The Law Of Virtual Reality
Scope of Protection for Virtual Works
By Jack Russo & Michael Risch
Copyright 1993 by Jack Russo and Michael Risch. All Rights Reserved.
TABLE OF CONTENTS
- BIRTH OF A NEW TECHNOLOGY
- COPYRIGHT PROTECTION OF VIRTUAL REALITY
- Key Definitions
- General Principles
- Copyright Office Policies on Software Visual Displays
- Copyrightability of Virtual Reality Applications
- Case Analysis of Copyrightability
- “LOOK AND FEEL” DEVELOPMENT IN THE COURTS
- Cases Favoring Broad Protection
- Cases Favoring Competitive Principles
- Analytic Approach: Screen-by-Screen Analysis
- STANDARDS FOR DETERMINING INFRINGEMENT
New developments in computer technology, dubbed “virtual reality” applications, seek to put the computer user into the computing environment as a way to traverse and interact with information. Significant legal issues will arise from this new software technology. This chapter discusses the scope of intellectual property protection for virtual works.
Since their introduction in the 1980’s , William Bricken attributes the first computer driven systems to VPL Research, Inc. of Redwood City, California and Autodesk of Sausalito, California in “Virtual Reality: Directions of Growth” (1991, p. 1). Broader definitions of virtual reality demonstrate that the concepts existed at least since the introduction of computers if not before this. the number of virtual reality applications has grown rapidly, and significant efforts have been made to make the necessary technology available and affordable to the general public. As one commentator put it: “A virtual world is a computer that you operate with natural gestures, not by composing computer programs, but by walking around, looking around, and using your hands to manipulate objects. “Howard Rheingold, Virtual Reality (Simon & Schuster 1991) at p. 70. Another has said, “In a virtual world, we are inside an environment of pure information that we can see, hear, and touch. “Bricken, M., “Virtual Worlds: No Interface to Design” in M. Benedikt, Cyberspace: First Steps (MIT Press 1992) at p. 363.
Multiple virtual “objects” can exist within a virtual “world,” multiple virtual worlds can exist within a virtual “reality,” and multiple virtual realities can be explored with the same computer equipment and, indeed, during the same session in which the user is interacting with that computer equipment.
Virtual reality applications pose factual, legal and even metaphysical questions. Metaphysically, virtual objects can have all of the same properties as the real objects they represent; consequently, as software and hardware technologies improve it will become almost impossible to distinguish the virtual from the real. Factually, virtual reality applications will present novel ways of looking at traditional information and new ways of interacting with computing environments. Legally, at the point when virtual objects can barely be distinguished from real objects, it will also be nearly impossible to tell whether someone has ‘copied’ or ‘prepared a derivative work’ from part or even all of a virtual world, when such copying or use is not admitted.
This section of the treatise will discuss the history and applications of virtual reality, analyze the current case law as it will likely apply to virtual reality, and present new issues in the scope of protection of virtual reality applications.
A virtual reality is almost reality; as the name implies, it is “virtually” real. Virtual reality environments, such as rooms, cities, or entire worlds are created by computer software executing on high-performance computer hardware. While the terms “virtual reality” and “artificial reality” are generally treated as the same in, for example, stereo reproductions of music, use of the term “artificial reality” historically occurred first and existed before the rise of high-performance personal computers. It was not until computing speed, performance, and ability improved and became more common in the 1990’s that simulated visual, auditory and even tactile environments were realistic enough to be properly termed ‘virtual realities.’
At the very broadest interpretation, virtual reality “includes all computer-generated worlds that a viewer can enter and change through the imagination. “Hagen, Charles. New York Times. July 5, 1992. Section 2, p. 19. Thus, a virtual world includes, for example, the environment presented in the Disney movie Tron, an early 1980’s fantasy that represents the workings of a computer as ‘little people’ and their vehicles moving within a three-dimensional world. Indeed, the draw and paint programs which graphic artists manipulate and the CAD/CAM programs that architects and engineers use to generate two-dimensional objects can also be viewed as creating relatively simple virtual worlds.
According to a more moderate definition, virtual realities include environments in which some combination of sensory perception — such as sight, sound, touch, and eventually taste and smell — is simulated to recreate reality. An example is ‘surround sound’ audio reproduction that is recorded on 100 channels from 100 positions; Current stereo reproductions use two channels. Even ‘surround sound’ is produced with two channels, but with encoding to help the processor decide which speakers to send signals to. such an audio reproduction is perceived by most listeners almost exactly as though the live musical creator is present and performing. In addition, currently existing “home theater” systems using surround sound technology could be considered a form of virtual reality, especially when coupled with a large screen television.
Finally, the narrowest and most modern definition is of virtual reality as a human-computer interface in which the user only partially controls the computer and in which the user seems to have a ‘natural’ involvement in the environment. Spring, Michael B. “Informating with Virtual Reality” in S. Helsel & J. Roth. (ed.) Virtual Reality: Theory, Practice, and Promise (Meckler Publishing, 1991) at pp. 7-9. With a natural interface, the user ceases to think of the computer as an object to be manipulated, but more as an environment to explore; the user’s attention and psychology of experience melds into the environment itself. See, generally, Csikszentmihaly, Mihaly. Flow: The Psychology of Optimal Experience. Perhaps the most graphic, well-known, and advanced example of this is the ‘holodeck’ in Star Trek: The Next Generation, in which the user is immersed in an environment which, for all intents and purposes, is real. Only if the user ‘overrides’ the computer does he or she have the ability to control the actions of the computer simulated beings; otherwise, the computer controls all of the sights, sounds, and actions, while the user merely acts and reacts within the environment. Using as of yet uninvented “force field” technology to simulate tactile sensations, Sternbach, Rick and Okuda, Michael. Star Trek: The Next Generation Technical Manual. New York: Pocket Books, 1991. p. 156. Star Trek characters on the holodeck can fight enemies, ride horses, and even swim while seeing, feeling, hearing, and even tasting and smelling everything that is simulated. The fictional holodeck extends virtual reality further than currently possible; it represents a future ideal of virtual reality’s potential. The broadest definition of virtual reality encompasses, to some extent, other new technologies emerging in the computer industry, such as multimedia, cyberspace, and the internet. Multimedia refers to the combination of visual display and audio recordings in the computer environment. Cyberspace is generally any non-dimensional area where information is exchanged and processed. The internet is the world wide set of network connections which connect computers. This section focusses more on the narrower definitions of virtual reality.
