programs from protection.” 49 F.3d at 820 (Bou-

din, J., concurring). That result is clearly at odds with

the statute, with the stated intent of Congress and with

the weight of judicial authority in other circuits.

method of operation, concept, principle, or discovery, regard-

less of the form in which it is described, explained, illustrated,

or embodied in such work.

*The court’s effort to distinguish “computer code” from the

Lotus menu command hierarchy, 49 F.3d at 816, rests on flawed

reasoning. See infra, note 16.

I. THE DECISION BELOW CONFLICTS WITH DECI-

SIONS OF OTHER CIRCUITS AND CREATES

UNCERTAINTY AS TO COPYRIGHT PROTECTION

OF COMPUTER PROGRAMS

A. The First Circuit’s Holding on Copyrightability of

User Interfaces Conflicts With Decisions of Three

Other Circuits

The First Circuit’s holding is flatly inconsistent with

decisions on user interfaces of computer programs in other

circuits. Each of the three other courts of appeals that

have considered the issue has found that the user interface

of a computer program is protectible by copyright. Not

one court of appeals has interpreted Section 102(b) of

the Copyright Act to preclude protection for the original

expression contained in a user interface.’

The First Circuit acknowledged that its decision con-

flicts directly with that of the Tenth Circuit in Auto-

skill, Inc. v. National Educational Support Systems, Inc.,

994 F.2d 1476 (10th Cir.), cert. denied, USS. ,

114 S. Ct. 307 (1993). 49 F.3d at 818-19. In Autoskill,

the Tenth Circuit found that aspects of the plaintiff's user

interface could be protected under copyright. 994 F.2d

at 1495 & n.23. The court expressly rejected the defend-

7 We refer, of course, to expression that has not “merged” with

the underlying idea. Expression is deemed to have merged with

the underlying idea when there is only one way available to express

the idea. See generally 3 Melville B. Nimmer and David Nimmer,

Nimmer on Copyright § 13.08(B](3] (1994) (hereinafter, “Nim-

mer”). The court below acknowledged, 49 F.3d at 810-11, 816, that

there were many alternative ways of expressing the ideas in the

Lotus menu command hierarchy (thus ruling out merger), but

found that to be “immaterial” to its analysis. /d. at 816.

By referring to “original expression” we exclude “scénes a faire”

—stock treatments of a given subject—that, if protected at all, are

protected only against wholesale appropriation. See Atari Games

Corp. v. Oman, 888 F.2d 878, 886 (D.C. Cir. 1989) (R.B.

Ginsburg, J.).

ant’s contention, based on Section 102(b), that the means

by which a user communicated with the plaintiff's pro-

gram was a “ ‘method’ not protected by copyright.” /d.

at 1495 n.23.

In Apple Computer, Inc. v. Microsoft Corp., 35 F.3d

1435 (9th Cir. 1994), cert. denied, U.S. ——, 115

S. Ct. 1176 (1995), the Ninth Circuit held that the user

interface of the plaintiff's computer program was entitled

to copyright protection, though, in that case, only against

virtually identical copying. /d. at 1439. Since the First

Circuit acknowledged that the defendant below, Borland

International, Inc. (“Borland”) made a virtually identical

copy of the menu command structure of Lotus 1-2-3, 49

F.3d at 810, but denied it any protection, the conflict

between the First and Ninth Circuits is apparent.*

The Fifth Circuit, in Engineering Dynamics, Inc. v.

Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994),

opinion supplemented on denial of rehearing, 46° F.3d

408 (Sth Cir. 1995), held that the entirety of the input

and output formats that comprised the user interface of

the plaintiff's program was protectible under copyright.

26 F.3d at 1343-44. That court followed Judge Keeton’s

holding in Lotus Development Corp. v. Paperback Soft-

ware, international, 740 F. Supp. 37 (D. Mass. 1990),

upon which Judge Keeton based much of his reasoning

in the district court decisions in this case. E.g., Lotus

Dev. Corp. v. Borland Int'l, Inc., 788 F. Supp. 78, 89-90

(D. Mass. 1992), rev'd, 49 F.3d 807 (ist Cir.), peti-

tion for cert. filed, 63 U.S.L.W. 3892 (U.S. June 7,

1995) (No. 94-2003).

