Makers of Software Clones Are Mourning Deletion From Copyright Ruling

'Uncopyrightable' Is Unmellifluos, But Word Has Fans

Makers of Software Clones Are Mourning Deletion From Copyright Ruling

By Bob Davis
The Wall Street Journal

June 13, 1988

WASHINGTON -- Did something unconscionable happen to the word "uncopyrightable"?

Last Monday, the Copyright Office, in a decision generally favorable to big software publishers, ruled that software copyrights protect displays on computer screens from infringement. But software clone makers took heart from one sentence that called "menu screens" -- the main display that clone makers usually copy -- "uncopyrightable."

On Friday, however, when the ruling was published in the Federal Register, the word "uncopyrightable" had disappeared. Clone-makers suspected foul play.

Ralph Oman, the head of the Copyright Office, said the decision to delete the word was made innocently enough. On Monday, he said, he and his top aides were at a resort in the Pocono Mountains, where he announced the ruling at a meeting of the Copyright Society. They didn't have time to peruse the final wording of the ruling, he said, which was handed out to reporters in Washington.

William Patry, Mr. Oman's aide, said he noticed the offending word Wednesday, and at a meeting that day persuaded Copyright Office lawyers to delete it in the Federal Register. "No one in the private industry would interfere," Mr. Patry said. "It's not done."

Dorothy Schrader, the Copyright Office's general counsel, said "uncopyrightable" -- aside from being a mouthful -- was "overbroad" and could give the false impression that menus weren't ever worthy of copyright protection. She noted that the Copyright Office previously copyrighted certain of Apple Computer Inc.'s jazzy Macintosh display screens, which might be considered menus. "There may be certain menu screens so elaborate in terms of text that they may be copyrightable, too," she added.

But the Copyright Office, an arm of the Library of Congress, may have acted too late to change its mind. The Monday ruling was signed by Mr. Oman and William Welsh, acting librarian of Congress on June 3, three days before it was released. So the wording of the ruling, rather than the wording of the Federal Register, may be decisive. A federal court may have to make the final call.

Added Thomas Hemnes, an attorney for Mosaic Software Inc., a Cambridge, Mass., company that's accused of infringing on Lotus Development Corp.'s 1-2-3 software: "I'm investigating the reasons and the significance for the omission of the word."