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United States Court of Appeals,Ninth GUI, Apple complained. As a result, the two
Circuit. agreed to a license giving Microsoft the
APPLE COMPUTER, INC., a California right to use and sublicense derivative works
corporation, Plaintiff-Appellee, generated by Windows 1.0 in present and
v. future products. Microsoft released
MICROSOFT CORPORATION, a Delaware Windows 2.03 and later, Windows 3.0; its
corporation, Defendant-Appellant. licensee, Hewlett-Packard Company (HP),
APPLE COMPUTER, INC., a California introduced NewWave 1.0 and later,
corporation, Plaintiff-Appellee, NewWave 3.0, which run in conjunction
v. with Windows to make IBM-compatible
MICROSOFT CORPORATION, a Delaware computers easier to use. Apple believed that
corporation, Defendant, these versions exceed the license, make
andHewlett-Packard Co., Defendant- Windows more “Mac-like,” and infringe its
Appellant. copyright. This action followed.
APPLE COMPUTER, INC., Plaintiff-
Appellant, FN1. The Macintosh Finder is
v. registered as a derivative work of the
MICROSOFT CORPORATION, a Delaware Lisa Desktop. Although the district
corporation; Hewlett-Packard Co., a court dismissed the Finder as a work
California corporation, Defendants- in suit, the Macintosh interface has
Appellees. been referred to interchangeably with
Nos. 93-16867, 93-16869 and 93-16883. the Lisa during the course of this
litigation.
Argued and Submitted July 11, 1994.
Decided Sept. 19, 1994. In a series of published rulings,FN2 the district
court construed the agreement to license
visual displays in the Windows 1.0 interface,
Appeals from the United States District not the interface itself; determined that all
Court for the Northern District of California. visual displays in Windows 2.03 and 3.0
were in Windows 1.0 except for the use of
Before: FERNANDEZ, RYMER, and T.G. overlapping windows FN3 and some changes
NELSON, Circuit Judges. in the appearance and manipulation of icons;
dissected the Macintosh, Windows and
RYMER, Circuit Judge: NewWave interfaces based on a list of
Lisa and Macintosh are Apple computers. similarities submitted by Apple to decide
Each has a graphical user interface (“GUI”) which are protectable; and applied the
which Apple Computer, Inc. registered for limiting doctrines of originality,
copyright as an audiovisual work. Both functionality, standardization, scenes a faire
GUIs were developed as a user-friendly way and merger to find no copying of protectable
for ordinary mortals to communicate with elements in Windows 2.03 or 3.0, and to
the Apple computer; the Lisa Desktop and limit the scope of copyright protection to a
the Macintosh Finder FN1 are based on a handful of individual elements in
desktop metaphor with windows, icons and NewWave.FN4 The court then held that those
pull-down menus which can be manipulated elements in NewWave would be compared
on the screen with a hand-held device called with their equivalent Apple elements for
a mouse. When Microsoft Corporation substantial similarity, and that the NewWave
released Windows 1.0, having a similar and Windows 2.03 and 3.0 works as a whole
would be compared with Apple's works for FN4. These items relate to the
virtual identity. When Apple declined to “zooming rectangle” animation
oppose motions for summary judgment of associated with the opening or
noninfringement for lack of virtual identity, closing of an icon into a window, the
however, judgments in favor of Microsoft “dimming” of a folder icon that has
and HP were entered. been opened into a window, and the
use of a trash can icon to depict the
FN2.Apple Computer, Inc. v. discard function. Each appears in
Microsoft Corp., 709 F.Supp. 925 both versions 1.0 and 3.0 of
(N.D.Cal.1989)(Apple I); Apple NewWave, but none is in any version
Computer, Inc. v. Microsoft Corp., of Windows.
717 F.Supp. 1428
(N.D.Cal.1989)(Apple II); Apple Apple asks us to reverse because of two
Computer, Inc. v. Microsoft Corp., fundamental errors in the district court's
759 F.Supp. 1444 reasoning.FN5 First, Apple argues that the
(N.D.Cal.1991)(Apple III); Apple court should not have allowed the license
Computer, Inc. v. Microsoft Corp., for Windows 1.0 to serve as a partial
779 F.Supp. 133 defense. Second, Apple contends that the
(N.D.Cal.1991)(Apple IV); Apple court went astray by dissecting Apple's
Computer, Inc. v. Microsoft Corp., works so as to eliminate unprotectable and
799 F.Supp. 1006 licensed elements from comparison with
(N.D.Cal.1992)(Apple V); Apple Windows 2.03, 3.0 and NewWave as a
Computer, Inc. v. Microsoft Corp., whole, incorrectly leading it to adopt a
821 F.Supp. 616 standard of virtual identity instead of
(N.D.Cal.1993)(Apple VI). The first substantial similarity. We disagree.