*The First Circuit also recognized that its holding conflicted

with what it described as Ninth Circuit dicta in Brown Bag

Software v. Symantec Corp., 960 F.2d 1465 (9th Cir.), cert. denied,

— US. ——, 118 S. Ct. 198 (1992). 49 F.3d at 819 n.14.

B. Applied to Computer Programs, the First Circuit's

Interpretation of 17 U.S.C. Section 102(b) Conflicts

With Decisions of at Least Five Other Circuits

By erecting Section 102(b) as a barrier to deny pro-

tection to original expression in computer programs, the

First Circuit has set itself in conflict with all circuits that

have considered the application of that provision to com-

puter software.

In Apple Computer, Inc. v. Franklin Computer Corp.,

714 F.2d 1240 (3d Cir. 1983), vert. dismissed, 464 U.S.

1033 (1984), the Third Circuit rejected a defendant's

claim that Section 102(b) deprives operating system pro-

grams (the programs that control the basic functions of

a computer, such as the storage and retrieval of informa-

tion from a magnetic disk) from copyright protection be-

cause they implement methods, processes, ideas and sys-

tems. /d. at 1251-52.”

In M. Kramer Manufacturing Co. v. Andrews, 783

F.2d 421 (4th Cir. 1986), the Fourth Circuit reversed

the district court’s holding that plaintiff's computer video

game (a type of computer program) was not copyright-

able under Section 102(b). The district court’s premise

had been that plaintiffs work was “a ‘system or manner

of playing a game’ or ‘description of a game’ and was

simply an ‘idea... .’” Jd. at 434. The Fourth Circuit

held the reliance on Section 102(b) to be “unwarranted”

because it failed to recognize “the limited purpose of the

subsection itself as stated in its legislative history,” id.,

*The Third Circuit also concluded that the desire to achieve

compatibility with a competitor's product does not permit distort-

ing the merger doctrine in order to justify a taking of copyrighted

expression. Apple v. Franklin, 714 F.2d at 1253. The First Circuit,

by contrast, posited Borland’s desire to achieve keystroke compati-

bility with Lotus 1-2-3 as a further ground for its decision that

Lotus’ menu command hierar:'iy was unprotectible, justifying

Borland’s wholesale taking. 49 F.3d at 817-18.

simply to restate the dichotomy between idea and ex-

pression. /d. at 434-35.

In holding that “methods of operation are not limited

to mere abstractions,” the decision below conflicts with

the Second Circuit’s decision in Computer Associates In-

ternational, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir.

1992). In Altai, the Second Circuit implemented what it

described as Section 102(b)'s “fundamental principle . . .

that a copyright does not protect an idea, but only the

expression of the idea,” id. at 703, by employing an “ab-

stractions” test as the first step of its infringement analy-

sis."° Id. at 706. Altai applied that test, enunciated by

Learned Hand in Nichols v. Universal Pictures Corp., 45

F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 US.

902 (1931), to separate protectible expression from un-

protectible ideas and other abstractions, for “the pur-

pose of defining the scope of plaintiff's copyright.” Altai,

982 F.2d at 707 (internal quotes and citation omitted).

In contrast to the First Circuit, the Second Circuit did

not employ Section 102(b) as a barrier to deny protec-

tion to expression embodying ideas and other unprotectible

matter. By abstracting, it was able to consider the “core

of protectible material” that was separable from matter

unprotectible under that section.

The First Circuit's conflict with the Second Circuit's

Altai decision places it in conflict with those other cir-

cuits that have adopted some formulation of an abstrac-

tions test. See, e.g., Engineering Dynamics, 26 F.3d at

1342-43; Gates Rubber Co. v. Bando Chem. Indus.. Ltd..

