Software Owner Wins 'Look and Feel' Victory

Jane Fitz Simon
The Boston Globe

March 14, 1989

WEST SPRINGFIELD - "Kill." That is what a shocked and angry Thomas Charkiewicz wanted to do the first time he saw a demonstration of a software program he immediately branded a blatant ripoff of his own.

Certain screen displays of the rival computer program were virtually identical to Charkiewicz's "Costimator" cost-estimating software for the manufacture of parts.

"I couldn't believe how close they came to copying our program," he recalls. "Even our misspelled words!"

Charkiewicz, president of Manufacturers Technologies Inc. of West Springfield, was furious to think someone could copy his work and then turn around and undercut his price.

He thought it criminal that an imitator was reaping the benefit of his investments in research and development and marketing, not to mention his 24 years of hands-on experience, working for companies such as Pratt & Whitney and Package Machinery before launching his own business in 1983.

The ruddy, strong-willed entrepreneur resisted the urge to murder and called a lawyer, instead. His lawyers were encouraged by software protection vigilantes IBM Corp. and Lotus Development Corp. of Cambridge. The battle went to court.

The result: a landmark decision based on the "look and feel" of software that is expected to figure prominently in pending software protection cases across the country.

In a 48-page decison hailed by proponents of get-tough software copyright protection as among the most

lucid and up-to-date yet in the slowly evolving case law, a Connecticut judge ruled in Charkiewicz's favor.

US District Judge T. F. Gilroy Daly found that Charkiewicz was robbed of his unique expression of an idea. He ordered off the market the rival software, sold as Rapid Cost 1, 2 and 3 by CAMS Inc. of Plantsville, Conn.; and Quick Cost versions III, V and X by Chempro Data Sciences Corp. of Westfield.

What makes Daly's ruling significant and potentially far-reaching, supporters say, is that he based his decision solely on what is referred to loosely in the industry as the look and feel of software: how it appears to and is acted upon by the user.

No consideration was given to the underlying computer code, the one element of software where there exists near-universal agreement that copyright protection extends.

Judge Daly found abundant reason to question the defendants' credibility. The principals of CAMS and Chempro once sold Charkiewicz's software as independent sales representatives.

Barring a successful appeal, Daly's decision is to be published by the court, making it widely available for citation in future software copyright infringement cases.

Daly issued his decision Jan. 31, but the victors waited until March 3 to publicize their win. They feared a deep-pocketed sympathizer on the other side might fund a challenge, and waited for the 30-day appeal period to pass.

They were unaware that the court on the final day of the appeal period granted the defendants' request for a 30-day extension. The defendants stated they plan to appeal only if damages are assessed and will not seek to reverse the judge's decision.

Edward D. Cormier, president of CAMS and the only defendant who could be reached for comment, staunchly maintains he is innocent. "We never copied," he says. "We have a difference of opinion with the decision the judge made."

Legal experts say the Daly decision could figure prominently in pending copyright infringement lawsuits that hinge on the look-and-feel aspects of copyright protection, including a case involving Lotus Development.

In an aggressive move in 1987 that stunned and angered free spirits in the software industry, Lotus sued Mosaic Software Inc. of Cambridge and Paperback Software Inc. of Torrance, Calif. Lotus charges its competitors illegally copied elements of Lotus' best-selling 1-2-3 electronic spreadsheet, including words in menus and the organization and sequencing of menus.

Henry B. Gutman, the New York lawyer who represents Lotus, believes Daly's decision affirms the propriety of Lotus's claims. "This is a case we consider to be very helpful and one I am sure we will cite to the court," says Gutman.

In fact, the ruling is thought to be so beneficial to Lotus that a trade magazine called Charkiewicz asking if there was any truth to the rumor that Lotus helped finance the litigation.

Neither Lotus nor IBM helped pay Charkiewicz's legal expenses, but they did provide names of expert witnesses and offered to help with mock trials, says Donald S. Holland, of Longmeadow, who with Malcolm J. Chisholm Jr. handled Charkiewicz's case. While no mock trials were held, Holland says, he did use at least one expert suggested by the companies.