The development of the history of the virtual reality industry can be separated into to subgroups. First, the invention history outlines the way that the technology and ideas shaped the current definition of virtual reality. Second, the commercial history illustrates the way that virtual reality is being developed into affordable, mass-producible products.
The earliest beginnings of virtual reality can be seen in early patents for simulations. One such simulation is of the human hand, used to communicate with the deaf and blind. See, Laenger, Charles, et al. “Method and Apparatus For Communicating with People”. U.S. Patent No. 4,074,444, issued February 21, 1978. Figure 1 shows a diagram of the device. The patent issued for a keyboard connected to a movable hand. Letters typed in to the keyboard were converted into electrical signals which shaped that hand into the shape which corresponded to the letter.
Another, more “virtual reality like” simulator was invented by Morton Heilig, who patented the “Sensorama Simulator” in 1962. Howard Rheingold describes one “motorcycle” version of the Sensorama Simulator as a pinball machine-like apparatus which presents a three-dimensional film from the viewpoint of a motorcycle driver and plays sounds, including the ignition of the motorcycle, consistent with a motorcycle ride. Rheingold, Id., at p. 49-58. See, Heilig, Morton. “Sensorama Simulator”. U.S. Patent No. 3,050,870, issued August 28, 1962. See also, Heilig, Morton. Stereoscopic Television Apparatus for Individual Use”. U.S. Patent No. 2,955,156, issued October 4, 1960. Simulators have evolved into both hardware-type simulators, such as an airplane simulator used in flying schools, and software-type simulators, such as Microsoft’s aircraft flight program for Windows.
In addition to the development of more realistic simulators, the move to more natural data input technology has progressed throughout the years. For example, in 1966, Francis Rossire received a patent on a stress sensor measurement system in aircraft. See, Rossire, Francis. “Stress Sensor and Control System for Limiting Stresses Applied to Aircraft”. U.S. Patent No. 3,229,511 issued January 18, 1966. Also, Rockwell developed and optical method to examine different characteristics in materials. See, James, Kenneth, et al. “Optical Deformation Sensor”. U.S. Patent No. 4,420,251, issued December 13, 1983. While these sensors are quite simple by today’s standards, they are examples of technology which can process physical inputs and are the beginnings of today’s modern physical data input devices, such as gloves and other interactive clothing.
In a more applied example, in the 1960’s, Nicholas Alferieff developed an apparatus which generated different signals by detecting the different button combinations on a hand held device. See, Alferieff, Nicholas. “Man to Machine Communication Keyboard Device”. U.S. Patent No. 3,428,747, issued February 18, 1969. Figure 2 is the drawing that Alferieff delivered to the Patent and Trademark Office. This device sent different signals out depending on the combination of keys pressed; rather than automatic sensing, however, the device used buttons that were pressed.
In 1983, Gary Grimes of Bell Labs was awarded a patent for a data input system (in the shape of a glove) which detects the position of the hand and outputs an appropriate code; Figure 3 is a depiction of Grimes’s glove. See, Grimes, Gary. “Digital Data Entry Glove Interface Device”. U.S. Patent No. 4,414,537, issued November 8, 1983. In addition, four Japanese inventors have received a patent for glove-based interfaces for generating musical tones. See, Suzuki, Hideo, et al. “Musical Tone Apparatus Mounted on a Performer’s Body”. U.S. Patent No. 4,905,560, issued March 6, 1990. These devices work in a similar manner, but extend the idea by generating music and other sensory outputs.
While the early work described above was all necessary and precedential in the evolution of virtual reality, the actual development of a viable virtual reality industry was achieved by the research and development of commercially feasible products which combined the necessary elements of a virtual reality application. The reputed “grandfather” of virtual reality in its present form is Myron Krueger, who first coined the term “Artificial Reality” in 1974; nine years later, he published a book by the same name. Rheingold, Id., at p. 114. Krueger has long since been a visionary in the area of virtual reality. Krueger’s work evolved from an almost artistic viewpoint; Krueger’s artificial reality “laboratories” were rooms which were alive. Krueger’s first project was a room that created different sound and light patterns depending on where people walked in the room. His latest projects recognize the movements of people in the room and, using artificial intelligence, automatically simulate them on a video screen. Rheingold, Id, at pp. 113-128. This work represents the beginnings of the virtual reality camera. The existence of a virtual reality camera has a bearing on the scope of copyright protection in virtual reality. See, the discussion below.
One of the first businesses to develop virtual reality applications was VPL Research. Several other companies were original virtual reality developers, but are not discussed in detail here. They include Autodesk and Sense8, among others. VPL began was founded by Jaron Lanier in the early 1980’s.One of the authors was the incorporating attorney for VPL. VPL developed the DataGlove, which used fiber optic bundles to discern movements of the hand and relate those movements to a computer. VPL also developed software to process the signals sent by the DataGlove. Rheingold, Id., at pp. 153-162. VPL further went on to develop commercial, head mounted visual displays, or “goggles”, which are worn over the head. Goggles are the evolutionary product of the three dimensional stereoscopic films developed by Morton Heilig. VPL obtained a number of patents on its work. Due to non-payment of a debt, VPL’s patents reverted to a French Investment company. “French Firm Gets VPL Patents”. San Jose Mercury News. December 8, 1992, at p. G1. In addition, it laid off virtually all of its staff, and its founder, Jaron Lanier, has left the company. “Virtual Reality Company Barely Exists”. San Francisco Chronicle. December 8, 1992, at p. C1.
The public sector has begun to research into virtual reality. The NASA/Ames Research Center, led by Scott Fisher, has been and is currently performing research in the virtual reality arena. NASA is notably remembered for taking LCD displays from two radio shack televisions and creating the first “affordable” head mounted display goggles. NASA later entered in an agreement with VPL, and technology was integrated into a more complete virtual reality; NASA was the first organization to combine visual goggles with VPL’s DataGlove. Rheingold, Id., at pp. 132-136.
The development of virtual reality applications and the virtual reality industry in general has progressed through innovation in both idea and technology to its current level.
Today’s computer hardware and software technology places virtual reality at a level somewhere between the moderate and narrowest definitions. At current technological levels, virtual reality is an environment simulated by a computer that creates a three-dimensional, multi-sensory environment which mimics reality when perceived by the user. The illusion can be viewed on a computer screen, T.B. Coull, “Texture-based Virtual Reality on a Desktop Computer using WorldToolKit” in Beyond the Vision: The Technology Research and Business of Virtual Reality. (Meckler Pub. 1992). but the effect is more ‘realistic’ if headphones, eyewear, gloves and interactive clothing are used to communicate directly between the user and the computer. The additional components are used to make the computer interface more natural and seamless and the computer output more realistic. Artificial intelligence can make virtual reality applications more realistic by improving both computer responses to input and the overall human-computer interaction.
