## Facts

- Lotus developed the spreadsheet program Lotus 1-2-3, which used a “menu command hierarchy” (a menu tree) of 469 textual commands that users selected to perform functions.
- Lotus 1-2-3 also permitted users to create macros—automated sequences of menu commands executed by a single keystroke—dependent on the menu hierarchy.
- Borland developed competing spreadsheet programs (Quattro and Quattro Pro) and included a menu command hierarchy virtually identical to Lotus 1-2-3’s hierarchy.
- Borland did not copy Lotus’s source code; it copied the structure and wording of the menus to reduce retraining for Lotus users and to preserve compatibility with existing Lotus macros.
- The district court held the Lotus menu hierarchy was copyrightable expression and found Borland liable for infringement.
- The First Circuit reversed, holding the menu hierarchy was an uncopyrightable “method of operation” under 17 U.S.C. § 102(b).
- The Supreme Court affirmed the First Circuit by an equally divided Court; no majority opinion issued and one Justice did not participate.

## Issues

1. Whether a software menu command hierarchy used to operate a program is protectable expression or an uncopyrightable “method of operation” under 17 U.S.C. § 102(b).
2. Whether copying such a menu hierarchy, without copying source code, constitutes copyright infringement.
3. What legal effect follows from a Supreme Court affirmance by an equally divided Court.

## Decision

- The Supreme Court affirmed the First Circuit’s judgment by an equally divided Court.
- As a result, the First Circuit’s reversal of the infringement judgment remained effective for the parties.
- Because the Supreme Court divided evenly, its disposition created no precedential rule beyond leaving the lower-court judgment in place.

## Legal Principles

- Under 17 U.S.C. § 102(b), copyright protection does not extend to “any idea, procedure, process, system, [or] method of operation,” even if embodied in a copyrighted work.
- A user interface element that functions as the means by which users control and operate a program can be treated as a “method of operation” and thus outside copyright protection.
- If the copied material is uncopyrightable subject matter, verbatim copying of that material does not establish infringement.
- An affirmance by an equally divided Supreme Court leaves the lower court judgment intact but carries no precedential force as a Supreme Court decision.

## Conclusion

The Supreme Court’s evenly divided affirmance left standing a ruling that a spreadsheet’s menu command hierarchy, as the means by which users operate the program, falls within § 102(b)’s “method of operation” exclusion and therefore is not protected by copyright.


Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996)