Lotus, IBM and other staunch advocates of copyright protection for intellectual property stand to lose or gain ground whenever a case of this nature is decided. In Lotus's case, millions of dollars hang in the balance as it seeks to banish "clones" of its best-selling 1-2-3 software.

Paul Gupta, who represents defendant Paperback Software in the Lotus case, downplayed the Daly decision, proclaiming it to be "on the whole, helpful" to his client. "In my view, a number of the elements Lotus is complaining about were found by the judge to not merit copyright protection," Gupta says.

Other heavyweight look-and-feel cases pending include Apple Computer Co.'s suits against Microsoft Corp. and Hewlett-Packard Co.; and Ashton-Tate Corp.'s action against Fox Software Inc. and Santa Cruz Operation Inc.

Lawyers for defendant Fox Software plan to base their defense on the fact that the author of the allegedly infringing software did not have access to the source code of Ashton-Tate's database software. "The real copyright is in the code," they say.

Not according to Judge Daly's view of look and feel -- and that is good news for Ashton-Tate. "It is quite applicable to our case," says Ashton-Tate's general counsel, Stanley Witkow, of the Daly decision. "Our case argues that the sequence and flow of screen displays is protectable, and this case specifically confirms that argument."

Don Holland, Manufacturers Technologies' ambitious young lawyer, who is clearly reveling in his attention-getting victory, predicts the decision will have wide impact.

"It's going to prevent software clones, where the programmers don't originate on their own, but copy enough of an existing program to confuse the public," Holland says, adding: "This should put companies on notice."

Not all software developers will welcome the ruling. Opinion is deeply divided on the subject of copyright protection.

"We don't want courts setting de facto software standards," says Michael D. Kinkead, president of the Massachussetts Computer Software Council. "We want standards to be set in the marketplace."

Many software developers see copyright protection as harmful to innovation. They believe the marketplace should be the only judge of which products live or die, based on the products' merits. While few advocate allowing copying computer code, they see no reason why someone should not be allowed to improve upon, say, Lotus 1-2-3, by writing faster code.

But Charkiewicz and others argue against that view, saying it fails to compensate program originators for their R&D and marketing expenditures. Lack of protection is what will hurt innovation, they maintain.

Daniel Bricklin, co-creator of VisiCalc, the first electronic spreadsheet, sees a gray area in software copyright protection comparable to what might exist if a wine were copyrighted. Although he does not think judges are qualified as software connoisseurs, he concedes he has no ready alternatives.

"I am not looking at certain products because I don't want to be accused later of having copied them," says Bricklin, who operates a small firm in Newton called Software Garden.

The Manufacturers Technologies decision is the first to be handed down since the US Copyright Office last summer clarified its stand on the rules for registering software.

Beseiged by inquiries after a decision in a 1987 copyright case involving Digital Equipment Corp., in which a district court in Georgia ruled that software screen displays and their underlying computer code require separate copyright registrations, the Copyright Office issued a statement last June saying only a single registration is needed.

Beyond specifically applying the Copyright Office's ruling, the Manufacturers Technologies decision provides a detailed analysis of what is protectible expression in software, say lawyers familiar with it.

The defendants in the case had argued that the screen displays at issue, part of a sequence that estimates the cost to manufacture a part, were dictated by functional considerations. They maintained that the displays were uncopyrightable forms, necessary to express an idea which conveyed no information. They further argued that the plaintiff's screens were not original.

The judge determined otherwise. He found that the flow of the plaintiffs' screen displays reflects the plaintiffs' "creative manner of expressing how the process of cost-estimating should be accomplished." He ruled that the sequencing and flow of the screens in the sequence constituted a copyrightable expression, and that there was "illicit copying of the plaintiffs' work." Daly branded the infringement "willful" because it was perpetrated with the defendants' knowledge.

The win was a sweet victory for Tom Charkiewicz, an engineer turned entrepreneur whose small company has 15 employees and $2 million in sales. A self-avowed fighter who admits to having a wide stubborn streak, Charkiewicz pursued his courtroom battle at considerable expense -- an estimated $250,000 -- and against the advice of many who told him litigation does not pay and the place to do battle is in the market.

Charkiewicz's lawyers plan to seek up to $3 million in damages, but they concede there is little likelihood of recovery.

Copyright 1989