Virtual reality has taken many forms commercially. The categories that commercial applications fall into are: military, education, entertainment, games, and medical and professional applications.
For example, NASA uses a virtual workstation that combines voice and gesture recognition with motion tracking. The user is able to see and manipulate a world covering a full 360 degree range. Fisher, Scott. “Virtual Environments: Personal Simulations and Telepresence” in Virtual Reality: Theory, Practice, and Promise (Meckler Pub. 1991) at pp. 105-108. When the user’s head turns, he or she sees different parts of the virtual world under display. When the user reaches out and grabs an object, the computer senses if his or her hand is in the correct spot; if the hand is not in the correct position, the hand that is seen in the virtual environment closes on ‘air.’ The user is essentially in the NASA-constructed virtual world which could be a simulation of the real world, another planet, or which could be an entirely unique imaginary environment or anything in between — all while sitting safely in a computer filled room on Earth. Such high end applications are fairly expensive, although modern technology has brought the price down; at one point, the DataGlove sold for $8800. Rheingold, Id., at p. 163.
Educationally, virtual reality is used to recreate scenes from the past and immerse the student in the scene. Programmers can include both physical historical elements and people and create an interactive ‘expert system’. The simulation would respond to questions asked by students. By interacting with the scene, the student is able to gain more knowledge and retain it more than if the information were read in a book.
Also, virtual reality applications can be tailored to model different physical settings. Thus, students can learn geography by actually walking through the area being studied.
Virtuality is used in a variety of entertainment media. In addition to Star Trek, the movies Lawnmower Man, Jurassic Park, Tek War, and Wild Palms featured virtual reality as part of the movie. In William Shatner’s Tek War books, Tek is a virtual reality program that acts as a drug. Images shown were two dimensional, but the audience was able to imagine what it would be like to be immersed in such a situation. Chairs which have special eye goggles and speakers are available to enhance each virtual reality experience. In addition, amusement parks, called Cinetropolises, are being designed to offer a myriad of “rides” in multimedia and three dimensional virtual reality applications. Grover, Ronald. “Where Buying a Ticket Puts You Right in the Action”. Time Magazine. March 7, 1994. pp. 73-75. Cinetropolises cost in excess of $18 million, and analysts estimate that each theme park can generate at least $10 million in revenues each year.
Computer Games are currently the most popular form of virtual reality. Applications vary from a $30 PC program which works with a digital sound card and a standard color monitor to a multi-user arcade-style game. One exemplary arcade game allows multiple players to sit in the “cockpit” of giant robots which fight against each other. Each cockpit moves with the simulated movement of the robot being controlled and has a screen which displays that particular robot’s line of vision.
In the late 1980’s, based on VPL’s DataGlove, Mattel introduced the PowerGlove, which allowed the user to use hand movements to control Nintendo games. The PowerGlove represented a low cost version of VPL’s DataGlove and was developed in part by VPL, among others. The PowerGlove senses motion in the fingers as well as overall hand motion in order to perform its tasks as a game controller.
Also available for video game systems are goggles which project images in three dimensions. Figure 4 is a picture of the goggles from a catalog; at printing, the retail price was under $300. United Airlines High Street Emporium, Spring 1994, at p. 6. Figure 5 is a catalog photograph of a chair used to control video games. Id., at p. 7. These two items and the power glove are all used to virtualize video games.
Medically, virtual reality can be used to train doctors. Using sensitive gloves and goggles, doctors can simulate difficult operations before they occur. Doctors can also explore circulatory systems via an exploratory virtual reality ‘vehicle’. Also, doctors can practice surgery techniques on virtual patients before stepping into an operating room.
Professionally, virtual reality is used to improve the ability of people to do their jobs. One application is the “walk through” design of homes. The customer can literally simulate walk through and examine a home before it is actually built. During the walk through, the customer can grab and move items to new locations. Another use of virtual reality is that recreation of crime scenes by lawyers in court. All of these applications are based on new types of authorship that will compete for broad legal protection under copyright and other law.
Copyright subsists in original works of authorship; virtual reality applications will almost always include original authorship. The important issues, however, in the protection of virtual reality applications will be the scope of copyright protection, the degree of copying required before infringement will be found, and the impact of the fair use doctrine on the creation and reproduction of virtual worlds and virtual objects.
Generally, existing statutory and case law will readily extend protection to virtual worlds and even to particular original virtual objects, but the very nature of virtual reality requires that subsequent participants be allowed greater freedom to adapt, modify and extend existing virtual worlds and existing virtual objects without liability for infringement except in the cases where (1) strikingly similar or nearly identical copying occurs for virtual worlds and virtual objects that simulate the real world and real objects or (2) substantial similarity exists for unique virtual worlds and unique virtual objects.
To understand how copyright protection applies to virtual reality, it is important to understand generally the terminology associated with virtual reality and the copyright principles applied to computer software.
Virtual worlds are composed of virtual objects. A virtual object is any reproducible part of the virtual environment, whether the user has interacted with it or not. Thus, the light cycles in Tron and the aliens on Star Trek: The Next Generation’s holodeck are virtual objects.
Virtual works are composed of virtual objects and the manner in which they interact. More technically, a virtual work is fixed in a tangible medium of expression, namely some form of recording of a sequence within a virtual world. Included in this definition of virtual works could be the following: computer code that creates virtual environments, the audiovisual presentation to the user, the interactive media including tactile components of the environment which are experienced by the user, as well as video recordings of audiovisual components to be played on a standard television or movie screen. The recent movie Lawnmower Man is an example of video recording of virtual reality. On a side note, Lawnmower Man includes virtual environments in which two people are able to have ‘virtual contact’ within a virtual environment. Such
technology, when used in separate places and with appropriate tactile sensations, would revolutionize telecommunications.
Analysis of copyright protection of virtual reality requires understanding of the copyright principles involved in the computer industry generally. Virtual objects, worlds, and works consist of both an audiovisual portion and underlying source code portion. Generally, the audiovisual portion is conceived and the source code portion is written so that when interpreted by a computer it presents the audiovisual portion. The audiovisual portion when combined with the way it is manipulated by the user is called the user interface. The user interface itself will generally contain its own “look and feel” representing original authorship.
The following principles govern the copyrightability in computer programs including their user interfaces:
- Original expression is protected by copyright. See, Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340, 113 L.Ed.2d 358 (1991).