9 F.3d 823, 834 (10th Cir. 1993). See also, Atari Games

'* The court below stated that its “initial inquiry is not whether

the Lotus menu command hierarchy incorporates any expression,”

49 F.3d at 816, but recognized that “the Altai test would contem-

plate this being the initial inquiry.” /d. at 816 n.12. It further

acknowledged its conflict with the Second Circuit by criticizing

Altai’s test because it “may actually be misleading . . . in instruct-

ing courts to abstract the various levels... .” /d. at 815.

a A

Corp. v. Nintendo of America, Inc., 975 F.2d 832, 839

(Fed. Cir. 1992) (approving the Altai test in dicta).

C. A Conflict in Rules of Copyrightability Leaves

Program Authors Uncertain of Their Rights and

Discourages Creation of Computer Programs

In the wake of the First Circuit’s decision, there is a

profound variation among the circuits in the legal stand-

ards governing copyright protection of computer programs.

The resulting uncertainty will have a significant adverse

impact on the software industry.

The software industry depends on copyright law. In-

novation drives the industry, and copyright law provides

both the necessary incentive for that innovation and the

primary means of protecting the works that result from

it. Copyright lies at the very heart of the creative en-

deavor of software development. And the question of

what is copyrightable and what is not lies at the very heart

of copyright law.

Moreover, the market for software is not regional, but

national (and international). Packaged software such as

Lotus 1-2-3 and Quattro Pro (the programs at issue

here) is advertised and promoted nationally, and is mar-

keted—directly, through mail-order houses, and

chains of retail stores—in every state in the United States.

As a consequence of these two factors, the First Cir-

cuit’s decision subjects the industry’s primary assets to

the uncertainty of flatly contradictory legal rules in the

marketplace. A software developer cannot know whether.

or to what extent, its investments in creative expression

will be protected. Such protection is subject to the

vagaries of forum and venue. All that is certain is that

the question will arise in the lower courts in every case

of alleged copyright infringement involving computer

programs.

Software development is expensive. Billions of research

and development (“R&D”) dollars ride on the disposition

of these issues. Developers will not risk such substantial

sums for the time and talent of creative programmers

without assurance of sufficient legal protection for the

fruits of that investment. Yet developers are now threat-

ened with precisely that risk. There is no way of predict-

ing whether a program or any element of a program

will be protected. This uncertainty makes investment of

R&D resources in innovative software development an

unreasonably risky wager, and will likely force some to

invest those resources in other endeavors.

The reverse side of this uncertainty is that software

developers cannot predict where the boundaries of per-

missible copying lie. A program that infringes in Texas

may not infringe in Massachusetts. Uncertainty on such

fundamental matters defeats the goal of a uniform national

Sess., at 129-30 (1976) (the “House Report”), reprinted

in 1976 U.S.C.C.A.N. 5659, 5745-46 (discussing impor-

tance of the goal of a uniform national copyright law, as

espoused by the Framers of the Constitution).

Moreover, the decision creates uncertainty in an area

of law where decisions in the courts of appeals had been

converging. Departing from this trend toward coherence

and consensus, the First Circuit has unsettled what had ap-

peared to be settled, and created unnecessary uncertainty

about the legal rules that apply to a key national industry.

Il. THE DECISION BELOW DENIES COMPUTER

PROGRAMS THE COPYRIGHT PROTECTION

MANDATED BY CONGRESS AND DIMINISHES

THE STATUTORY INCENTIVES TO CREATE

THEM

In holding that the district court erred by limiting

“Lotus 1-2-3’s ‘method of operation’ to an abstraction,”

49 F.3d at 816, the First Circuit erected Section 102(b)

of the Copyright Act as an initial barrier, denying protec-

tion to certain categories of works, or elements of works,

regardless of their expressive content. The Copyright

Act does not read that way, Comgress did not intend it

to be read that way, and no other court of appeals has

read it that way.

