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The following discussion thread excerpt is from an ongoing law.com online seminar “Copyright Law in the New Millennium” moderated by Robert Clarida of Cowan, Liebowitz & Latman. For information on this program and other law.com seminar offerings, please visit www.law.com/seminars. PANELIST JEFFREY KUESTER, PARTNER, THOMAS, KAYDEN, HORSTEMEYER & RISLEY, ATLANTA Some readers may be wondering whether copyright protection applies to Web sites. While the answer is generally in the affirmative, there are also many aspects of Web sites that are not protectable by copyright. Generally speaking, “look and feel” are no longer protectable under the copyright system, now often being the subject of patent protection. In other words, when a client says, “I want to copyright my Web site so that no one else can copy the idea,” this may be an indication that the client needs to consider patent protection. Likewise, trademark issues will also typically be present in a comprehensive protection program for a Web site. PANELIST HANNAH BENTLEY, FOUNDER, INTERNET LAWYERS GROUP, SAN FRANCISCO Jeffrey Kuester, and other participants, I would be interested in hearing more about the treatment of “look and feel” as ideas rather than protectable expression in the Web site context. Do you have some particular examples in mind? MODERATOR ROBERT CLARIDA, COWAN, LIEBOWITZ & LATMAN, NEW YORK The most direct example I can think of is the Lotus v. Borlandcase from the 1st Circuit, which the Supreme Court let stand (by a 4-4 vote) a few years ago. There, the “look and feel” of the Lotus 1-2-3 spreadsheet program, specifically including the assignment of “hot keys” to perform specific functions, was held to be a “method of operation” and thus not eligible for protection by reason of Section 102(b). Another case was the 11th Circuit’s Mitek v. Arce Engineering, which came to the same conclusion about a program for designing roof trusses for home construction. These were software programs rather than Web sites per se, but I think the same principles would be fully applicable. PANELIST JEFFREY KUESTER The “one click” function of the Amazon Web site was patented, and the copyright law would not likely have provided such broad protection. Regardless of whether the concept was actually new or non-obvious, which the courts are now investigating, the point is that the higher levels of abstraction are only protectable under the patent system. Another example is the patented reverse auction Web site system owned by Priceline and recently licensed to Microsoft. PANELIST, MITCHELL ZIMMERMAN, PARTNER, FENWICK & WEST, PALO ALTO, CALIF. The premise of many of the previous comments was the position that look and feel are no longer protectable under copyright law. There haven’t been so many cases on this subject in recent years, but I don’t think it’s particularly clear that this is so. True, patent law is playing an increasing role, and it is plain that “ideas” must be protected by patents and not by copyright. But what is an idea and what is expression is, obviously, a highly fuzzy area, and I for one do not think there is a clear trend in the law rejecting the position that look and feel are protectable. For some cases acknowledging or favoring protectability, see Apple v. Microsoft, 799 F.Supp. 1006, affirmed 35 F.3d 1435 (9th Cir. 1994) (discussing at great length which elements of a user interface are or are not protectable); Consul Tec v. Interface Systems, 22 USPQ2d 1538 (ED Mich 1991) (unique compilations of commands protectable); Bateman v. Mnemonics, 79 F.3d 1532 (11th Cir. 1996) (interface specifications not uncopyrightable as a matter of law); Engineering Dynamics Inc. v. Structural Software Inc., 26 F.3d 1335 (5th Cir. 1994) (file structures and formats protectable). These cases are not so new. But they haven’t been overturned, and I think they represent a large part of the admittedly-not-wholly-consistent picture of protectability of computer software. The extent to which the “look and feel” of a Web site is really protectable is not limited, in my view, so much by the cases on look and feel. The problems are more those of lack of originality, the scenes a faire doctrine, merger and functional constraints on Web site design. That is, a significant part of the feel of any Web site is based on the linking/framing structures that are part of the Internet. Within that constraint, though, I still think there’s a lot of room for look and feel protection. No case leaps to mind that has put this to the test in the Internet context.

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