- Competitive principles require that ideas alone, when not patented under federal law and when not maintained as a trade secret under state law, may not be protected and cannot be protected by copyright or trademark law.
- What is “idea” and what is “expression” in particular computer programs will continue to be determined on a case-by-case basis using the “abstractions” test, the merger doctrine, and published industry standards under the copyright “scenes a faire” doctrine. Compare, Lotus Development Corp. v. Borland International, Inc., 799 F.Supp. 203, 216-219 (D. Mass. 1992) (electronic spreadsheet with menus is idea but overall Lotus 1-2-3 menu-oriented user interface is copyrighted expression) with Apple Computer, Inc. v. Microsoft Corporation, 799 F.Supp. 1006, 1022-1026 (N.D. Cal. 1992) (overall desktop metaphor of Apple Macintosh graphical user interface is unprotected idea and dissection of particular elements found to be either licensed material or unprotected ideas.)
- What is “original” is determined by the answer to two questions: First, has the work been independently developed, that is, is the work not simply copied from another source? Second, even if independent, does the work have “some” greater than de minimis level of creativity, that is, is the work more than “garden variety,” not “so mechanical or routine as to require no creativity whatsoever,” not “devoid of even the slightest trace of creativity,” and not one “in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent”? See, Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340, 113 L.Ed.2d 358 (1991).
- What is protected original expression and what is unprotected idea will depend on which of three judicial approaches, as further discussed below, is adopted by the Court undertaking the analysis in a particular case.
Under the above principles, “look and feel” protection extends to all originality in a computer program’s user interface including the original expression of the selection, organization and presentation of user visible functions. A single user visible command should not be protected; however, the view that an entire collection of user visible functions is beyond legal protection is not supported by case law. As with the original selection, organization and presentation of data, the original selection, organization, and presentation of such commands may be protected by copyright post-Feist. See, Kregos v. Associated Press, 937 F.2d 700 (2nd Cir. 1991). whether in menus, graphical displays or other visual or sensory metaphors. The general principles, recited above, as well as the underlying federal statutes and the cases interpreting them all support this treatment.
Though the holdings and rationales have fluctuated, both the Copyright Office and the courts have extended the copyright in computer programs to the look and feel of computer programs generally. The development of Copyright Office position and the leading cases is instructive and will likely act as important precedent to extending copyright to virtual works and virtual objects.
The Copyright Office has taken a number of differing positions in applying copyrights to visual displays of computer software. The Office originally allowed registration of visual displays as separate audiovisual works (on Form PA) or as separate literary works (on Form TX). The Office then changed its position and held that the registration of the underlying program also protected all elements of its audiovisual display.
The Copyright Office held public hearings starting on September 9, 1987, to obtain comments and recommendations on how it should proceed in this area. At these hearings, three separate views emerged as to the proper procedure to be followed in computer software registration cases. To some degree these views also represented the conflict which then existed and which still exists within the industry on the broader question of how the Copyright Act should be interpreted in computer program cases.
The majority view, supported by a number of industry associations, recommended that the Copyright Office continue to allow a single registration to cover the entire work including visual displays. Under this view, the registrant would also have the option of submitting additional deposit material setting forth the visual displays. A modified version of the majority view suggested that the Copyright Office develop a new registration form specifically designed for computer software applications, one which would more specifically cover registration of all aspects of the originality embodied in a computer program. The majority position was supported by the need for a uniform Copyright Office practice, by the need to not prejudice existing registrations, and by the desire to allow for flexibility in the future.
A second view, supported mainly by Apple Computer, argued for a requirement of separate registration applications for visual displays and underlying program code. The position was supported by the desire to have independent registrations as evidence of independent copyright protection for visual displays which may exist across differing computer program code and differing computer hardware. In this manner, it was argued, it would be clearer that an infringement of visual displays can occur independent of any infringement of the underlying program code and independent of the particular computer hardware on which the substantially similar visual displays were made to operate.
A third view, supported by some user-oriented associations, contended that the Copyright Office should not allow any registration of visual displays of computer software. It was argued that such displays are generally functional and, therefore, generally not copyrightable. In response, the Copyright Office noted that each case must be examined separately and that Congress and the Courts (and not the Copyright Office) ultimately determine the eligibility and ineligibility of subject matter for copyright and the scope of copyright and the scope of copyright in particular works. The Copyright Office concluded that original works of authorship embodying expression are properly the subject matter of copyright regardless of whether such works are presented in the form of visual displays of computer programs.
In June of 1988, the Copyright Office issued a report and internal guidelines which upheld a single registration application practice for protection of all aspects of a computer program’s originality including visual displays.36 Patent, Trademark & Copyright Journal (BNA), at p. 155 (1988). Whether the registration application is made on Form TX (for literary works) or Form PA (for audiovisual works) turns on which aspect of the work “predominates;” that is, if text predominates then Form TX is to be used and if graphical displays predominate then Form PA is to be used. In either case, however, the applicant can submit deposit material to support the areas in which protection is sought. By this mechanism, the Copyright Office, in effect, confirmed, at least at the examination and registration levels but for practical purposes even further, that copyright protection can subsist beyond the literal program code for the computer software and to the “look and feel” of the computer software and perhaps even beyond that.
Given the above principles and Copyright Office policies, there is little question that copyright protection will extend in some form to virtual works and even to virtual objects. Virtual reality applications are computer programs, and the portion that interacts with the user is indeed a user interface whose “look and feel” is protectable if original and if beyond some constitutionally mandated de minimis level of creativity under Feist.499 U.S. 340 (1991).
The copyright protection subsists “in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”17 U.S.C. 102(a). There is no question but that original virtual objects, virtual works, and virtual worlds – all original authorship in a new medium of expression – easily fit within this statutory definition. Federal Courts recognize that the statutory definition is flexible enough to permit extension of copyright principles to originality embodied in or otherwise expressed as part of virtual reality applications.
From a practical point of view, the Copyright Office policies mean that virtual reality developers can complete copyright registration by registering the virtual work with the Copyright Office on a single form. Form PA should generally be used, because the audiovisual portion of virtual reality will typically predominate over the rest of the work. In any case, developers should submit both source code and interface deposits in order to fully avail of the benefits associated with registering a copyright. Even after the Berne convention, such benefits include avoiding a claim of innocent infringement, obtaining a presumption of validity, and shifting the burden of producing evidence to the defendant with regard to the originality and the existence of de minimus creativity in the copyrighted work.