The First Circuit's misreading is a direct result of its

failure te fellow the holdings of this Court and employ

appropriv‘e methods of statutory interpretation. As ap-

plied te cefmputer programs the First Circuit's holding is

not merely wrong: it defeats Congress’ clear mandate that

computer programs be protected under copyright. The

decision departs so substantially from settled copyright

law, from accepted means of Statutory construction, and

from the clearly-stated will of Congress, as to call for

an exercise of this Court’s power of supervision over the

lower Federal Courts.

A. The First Circuit Misinterpreted a Key Provision

of the Copyright Act Because It Failed to Employ

Appropriate Means of Statutory Construction

Without citing any authority for its conclusion, the

court below determined that “ ‘method of operation,’ as

that term is used in § 102(b), refers to the means by

which a person operates something, whether it be a car,

a food processor, or a compuier.” 49 F.3d at 815. Ac-

cording to the court, anything that falls within that defi-

nition is wholly deprived of copyright protection, even to

the extent that it contains creative expression. /d. at

815-19.

But a court should interpret a statutory provision in

light of “the provisions of the whole law, and. . . its

object and policy,” Kelly v. Robinson, 479 US. 36, 43

(1986) (citations and internal quotations omitted), as

revealed by the statutory text and legislative history. The

First Circuit failed utterly to do this. Without so much

as a sideways glance, the First Circuit looked at Section

102(b) in isolation and proffered an interpretation of

the provision that undoes what Congress did elsewhere

in the statute."

Congress’ inclusion of a definition of “computer pro-

gram” in Section 101 is, in itself, persuasive evidence of

Congress’ mandate that computer programs be counted

among the “works of authorship” protected under Sec-

tion 102(a). The legislative history of the Copyright Act

confirms that they are.

The Copyright Act of 1976 culminated more than three

decades of consideration and debate by Congress. Con-

gress considered many different viewpoints presented in

testimony, written submissions, and studies. Protection of

computer programs figured prominently in these proceed-

ings,’ particularly after the Copyright Office—the agency

charged with determining that a work sought to be regis-

tered is copyrightable subject matter—began issuing reg-

istrations for claims of copyright in computer programs

in 1964. Final Report of the National Commission on

New Technological Uses of Copyrighted Works, 15

(1978) (“CONTU Final Report”).

"The canon that a court “construe[s] a statutory term in

accordance with its ordinary or natural meaning,” FDIC v. Meyer,

510 U.S. ——., 114 8. Ct. 996, 1001 (1994), should not be applied

to a single phrase in isolation in a way that defeats other provi-

sions of the statute.

2 See, e.g., Copyright Law Revision: Hearings on H.R. 4847,

H.R. 5680, H.R. 6831 and H.R. 6835 before Subcomm. No. 8 of the

House Comm. on the Judiciary, 89th Cong., Ist Sess. 1144-50

(Statement of John F. Banzhaf Il), 1898-99 (letter from Graham

W. McGowan to Hon. Edwin E. Willis, House Judiciary Commit-

tee), 1428, 1443, 1446-48, (statement of Bella L. Linden), 1472

(statement of Howard A. Meyerhoff), 1565 (statement of Fred

S. Siebert) (1965); 5 House Comm. on the Judiciary, Copyright

Law Revision 62-63 (testimony of Morton David Goldberg), 271

(statement of H. R. Mayers) (Comm. Print 1965) (1964 Revision

Bill with Discussions and Comments); Copyright Law Revision:

Hearings Pursuant to S. Res. 37 on S. 597 before the Subcomm. on

Patents, Trademarks, and Copyrights of the Senate Comm. on the

Judiciary, 90th Cong., Ist Sess. 192-201 (1967) (testimony and

statement of Prof. Arthur R. Miller).

Still, Congress sought further input and constituted a

panel of experts, the National Commission on New Tech-

nological Uses of Copyrighted Works (“CONTU”), to

study and make recommendations concerning, inter alia,

the proper regime for protecting computer programs. Pub.