two published opinions were
rendered by Hon. William S. FN5. Although it does not concede
Schwarzer; after his appointment as that limiting doctrines were correctly
Director of the Federal Judicial applied to each alleged similarity,
Center, this matter was reassigned to Apple does not ask us to review the
the calendar of Hon. Vaughn R. many discrete decisions reflected in
Walker. the district court's published
opinions. We have done so only to
Our treatment of facts throughout the extent of being satisfied that none
is truncated because the district makes a difference to the outcome,
court's is so extensive. because we agree that the appeal
turns on whether the district court's
FN3. Windows 1.0 had a tiled approach was correct.
windowing system in which the
windows were connected together in The district court's approach was on target.
a fixed pattern such that all open In so holding, we readily acknowledge how
windows were simultaneously much more complex and difficult its task
visible. An overlapping system was than ours. The district court had to
allows windows to be stacked on top grapple with graphical user interfaces in the
of one another and moved around the first instance-and for the first time, with a
screen individually. claim of copying a computer program's
artistic look as an audiovisual work instead
Page 3
[2][3] Apple raises one additional point, [4] Apple makes a number of related
however, which we address here because arguments challenging the district court's
Apple treats it as connected to its motion. copyright analysis. It contends that the
The argument is that even if the 1985 district court deprived its works of
Agreement does confer a partial license to meaningful protection by dissecting them
use visual displays, Microsoft and HP into individual elements and viewing each
exceeded its scope and therefore infringed element in isolation. Because the Macintosh
Apple's copyrights. See, e.g., S.O.S., Inc. v. GUI is a dynamic audiovisual work, Apple
Payday, Inc., 886 F.2d 1081, 1087 (9th argues that the “total concept and feel” of its
Cir.1989) (“A licensee infringes the owner's works-that is, the selection and arrangement
copyright if its use exceeds the scope of its of related images and their animation-must
license.”). The cases on which Apple relies, be compared with that of the Windows and
however, merely establish that the breach of NewWave GUIs for substantial similarity.
a prohibition in the license agreement can Apple further asserts that in this case, the
lead to a finding of infringement. See, e.g., court had no occasion to dissect its works
id. at 1088-89 (license granted only right to into discrete elements because Microsoft
use copyrighted computer program; licensee and HP virtually mimicked the composition,
exceeded scope of license by preparing organization, arrangement and dynamics of
Page 7
cannot be protected; otherwise, the first to without using space on the screen, or objects
come up with an idea will corner the market. that open and close.
Herbert Rosenthal Jewelry Corp. v.
Kalpakian, 446 F.2d 738, 742 (9th [9] Well-recognized precepts guide the
Cir.1971). Apple cannot get patent-like process of analytic dissection. First, when an
protection for the idea of a graphical user idea and its expression are indistinguishable,
interface, or the idea of a desktop metaphor or “merged,” the expression will only be
which concededly came from Xerox. It can, protected against nearly identical copying.
and did, put those ideas together creatively Krofft, 562 F.2d at 1167-68; Kalpakian,
with animation, overlapping windows, and 446 F.2d at 742. For example, in this case,
well-designed icons; but it licensed the the idea of an icon in a desktop metaphor
visual displays which resulted. representing a document stored in a
computer program can only be expressed in
FN11.17 U.S.C. § 102(b) codifies so many ways. An iconic image shaped like
this principle, denying copyright a page is an obvious choice.
protection “to any idea, procedure,
process, system, method of [10] The doctrine of scenes a faire is closely
operation, concept, principle, or related. As we explained in Frybarger v.