Virtual reality is different than standard computer programs. The virtual reality interface is more realistic and more natural than the standard computer program. In addition, the virtual reality applications are designed to change into different and even new environments with user input. These differences may cast into doubt the nature of copyrightability in virtual works through differentiation, and one might argue that the Courts have yet to hold that virtual works are copyrightable. Because virtual reality is a relatively new technology, no case law has yet specifically held as such; analogous case law, however, favors the copyrightability of virtual works.
Virtual reality applications are most closely analogous to video games (as to interactive aspects) and computer programs (as to underlying implementing technology). Case law in these areas is fairly well settled and can be readily applied to determine the scope of copyright protection in virtual reality.
In Stern Electronics v. Kaufman, 669 F.2d 852 (2d Cir. 1982). the Second Circuit determined that despite the fact that each game was different (depending on what the user does), a video game was original because of the “repeated appearance of the same sequence of numerous sights and sounds in each” different experience. Id. 669 F.2d, at 856. The same court held that both the audiovisual display and the underlying computer code were protectable by copyright and the audiovisual display is itself original even though it is created by underlying computer code. As the Stern court put it, originality exists when “someone first conceived what the audiovisual display would look and sound like. “Id. 669 F.2d, at 856.
In addition, virtual realities (and the virtual objects, works, and worlds within them) are each generally “sufficiently permanent or stable to permit it to be perceived reproduced, or otherwise communicated for a period of more than a transitory duration.”1 NIMMER ON COPYRIGHT 2.18[H], p. 2-217 Because each experience in each virtual world – primarily due to interaction with particular virtual objects and the user’s creation of new virtual objects and new virtual works in each session – may all be different, it is more difficult than for video games to claim permanence or stability of virtual reality in the traditional sense. However, the virtual environment is generally fixed in some state before and during every use, even if a particular user does not see or hear certain aspects of it. As discussed by the court in Stern, this level of permanence and stability is sufficient to allow protection. In addition, both the audiovisual components and the computer program components are each protected by copyright. Thus, and it is possible to infringe an audiovisual work with program code that is different than the original, and it is possible to copy a computer program while not infringing an audiovisual copyright.1 NIMMER ON COPYRIGHT 2.18[H].
Virtual reality applications, however, are different in many ways from both their computer software and video game predecessors. Such differences cause reassessment of currently well-settled issues. For example, virtual objects generally simulate the properties of real objects. Virtual worlds generally simulate real worlds. Virtual works generally simulate sequences and interactions experienced in real life. At the same time, however, virtual objects, virtual worlds, and virtual works are all subject to user adaptation, modification and re-creation.
In Feist Publications Inc. v. Rural Telephone Service Co.,499 U.S. 340 (1991) the U.S. Supreme Court affirmed that ‘pure’ fact cannot be copyrighted and collections of facts, if not beyond some de minimus level of creativity (even if original), also cannot be copyrighted. Thus, it could be argued that the more realistic that a virtual object, a virtual work, or a virtual world becomes, the less protection will exist under copyright laws. When a virtual object, work, or world becomes as real as the real-life item it is designed to simulate, then the environment would merely be an exact copy of reality. If reality is considered a “fact” within the meaning of Feist, then no copyright protection would be allowed at least for the audiovisual portions that mimic reality or “fact” identically. Copyright would still protect the underlying original computer software which was implementing the particular virtual object, virtual work or virtual world.
The competing positions can be balanced with reference to the particular virtual work at issue. A virtual work is not merely a direct copy of reality; it is an expression of reality conveyed through a virtual author’s vision of what reality does and does not include and how reality does and does not behave. The ability to render a realistic image into an electronic expression is at least as creative as rendering a realistic image into a photograph. Even photographs which capture minimal expression have always been subject to copyright protection regardless of the extent of automation of photographic equipment.1 NIMMER ON COPYRIGHT 2.08[E]; see also, Burrow Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). The same standard will likely apply to virtual reality applications. See, Atari Games Corp. v. Oman, 888 F. 2d 878, 883 (D.C. Cir. 1989) (“The level of creativity necessary and sufficient for copyrightability has been described as ‘very slight,’ ‘minimal,’ ‘modest.’ citing, West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1223 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987); Thomas Wilson & Co. v. Irving J. Dorfman, 433 F.2d 409, 411 (2nd Cir. 1970), cert. denied, 401 U.S. 977 (1971); 1 NIMMER ON COPYRIGHT 1.08[C], 2.01[B] (1989).
In addition, the computerization of virtual objects, virtual works, and virtual realities provides opportunities for creative extensions to real life objects, works, and realities. Virtual worlds can and often do allow activities which seem real, but are not possible in the real world. For example, virtual worlds can simulate the inner workings of the human body; in this environment, the user could tour the circulatory system as if he or she were a blood cell. Also, the user may ‘fly’ through a very realistic copy of a city. It is the extension of reality that truly gives virtual works their creative expression — even if a true rendering of reality were not considered creative. For all of these reasons, notwithstanding Feist and arguments that can be made from it, virtual realities, including virtual worlds, works, and objects, will all receive some protection by copyright. The scope of protection will vary depending on the approach taken by the Court in balancing the competing interests of creative incentives and competitive value. These same issues have been addressed in the copyright “look and feel” cases which have been decided over the last ten years.
While virtual reality applications can be copyrighted as computer software and are copyrightable even though they are distinct from standard computer software, the type of protection afforded to virtual reality applications can be interpolated from related decisions in precedential “look and feel” cases. The three views expressed in the Copyright Office roughly correspond to the views also found in the conflicting judicial opinions addressing these issues: like Apple’s position in the Copyright Office, one body of case law provides broad protection; as suggested by some of the user associations in the Copyright Office hearings, another would provide only limited or narrow protection; and, somewhat similar to the majority view upheld by the Copyright Office, the most recent cases appear to take a middle ground approach of protecting certain user interface elements on a case-by-case basis. Because no U.S. Supreme Court case has yet directly resolved the conflicting decisions, they must each be applied separately to virtual reality in order to examine the range of possibilities in the Courts.
A number of cases have favored broad protection of computer software. In general, their rationale is that the “idea” of a computer program can be stated narrowly and everything else may be properly considered “expression” subject to copyright protection. These cases have established several grounds for copyright protection.
Though not strictly a “look and feel” case, the decision in Whelan Associates, Inc. v. Jaslow Dental Laboratory Inc., 797 F.2d 1222 (3d Cir. 1986), extended the scope of copyright protection for computer programs and provided a foundation for a number of later software cases.