L. No. 93-573 (1974). The Copyright Act was enacted

before CONTU’s study was complete. However, the com-

mittee report that Congress prepared when deliberating

on the Copyright Act” states plainly that computer pro-

grams are among the literary works protected by Section

102(a)(1) of the statute:

The term “literary works” does not connote any

criterion of literary merit or qualitative value: it

includes catalogs, directories, and similar factual,

reference, or instructional works and compilations of

data. It also includes computer data bases, and

computer programs to the extent that they incor-

porate authorship in the programmer’s expression of

original ideas, as distinguished from the ideas them-

selves.

House Report, at 54, reprinted in 1976 U.S.C.C.AN. at

5667.

CONTU took testimony and written submissions from

numerous experts in copyright and information technol-

ogy. CONTU Final Report, at 113-14, 121-29. After

consideration and debate, CONTU concluded that copy-

right should protect computer programs to the same de-

gree as, and under the same principles that apply to,

other copyrighted works. CONTU Final Report, at 11-14.

In 1980 Congress adopted CONTU’s recommendations

with immaterial changes—including CONTU’s proposed

18 See Gustafson v. oie Co., —— U.S. ——, 115 S. Ct. 1061,

1072 (1995) (“If legislative history is to be consulted, it is prefer-

able to consult the documents prepared by Congress when delib-

erating.” ).

definition of “computer program.” '* Pub. L. No. 96-517,

94 Stat. 3015, 3028 (1980).

Under the First Circuit’s construction of Section 102(b),

however, it is questionable whether any protection re-

mains for computer programs.’ Notwithstanding — the

court of appeals’ unpersuasive attempt to limit the reach

of its holding," its interpretation of Section 102(b) con-

flicts directly with Congress’ intent that computer pro-

grams be protected by copyright.

"As this brief chronology demonstrates, copyright protection

for computer programs is neither an historical accident, nor an

impulsive act that received little attention by the legislators. Copy-

right protection for computer programs is the result of decades

of open debate and careful consideration.

15 See supra, p. 3.

16 The First Circuit’s attempt to limit its holding by distinguish-

ing “computer code” from the Lotus menu command hierarchy is

based on flawed and unpersuasive reasoning. The court stated that

the menu command hierarchy of Lotus 1-2-3 was a method of

operation because “|w|ithout the menu command hierarchy, users

would not be able to access and control, or indeed make use of,

Lotus 1-2-3's functional capabilities.” 49 F.3d at 815 (emphasis

supplied). On the other hand, the code of Lotus 1-2-3 is not a

method of operation because, in order for a competing program

“to offer the same capabilities as Lotus 1-2-3 |a competitor does

not} have to copy Lotus’ underlying code... .” Jd. at 816 (em-

phasis supplied). The court asked a different question regarding

the menu command hierarchy (whether it was needed to operate a

particular program—Lotus 1-2-3) than it asked regarding code

(whether the particular code was needed to offer the same capabili-

ties as Lotus 1-2-3). Had it applied to the user interface the same

standard it applied to the code, the Court of Appeals would have

found the menu command hierarchy copyrightable, since a pro-

gram offering the same capabilities as Lotus 1-2-3 could have a

different menu command hierarchy, as the district court found.

By the same token, had it applied to the program code the same

standard it applied to the user interface, it would have recognized

the flaw in its reasoning. The code of Lotus 1-2-3 is necessary to

operate Lotus 1-2-3, us the code of any program is necessary to

operate that particular program, making the code—under the First

Circuit’s reasoning—an unprotectible method of operation.

. a

The phrase “method of operation” is not defined in

the Copyright Act. The court below, presumably adopt-

ing what it viewed as the common use of those words, 49

F.3d at 821 (Boudin, J., concurring), constructed a defi-

nition similar to that adopted by Congress for a “com-

puter program” in Section 101. On its face, that con-

struction must be wrong. It cannot be presumed that

Congress intended to adopt for uncopyrightable matter a

definition that has essentially the same meaning as the

statutory definition of a protectible work of authorship—

namely, a computer program."

