Apple v. Microsoft: The End at Last?
By Eric S. Freibrun, Esq.
Is the day finally at hand when we will
be able to view these two words without a "v." separating them? Perhaps, at
least with respect to the $5.5 billion lawsuit filed in 1988 by Apple against Microsoft
and Hewlett-Packard alleging copyright infringement and breach of contract.
On September 19, 1994, a panel of judges
in the 9th Circuit U.S. Court of Appeals upheld by a 3-0 vote a Federal District
Court’s 1992 ruling that Microsoft’s Windows and Hewlett-Packard’s NewWave
screen displays (or graphical user interfaces) did not violate Apple’s copyrights in
its Macintosh screen display.
The suit arose from a 1985 license
agreement between Apple and Microsoft. Apple had objected to Microsoft’s release of
Windows 1.0. The two companies struck a deal whereby Microsoft could continue marketing
Windows 1.0 and all derivative versions. Microsoft was also permitted to sublicense these
rights, and did so, to Hewlett-Packard. In return, Apple was granted rights to use certain
Microsoft products and Microsoft agreed to delay a single IBM-compatible product.
The legal fighting began as a result of
Apple’s contention that Microsoft and Hewlett-Packard copied more of the Macintosh
display than the original license agreement permitted.
In 1992, after painstaking hearings, the
District Court ruled that over 90 percent of Windows and two-thirds of NewWave were within
the scope of the original 1985 license agreement. The court then examined to what extent
copyright law protected aspects of the Mac display not permitted to be copied by the
license agreement. It concluded that the remaining elements, such as various icons, were
primarily graphical symbols representing generic ideas or purely functional components of
the program, or were insufficiently original to merit copyright protection.
Copyright law essentially protects the
original expression of ideas in tangible form, such as books, artwork, music and computer
software, from unauthorized copying, distribution or modification. It does not apply to
ideas. While it is well-settled that copyright protections extend to computer software,
the extent to which copyright law protects screen displays has been the subject of much
litigation, with many courts reaching varied results.
In the Apple case, the District Court had
ruled that the usual test for determining whether copyright infringement had occurred did
not apply to functional or generic elements of a screen display. Typically, a plaintiff in
a copyright infringement lawsuit must show that the alleged infringing "copy" is
"substantially similar" to the original work. But here, the Court refused to
apply this standard. Instead, it said Apple must prove the allegedly infringing elements
of Windows and NewWave were "virtually identical" to the allegedly copied
elements of the Mac display -- a much higher standard.
One element of the Macintosh interface
claimed to be infringed was the familiar wastebasket icon used to depict the destruction
or deletion of a file. The Court concluded that it was not protected by copyright law
because it illustrated a predominantly functional element of the program -- deleting a
file -- and there are only a limited number of ways to graphically illustrate this
function. The Court concluded that because individual elements of the Macintosh program
could be legally copied, Apple would have to demonstrate that the overall appearances of
Windows and NewWave, taken as a whole, were virtually identical to the Macintosh display
in order to prove infringement.
Apple refused to go to trial with this
higher burden of proof and appealed the ruling to the Appellate Court. The Appellate Court
held that the District Court had used the proper standard.
Apple’s options now include seeking
further review from a larger appellate panel or the Supreme Court, which could refuse to
hear the case.
The entire saga has been costly for Apple
and could get worse: the Appellate Court ordered the District Court to reconsider its
rejection of Microsoft’s and Hewlett-Packard’s request for reimbursement of its
attorneys’ fees, estimated at several million dollars. As a further bite out of
Apple, the Appellate Court agreed with the District Court that the 1985 license agreement
permitted Microsoft to make future products that resemble Macintosh even more closely than
the original Windows 1.0.
Attorney Eric Freibrun specializes in
Computer law and Intellectual Property protection, providing legal services to information
technology vendors and users. Tel.: 847-562-0099; Fax: 847-562-0033; E-mail: eric@freibrun.com.
Copyright © Eric S. Freibrun, Esq., Law Offices of Eric S. Freibrun, Ltd. All rights
reserved.