In Whelan, the Third Circuit upheld the trial court’s finding of copyright infringement based upon the defendant’s copying of the “structure, sequence and organization” of plaintiff’s software. While recognizing that copyright protection does not extend to the “idea” or functionality of the program, the Court found that similarities in the file structures, screen outputs and certain subroutines, while not comprising a majority of the total number of lines of code in defendant’s software, were similarities in “expression,” and therefore constituted copyright infringement. Id. 797 F.2d, at 1238-39.
In so finding, the Court set forth a test for determining the line between unprotectable ideas and the protectable expression of those ideas; this test favors finding protectable expression:
[T]he line between idea and expression may be drawn with reference to the end sought to be achieved by the work in question. In other words, the purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea. Id. 797 F.2d, at 1236.
The Whelan decision not only extends copyright protection beyond literal copying of the structure, sequence, and organization of that program code itself, but also formulates a broad test which limited unprotectable “ideas” to only those “necessary to the program’s purpose or function” and everything else is or could be protectable expression. Compatibility, familiarity, ease of use, user training and “industry standards” play no obvious role in this analysis.
As applied to virtual reality, Whelan stands for the proposition that all virtual works are protectable. Under Whelan, it can be argued that no portion of a virtual work, including the structure, sequence, or organization of events, can be used in any other work without infringing. For example, in a virtual representation of a city, the function or “idea” of the work would be representation of a city, and that would not be protectable. However, the first developer to create a representation of a certain city would literally “lock out” any other similar representations of the same city through the broad copyright protection suggested by Whelan. Indeed, under Whelan, once access is shown, it is extremely difficult to rebut a finding of infringement based on any similarities between the two works at any level beyond the underlying idea for the first work.
In Broderbund Software. Inc., v. Unison World, Inc., 648 F.Supp. 1127 (N.D. Cal. 1986), the Federal District Court in San Francisco applied the Whelan principle to the protection of the program’s visual displays. While the plaintiff originally made a number of claims pertaining to its greeting card application program called “The Print Shop,” only the question of infringement of the audiovisual copyright in the screen displays was tried to the court. Id. 648 F.Supp., at 1129.
The Broderbund court used the holding in the Whelan case to protect audiovisual copyrights in computer programs beyond their literal displays. The Court held that the structure, sequence, organization, and naming of visual displays and associated commands, as well as the layout on the screen were protectable.
Under Broderbund, all portions of a virtual work can be protected by a single copyright registration. Id. 648 F.Supp., at 1135. In addition, under Broderbund, the placement of different virtual objects in a virtual world can be protected. For example, one world may place an apple tree on the left portion of the viewer display, a raspberry bush in the middle, and a lake on the right side of the display. Broderbund could be applied to hold that a virtual world with an orange tree on the left, a strawberry bush in the middle, and a pond on the right is infringement where access is proven and there is no proof of independent development of the competing work.
In Digital Communications Associates, Inc. v. Softklone Distributing Corp., 659 F.Supp. 449 (N.D. Ga. 1987), the Federal District Court in Atlanta found that Plaintiff’s Crosstalk telecommunication product’s single status screen, Figure 6 depicts a copy of the status screen at issue. even though it was just one display of a number of parameters and commands, was protectable expression and was copyrightable as an arrangement and compilation of such information independent of its underlying program code.
The Digital Communications case, when applied to virtual reality, could be extended to hold that a simple, static virtual work could be protectable. For example, a virtual airport which features a text based television monitor, similar to those found in actual airports, from which the user may select a destination to ‘fly’ to, can be protected against a similar listing of the same cities, and even a similar display listing different cities. Indeed, under Digital Communications, any static display, if original, can be protected — even if its content is otherwise factual. Digital Communications, as with Broderbund and Whelan, are all pre-Feist cases; a different result may well have been determined in each of these cases in light of Feist.
Since 1986, Lotus Development Corporation has marketed Lotus 1-2-3, a popular spreadsheet software for microcomputers. Lotus has a number of cases to enforce its copyright in 1-2-3. In January of 1987, Lotus filed suit against Paperback Software and separately against Mosaic Software claiming that each defendant had developed an infringing “clone” of the Lotus 1-2-3 software. In a related matter, Software Arts, the developer of the original VisiCalc spreadsheet software filed a separate action against Lotus claiming that Lotus 1-2-3 was an infringement of
VisiCalc and that such infringement claims could be brought by Software Arts — even though Software Arts had conveyed all right, title, and interest in the VisiCalc computer program copyrights to Lotus in an earlier business transaction. The District Court granted Lotus’ motion dismissing the Software Arts’ action and confirming that Lotus had acquired all rights, including all claims, as part of the transaction.
While both Mosaic’s TWIN and Paperback’s VP Planner had most of the same features, commands, macro language, syntax, organization and sequence of menus and messages as Lotus’ 1-2-3, their visual displays were not identical to 1-2-3. Both products can, however, read Lotus files without modification including Lotus macro files and the Lotus user would find much familiarity in the overall “look and feel” of these products.
The Federal District Court in Boston entered a decision upholding the copyright in the user interface of Lotus 1-2-3. The Court ruled that the menu structure used by Lotus is not essential to the idea of a spreadsheet, and that there are many ways to express the same functions. Lotus Dev. Corp. v. Paperback Software Int’l, 740 F.Supp. 37, 67 (D.Mass. 1990). Judge Keeton provided a detailed three-part legal test for copyrightability of the non-literal elements of computer programs:
a. Scale of Abstractions
The first step may be called: extrapolating a “Scale of Abstractions.” The Court considers, in effect, how broad or how narrow copyright protection could be in a particular case. This is required in copyright cases because, unlike patents, there are no written claims in copyright registration applications or in issued copyright registration certificates. Id. 740 F.Supp., at 60.
b. Essential Elements of Idea
The second step may be called: determining the “Essential Elements of an Idea.” In practice, the Court reviews other software products in the same field to determine those shared elements which, in effect, define the particular product area; in this case, the Court noted that most electronic spreadsheet programs include rows, columns, cells, command menus, messages, and macro languages as essential elements of the idea of an electronic spreadsheet — but the exact manner of expressing the menus, messages, and language differs among the various products. Id. 740 F.Supp. 37, at 63.
c. Original Expression of the Whole Work
The third step requires judging whether particular elements individually or, more importantly, when taken as a whole, are not so trivial (in the Court’s words “not so obvious”) that sufficient originality exists to merit copyright protection. For example, and as found by the Court, each command word in the Lotus macro language would not be substantial enough to be protected individually but, the command language, as a whole, is protected: “If particular characteristics not distinctive individually have been brought together in a way that makes the ‘whole’ a distinctive expression of an idea — one of many possible ways of expressing it — then the ‘whole’ may be copyrightable. “Id. 740 F.Supp. 37, at 63.