But even assuming that the First Circuit’s definition

were defensible, that would not be dispositive of the ques-

tion whether the manner in which a “method of operation”

is expressed is copyrightable. Nothing in Section 102(b)

States or even suggests that expression that is separable

from (i.e., is not merged with) a “method of operation”

is uncopyrightable. Separating a method of operation

from expression is analytically no different from separat-

ing ideas (another category listed in Section 102(b))

from expression."*

The First Circuit not only failed to consider the whole

Statute, but even failed to consider the whole subsection.

7 See 1 Nimmer, at § 2.03[E]; Jane C. Ginsburg, Four Reasons

and a Paradox: The Manifest Superiority of Copyright over Sui

Generis Protection of Computer Software, 94 Colum. L. Rev. 2559,

2570 (1994) (“[S]ince we know that Congress did determine in

1980 to protect computer programs, the terms ‘process,’ ‘system,’

or ‘method of operation’ must not be understood literally.” (foot-

note omitted) ).

'* The fallacy of the First Circuit's construction is illustrated by

substituting “idea” for “method of operation.” “Idea” can be

defined as “a formulated thought or opinion.” Webster's Ninth

New Collegiate Dictionary 597 (1987). Therefore (following the

First Circuit's logic) any element of a work that fits that defini-

tion is unprotectible, no matter how expressed. That interpretation

would, of course, disqualify most writings from copyright protec-

tion.

Section 102(b) denies protection to “any idea, procedure,

process, system, method of operation, concept, principle,

or discovery ... .” i7 U.S.C. § 102(b). The presence

of “idea” at the head of this list of unprotectible matter

itself strongly suggests that Congress intended Section

102(b) to restate the “idea expression” dichotomy, first

enunciated by the Court in Baker v. Selden, 101 US.

99 (1879).'’ Absent merger (another principle that owes

its origin to Baker), the idea expression dichotomy does

not deny protection to expression_in a work.” The same

is true of each of the other items listed in Section 1G2(b).

Again, the legislative history of the Copyright Act con-

firms this reading:

Section 102(b) is intended, among other things,

to make clear chat the expression adopted by the

programmer is the copyrightable element in a com-

puter program, and that the actual processes or

methods embodied in the program are not within

the scope of the copyright law.

Section 102(b) in no way enlarges or contracts the

scope of copyright protection under the present law.

Its purpose is to restate, in the context of the new

single Federal system of copyright, that the basic

dichotomy between expression and idea remains

unchanged.

1° The final phrase of Section 102(b) (“regardless of the form in

which it is described, explained, illustrated, or embodied in such

work”) also supports the interpretation of that provision as a

statement of the idea/expression dichotomy. The statutory lan-

guage clearly contemplates that ideas, procedures, processes and

the like are separable from the form in which they are “described,

explained, illustrated, or embodied ... .” Thus a dichotomy exists

between the unprotectible matter and its “form” or expression.

2 See Arthur R. Miller, Copyright Protection for Computer

Programs, Databases, and Computer Generated Works: Is Any-

thing New Since CONTU?, 106 Harv. L. Rev. 977, 986 (1993)

(“Since Baker, courts have reaffirmed repeatedly that functionality

poses no per se bar to copyrightability.”) (the author was a mem-

ber of CONTU who served on its software subcommittee).

nt i et. el i PO

Nee ee ns Bieta sm

nent mae

es a eS

ee ee ee

House Report, at 57, 1976 U.S.C.C.A.N. at 5670. See

also id. at 54, 1976 U.S.C.C.A.N. at 5667 (computer

programs are protectible under Section 102(a)(1) “to

the extent that they incorporate authorship in the pro-

grammer’s expression . . . as distinguished from the ideas

themselves.” ).