discovery.” International Business Machines Corp., 812
F.2d 525 (9th Cir.1987), when similar
[8] The district court found that there are features in a videogame are “ ‘as a practical
five other basic ideas embodied in the matter indispensable, or at least standard, in
desktop metaphor: use of windows to the treatment of a given [idea],’ ” they are
display multiple images on the computer treated like ideas and are therefore not
screen and to facilitate user interaction with protected by copyright. Id. at 530 (quoting
the information contained in the windows; Atari, Inc. v. North Am. Philips Consumer
iconic representation of familiar objects Elecs. Corp., 672 F.2d 607, 616 (7th Cir.),
from the office environment; manipulation cert. denied,459 U.S. 880, 103 S.Ct. 176, 74
of icons to convey instructions and to L.Ed.2d 145 (1982)). Furthermore, as
control operation of the computer; use of Frybarger holds, “the mere indispensable
menus to store information or computer expression of these ideas, based on the
functions in a place that is convenient to technical requirements of the videogame
reach, but saves screen space for other medium, may be protected only against
images; and opening and closing of objects virtually identical copying.” Id.; see also
as a means of retrieving, transferring and Data East, 862 F.2d at 209 (visual displays
storing information. Apple V, 799 F.Supp. at of karate match conducted by two
1026. No copyright protection inheres in combatants, one of whom wears red shorts
these ideas. Therefore, substantial similarity and the other white as in the sport, and who
of expression in unlicensed elements cannot use the same moves, are supervised by a
be based on the fact that the Lisa, the Finder, referee and are scored alike as in the sport,
Windows 2.03, 3.0 and NewWave all have are inherent in the sport of karate itself and
windows, icons representing familiar objects as such are unprotectable). In this case, for
from the office environment that describe example, use of overlapping windows
functions being performed and that can be inheres in the idea of windows. A
moved around the screen to tell the programmer has only two options for
computer what to do, menus which give displaying more than one window at a time:
easy access to information or functions either a tiled system, or an overlapping
system. As demonstrated by Microsoft's screen displays because of constraints on
scenes a faire video, overlapping windows viable options available to programmers).
have been the clear preference in graphic For example, hardware constraints limit the
interfaces. Accordingly, protectable number of ways to depict visually the
substantial similarity cannot be based on the movement of a window on the screen;
mere use of overlapping windows, although, because many computers do not have
of course, Apple's particular expression may enough power to show the entire contents of
be protected. the window as it is being moved, the illusion
of movement must be shown by using the
[11] Apple suggests that scenes a faire outline of a window or some similar feature.
should not limit the scope of its audiovisual Design alternatives are further limited by the
copyright, or at least that the interactive GUI's purpose of making interaction
character of GUIs and their functional between the user and the computer more
purpose should not outweigh their artistry. “user-friendly.” These, and similar
While user participation may not negate environmental and ergonomic factors which
copyrightability of an audiovisual work, see, limit the range of possible expression in
e.g., Midway Mfg. Co. v. Artic Int'l, Inc., 704 GUIs, properly inform the scope of
F.2d 1009, 1011-12 (7th Cir.), cert. copyright protection.
denied,464 U.S. 823, 104 S.Ct. 90, 78
L.Ed.2d 98 (1983); Stern Elecs., Inc. v. [12] Originality is another doctrine which
Kaufman, 669 F.2d 852, 856 (2d Cir.1982), limits the scope of protection. As the
the district court did not deny protection to Supreme Court recently made clear,
any aspect of Apple's works on this basis. In protection extends only to those components
any event, unlike purely artistic works such of a work that are original to the author,
as novels and plays, graphical user although original selection and arrangement
interfaces generated by computer programs of otherwise uncopyrightable components
are partly artistic and partly functional. They may be protectable. Feist Publications, Inc.
are a tool to facilitate communication v. Rural Tel. Serv. Co., 499 U.S. 340, 348-
between the user and the computer; GUIs do 51, 111 S.Ct. 1282, 1289-91, 113 L.Ed.2d
graphically what a character-based interface, 358 (1991). Apple's argument that
which requires a user to type in components should not be tested for
alphanumeric commands, does manually. originality because its interface as a whole
Thus, the delete function is engaged by meets the test, see Roth Greeting Cards v.
moving an icon on top of a trash can instead United Card Co., 429 F.2d 1106, 1109 (9th
of hitting a “delete” key. In Apple's GUI, the Cir.1970) (“[T]he originality necessary to
ability to move icons to any part of the support a copyright merely calls for
screen exemplifies an essentially functional independent creation, not novelty.”), is
process, indispensable to the idea of therefore misplaced. Beyond that, Apple
manipulating icons by a mouse. admits that it borrowed heavily from the
iconic treatments in the Xerox Star and an
To the extent that GUIs are artistic, there is IBM Pictureworld research report but
no dispute that creativity in user interfaces is disputes several of the district court's
constrained by the power and speed of the individual determinations. For instance,
computer. See Manufacturers Apple claims that its file folder and page
Technologies, Inc. v. Cams, Inc., 706 F.Supp. icon designs are original. Even if they are,
984, 994-95 (D.Conn.1989) (denying these particular icons add so little to the mix
protection to formatting style of plaintiff's of protectable material that the outcome
Page 11
C.A.9 (Cal.),1994.
Apple Computer, Inc. v. Microsoft Corp.
35 F.3d 1435, 63 USLW 2259, 1994
Copr.L.Dec. P 27,301, 32 U.S.P.Q.2d 1086
END OF DOCUMENT