The Lotus v. Paperback decision clearly confirmed a policy of broad protection of copyright for computer software in all of its various forms of originality. More importantly, the Court’s decision opens the door to further expansion of copyright for voice, audio, and other non-traditional forms of user interfaces.
In 1993, Judge Keeton extended his previous rulings beyond look and feel in decisions arguably involving only the interactive “feel” of a software product. In Lotus Development Corp. v. Borland International, Inc., 799 F.Supp. 203 (D. Mass. 1992), Judge Keeton applied the principles enunciated in Lotus v. Paperback but in a more detailed manner with respect to Lotus’ contention that Borland’s Quattro and Quattro Pro programs infringe its Lotus 1-2-3 spreadsheet program by copying Lotus 1-2-3’s menu commands, menu structure, long prompts, and keystroke sequences.
Unlike the Paperback VP Planner and Mosaic TWIN products, which were literally “clones” of the visual displays of the Lotus 1-2-3 spreadsheet program, Borland’s Quattro programs had several interfaces. The “native” interfaces had a different interface than Lotus 1-2-3. However, the Quattro programs had an interface available to users called its “1-2-3 interface” or “emulation interface.” The emulation interface mimics the menu structure of 1-2-3, which Borland learned from third party books. Judge Keeton had agreed in a previous ruling that: “It is not enough for a plaintiff to prove great similarity of the allegedly infringing work to uncopyrightable parts of the copyrighted work. “Lotus v. Borland, Id., 788 F.Supp., at 84. In this second ruling, however, Judge Keeton found that Borland’s use of the Lotus interface infringed the Lotus’s copyright. Lotus v. Borland. 799 F.Supp. 203.
In the latest published decision, Judge Keeton extended the copyright even further. Judge Keeton held that Quattro Pro’s ability to read Lotus 1-2-3 macros or commands typed into the keyboard was infringing on Lotus’s copyright. Lotus v. Borland, 831 F.Supp. 233 (D.Mass. 1993). This decision is based primarily on the notion that Lotus 1-2-3’s menus are arranged in an original order in the program, but the District Court further implied that even the collection of commands, because of their embedded acknowledgement of user input, are copyrightable and protectable. Id.
As applied to virtual reality, the Lotus decisions, and particularly Lotus v. Borland, stand for the proposition that even just the “feel” of a software presentation, that is, the interaction of the user with commands and command sequences, See, e.g., the Borland key reader described in previous footnotes. are protected. For example, many virtual reality applications use a collection of gestures such as “pointing” to indicate the direction that a person wishes to “fly”. The Borland decisions could be extended to hold that such a collection of gestures forms part of the interactive “feel” of the virtual reality application’s user interface and justifies at least as broad a copyright protection as the collection of factual commands found protected in the Lotus v. Borland cases.
The overall thrust of the above decisions is that, in theory, voice, audio, touch and other forms of sensory perception, if original and if “fixed” in some form of expression, can be protected by copyright if, in the Court’s words, “the overall structure, the order of commands…, the choice of letters, words, or ‘symbolic tokens’ to represent each command….” and other features may be expressed in a number of other ways. Id. 740 F.Supp. 37, at 67. Under the above line of cases, copyright is extended broadly without a strong concern for competitive principles, compatibility, familiarity, or industry standards.
A number of the cases take a more strictly competitive approach to determine what is copyrightable “expression” in computer software cases. If applied to virtual reality applications, these cases would limit the scope of protection and would give weight to compatibility, familiarity, and industry standards across virtual works and between virtual worlds.
In Synercom Technology Inc. v. University Computing Co., 462 F.Supp. 1003 (N.D. Tex. 1978), the Court issued an early potential blow to copyright protection of visual displays — even though the case itself did not, strictly speaking, deal with the subject of visual displays. Rather, the Court addressed whether plaintiff’s sequencing of data input formats for a statistical analysis program could be protected by copyright. The Court rejected the plaintiff’s position and held that the sequence and ordering of data input was unprotected idea. Id. 462 F.Supp., at 1013-1014.
The Synercom court analogized the sequence and ordering of the plaintiff’s forms to the familiar “H” clutch pattern used in stick shift automobiles. The court reasoned that another auto maker would be free to come along and create another car using the same “pattern,” and that to allow such copying would be “socially desirable” .Id. 462 F.Supp., at 1013-14.
For the Synercom Court, it was enough that the input formats represented a barrier to competitors who wished to be able to have their programs also use data which had already been formatted for the plaintiff’s program; accordingly, the Court gave priority to compatibility and competition.
Taken to its limits, the rationale in Synercom would prevent the use of copyright whenever competitors need third party information (such as compatible screen displays, or in virtual reality applications, compatible virtual objects) to take advantage of an installed base of users who have familiarity through user training or general use. At the very least, Synercom implies that virtual reality developers can reverse engineer a data storage format in order to allow users to import virtual objects and even virtual worlds into a competitive program. This is a central defense issue in litigation in recent cases and will be a critical defense to makers of compatible virtual worlds who wish to address the needs of the installed base of existing users.
In Plains Cotton Co-op v. Goodpasture Computer Service, Inc., 807 F. 2d 1256, 1262 (5th Cir. 1987), the Court of Appeals for the Fifth Circuit affirmed the District Court’s denial of a preliminary injunction which plaintiff sought for the purpose of enjoining, prior to trial, “organizational copying” which Defendants submitted were due to the methods of the cotton industry for which the program was designed.
In Plains Cotton, the plaintiff, an agricultural cooperative, had developed computer software called the “Telcot system.” The Telcot system operated on a mainframe computer and permitted cooperative members to obtain regularly updated displays of information pertaining to cotton prices and availability. The individual defendants had worked on the development of the Telcot system for plaintiff but did not sign confidentiality agreements. Id. 807 F.2d, at 1258.
The corporate defendant, Goodpasture Computer Service, Inc., hired the individual defendants and put them to work on the personal computer version of the Telcot system. Just twenty (20) days after arriving at Goodpasture, the former Plains employees had completed a design of the personal computer version of the Telcot system and just several months later, Goodpasture began marketing it under the name “GEMS.”