Implementing Congress’ express statement in the legis-

lative history of the Copyright Act, courts of appeals

have universally found Section 102(b) to be a restate-

ment of the idea expression dichotomy. See, e.g., CCC

Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc.,

44 F.3d 61, 69 & n.12 (2d Cir. 1994), petition for cert.

filed, 63 U.S.L.W. 3892 (U.S. June 7, 1995): Whelan

Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222,

1234 (3d Cir. 1986), cert. denied, 479 US. 1031

(1987); M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d

421, 434 (4th Cir. 1986); Kepner-Tregoe, Inc. v. Leader-

ship Software, Inc., 12 F.3d 527, 533 & n.8& (Sth Cir.),

cert. denied, US. . 11S S. Ct. 82 (1994);

Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F.2d

274, 277 (6th Cir. 1988); Toro Co. v. R & R Prods.

Co., 787 F.2d 1208, 1211-12 (8th Cir. 1986); Apple

Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443

& n.11 (9th Cir. 1994); Autoskill Inc. v. National Educ.

Support Sys., Inc., 994 F.2d 1476, 1495 (10th Cir.

1993); Cable Home Communication Corp. v. Network

Prods., Inc., 902 F.2d 829, 842-43 (11th Cir. 1990).

See also, Atari, Inc. v. North American Philips Consumer

Elecs. Corp., 672 F.2d 607, 615 (7th Cir.) (“The Copy-

right Act of 1976 codifies this idea-expression dichotomy.

en §$ 102(b)”), cert. denied, 459 U.S. 880

B. Denying Protection to Expression in Computer

Programs Erodes Severely the Incentives Congress

Enacted for Their Authors

The Constitution grants Congress the power “To Pro-

mote the Progress of Science and useful Arts, by securing

for limited Times to Authors and Inventors the exclusive

Right to their respective Writings and Discoveries,” U.S.

Const., art. I, § 8, cl. 8. It thus establishes both the un-

derlying goal of copyright law (to promote the progress

of science (knowledge)) and the mechanism for achiev-

ing that goal (granting authors exclusive rights for a lim-

ited period of time).

The Court has confirmed that the public good is served

by providing authors with these exclusive rights as an in-

centive to create works of authorship:

The economic philosophy behind the clause empow-

ering Congress to grant patents and copyrights is

the conviction that encouragement of individual

effort by personal gain is the best way to advance

public welfare through the talents of authors and

inventors in “Science and useful Arts.” Sacrificial

days devoted to such creative activities deserve re-

wards, commensurate with the services rendered.

Mazer v. Stein, 347 U.S. 201, 219 (1954).

The computer software industry relies on these incen-

tives, and they have caused the industry to flourish and

grow. Any fundamental alteration in the balance of these

incentives, as a the decision below, will have a substan-

tial and detrimental effect on the industry.

Software development (including user interface de-

sign)*' requires a substantial investment in creative ex-

pression—the very creativity that the cconomic incentives

in the Copyright Act are designed to protect and nurture.

Eliminating copyright protection for programs or expres-

sive elements of programs undermines those incentives to

innovate.” Even casting substantial doubt on the avail-

*! As the most visible element «£ a computer program, the user

interface is also the most eas:'y }).eiarized. Excluding this im-

portant programming element ¢tim ,.vtection will inevitably lead

to more unauthorized copying.

*2In Apple Computer, Inc. v. Formula Int'l, Inc., 562 F. Supp.

775, 783 (C.D. Cal. 1983), aff'd, 725 F.2d 521 (9th Cir. 1984), the

ee ee

19 ,

ability and extent of such protection stifles progress and

creativity, and disserves the goals of the Copyright Act.”

C. The First Circuit’s Construction of Section 102(b)

Is Such a Significant Departure From That of the

Overwhelming Majority of Courts of Appeals and

District Courts as to Call for an Exercise of This

Court’s Power of Supervision

The First Circuit's approach to Section 102(b) of the

aly. The Court of Appeals, considering itself to be “navi-

gating in uncharted waters,” 49 F.3d at 813, weighed

anchor and set itself adrift doctrinally. The court failed

to follow the course that Congress charted for the judi-

ciary in the Copyright Act and its legislative history. It

ignored the overwhelming number of other courts that

have recognized Section 102(b) as a restatement of the

idea expression dichotomy. And in so doing it reached

court observed: “Few companies are going to invest the time and

resources to develop new programs if their products can be freely

duplicated by anyone. Such ‘competitors,’ who could undersell the

originator simply because they don’t have its development costs,

would destroy the market which any innovator needs to recoup his

investment.”

*8 This is so despite the First Circuit’s mistaken belief that its

holding would foster progress in the sofeware development indus-

try. 49 F.3d at 817-18. The First Circuit was obliged to abide by

the balance struck by Congress in establishing the scheme of in-

centives for authors. This Court’s admonition to another court

of appeals is appropriate in this instance as well:

We agree with the Court of Appeals that copyright is intended

to increase and not impede the harvest of knowledge. But we

believe the Second Circuit gave insufficient deference to the

scheme established by the Copyright Act for fostering the

original works that provide the seed and substance of this

harvest. The rights conferred by copyright are designed to

assure contributors to the store of knowledge a fair return for

their labors.

Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 545-46

(1985) (citation omitted).

erroneous conclusions that subvert the goals of the Copy-

right Act and jeopardize the ability of a critical industry

to continue its significant contributions to our nation’s

economy. -

The issues raised in this case are as ubiquitous as they

are important. The question of copyrightability arises in

all copyright infringement cases, and is central to many.

The substantial degree to which the First Circuit has lost

its way in this case calls for an exercise of the Court's

power of supervision over the federal judiciary. Cf.

Florida v. Rodriguez, 469 U.S. 1, 7 (1984) (Stevens, J.,

dissenting) (“As the Court of last resort in the federal

system, we have supervisory authority and therefore must

occasionally perform a pure error-correcting function in

federal litigation.” ).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MORTON DAVID GOLDBERG

GARY L. GRISWOLD

HERBERT C. WAMSLEY *

INTELLECTUAL PROPERTY

OWNERS

1255 Twenty-Third Street, N.W.

Suite 850

Washington, D.C. 20037

(202) 466-2396

Attorneys for Amicus Curiae

July 7, 1995 * Counsel of Record

APPENDIX

MEMBERS OF BOARD OF DIRECTORS OF

INTELLECTUAL PROPERTY OWNERS *

Robert L. Andersen

FMC Corporation

Norman L. Balmer

Union Carbide Corporation

Erwin F. Berrier, Jr.

General Electric Company

W. Dexter Brooks

Coca-Cola Company

James L. Fergason

Optical Shields, Inc.

Michael W. Glynn

Ciba

Stephen S. Grace

Dow Chemical Company

Gary L. Griswold

Robert P. Hayter

United Technologies Corp.

Edward P. Heller, II

Seagate Technology, Inc.

Wayne C. Jaeschke

Henkel Corporation

Geoffrey M. Karny

Genetic Therapy, Inc.

John J. Klocko, IIT

E.1. DuPont de Nemours

& Co.

William E. Lambert, III

Rohm & Haas Company

Edward T. Lentz

SmithKline Beecham

Corporation

William F. Marsh

Air Products & Chemicals,

Inc.

Roger L. May

Ford Mot. » Company

John ?. McDonnell

AT&T

Alexander J. McKillop

Mobil Oil Corporation

Robert E. Muir

Caterpillar Inc.

Lita Nelsen

Massachusetts Institute of

Technology

Wallace L. Oliver

Amoco Corporation

Garo A. Partoyan

Mars Incorporated

Harold R. Patton

Medtronic, Inc.

Jacobus C. Rasser

Procter & Gamble

*IPO procedures require approval of positions in briefs by a

three-fourths majority of directors present and voting.

Peter C. Richardson

Pfizer, Inc.

Allen W. Richmond

Phillips Petroleum Company

Melvin J. Scolnick

Pitney Bowes Inc.

Victor Siber

IBM Corporation

Roger S. Smith

Morgan & Finnegan

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.