The District Court found that the four former Plains employees had access to the Telcot system, that one of them had brought a diskette containing Telcot system programming design information to Goodpasture, and that at least one Telcot subroutine had been directly copied into the source code for GEMS. Nevertheless, the District Court refused to enter a preliminary injunction because of its finding that the underlying program code for the two programs had not been copied (with the exception of the one subroutine which was replaced as of the date of the preliminary injunction hearing). The Appellate Court affirmed, and in doing so made clear that it was not prepared to embrace a broad scope of protection for software copyrights. Id. 807 F.2d, at 1262.
While finding that defendant’s program was “very similar to Telcot on the functional specification, programming and documentation levels,” the Court refused to follow Whelan and instead held that the structure, sequence, and organization of the plaintiff’s program was not necessarily expression but could, as a factual matter, be found after trial to constitute an unprotectable “idea, “Id. 807 F.2d, at 1262. in particular where the structure, sequence or organization is a standard recognized in a particular industry.
Similar to Synercom, the Plains Cotton holding lends support for the argument that compatibility, ease of use, user training and “standards” play an important role in determining the existence and scope of copyright in a particular work. As applied to virtual reality, the Plains Cotton case can be extended to limit protection in certain types of applications. For example, architect and interior design applications may look very similar due to industry needs. Each application would necessarily consist of a virtual house in which the user could walk around; the user could grab and move or resize doors, windows, or furnishings. Under Plains Cotton, a court would likely hold that the similarities in such programs would be pre-determined by industry standards.
In Data East USA. Inc. v. Epyx Inc., 862 F.2d 204 (9th Cir. 1988), the Ninth Circuit reversed the finding of copyright infringement by the District Court after trial and held that the similarities between the plaintiff’s and defendant’s respective “Karate” video games were dictated by the functions of the game and not by their expression. The Ninth Circuit held that the similarities in the programs stemmed from the “idea” of a martial arts game.
The Ninth Circuit’s decision is important for a number of reasons. First, it demonstrates that what is “idea” and what is “expression” is determined factually based on the context of a given work as against the genre of which it is a part with no assurance or certainty of outcome. In a direct extension of the Data East facts to virtual reality, a virtual reality karate application would likely receive much “thinner” copyright protection as against other virtual reality karate applications. A court would likely hold that the nature of a karate game would likely give rise to similar dress on the game participants, similar “karate moves” in the external user interface (e.g., by using the PowerGlove), and similar “karate moves” executed by the karate participants in the visual display.
As applied to virtual reality applications, the above cases favor a limited protection in order to foster competition. This means that as virtual reality applications emerge, additional “compatible” applications can be expected to arise competing for the same user attention with similar commands, functions, gestures, and sequences; See, Computer Associates v. Altai, 983 F.2d 693 (2nd Cir. 1992). (“The interest of copyright law is not simply in conferring a monopoly on industrious persons, but in advancing the public welfare through rewarding artistic creativity, in a manner that permits the free use and development of non-protectable ideas and processes.”) in addition, there is uncertainty as to whether infringement has occurred, and if so, the extent of such infringement.
The more recent cases have taken a more analytic approach in which audiovisual expression is protected on an element-by-element or screen-by-screen basis. This approach correctly discerns those screens and those elements of those screens which are disqualified from copyright protection by doctrines of functionality, merger, scenes a faire, lack of creativity, or lack of originality. At the same time, courts struggle to recognize the overall originality of the combination of the elements on each screen and the sequence of screens, whether each element is original or in the public domain. For virtual reality applications, this means that different virtual worlds will be broken down into separate “screens” Determining how to break virtual worlds into analyzable groups may be difficult for virtual worlds. Dynamic displays with flowing images do not lend themselves to a singular set of “screens”. However, courts will nevertheless likely attempt this analysis. On these screens, the court would determine which objects and user input “commands” are functional, limited in choice given the application, or unoriginal and extract them from the analysis. The court would at the same time attempt to determine the overall program and the way each object and screen, whether protectable or not, is original.
In Manufacturer’s Technologies, Inc. v. CAMS, Inc., 706 F.Supp. 984 (D. Conn. 1989), the Court analyzed the copyright protection which extended to a cost estimating computer program called the “COSTIMATOR.” The defendants, three of which had acted as plaintiff’s sales representatives for the COSTIMATOR program, began development of a functionally similar program to sell for $1000 to $2500 (as compared to the $20,000 price for plaintiff’s program). Plaintiff brought suit for, among other things, copyright infringement based on the similarity of the screen displays in defendants’ software.
The District Court found copyrightability in the screen displays alone without regard to the underlying program code and also found that defendants had infringed the visual display copyrights. The District Court relied upon the Copyright Office’s decision, in part. The District Court went on to hold that the display was copyrightable separate from the underlying code, Id. 706 F.Supp., at 993. providing protection for the visual display, even though the underlying computer program may not have been copied. The Court found some similarities which were not sufficient to support a finding of infringement.
Significantly, the Court rejected the argument that the “external flow and sequencing of the screens” for a cost- estimating program is dictated by functional considerations. The Court pointed to evidence of four different cost estimating programs which all accomplished the same cost-estimating functions but without using similar screen displays or sequences of displays. Id. 706 F.Supp., at 994. The District Court concluded that the similarities between the visual displays and the sequence of visual displays constituted an infringement even though there was “no evidence that the defendants had access to the plaintiff’s source code nor did plaintiff put forth any evidence of source or object code similarity. “Id. 706 F.Supp., at 1000.
As applied to the previous example about architect and interior design virtual reality applications, the Manufacturer’s Technologies case would examine the Plaintiff’s and Defendant’s programs, as well as other similar programs, to determine whether such programs must be similar due to functional constraints of the features of the application. In contrast, a court following Plains Cotton Discussed above. Note especially that the Plains Cotton court specifically held that industry standards dictated similar programs, even though direct copying of a portion of the source code was found., would assume that the products in each industry may be similar in order to foster competition, regardless of whether the facts indicate that such programs need not be similar.
In 1988, Apple Computer, Inc. filed suit in the Federal District Court in San Jose, California against Microsoft Corporation and Hewlett-Packard Company. Apple claimed that version 2.03 of Microsoft’s Window’s operating environment computer software and HP’s New Wave desktop computer software which operates with Windows, both infringed the audiovisual copyrights in Apple’s Macintosh visual displays and images.
Apple had been quite successful in having the Copyright Office register the Macintosh desktop and application software visual displays containing icons and other “desktop” symbolic representations as audiovisual works and the Macintosh program code as literary works. The registration certificates attached to the complaint showed that Apple attempted to register all aspects of authorship embodied in the Macintosh computer programs including their audiovisual displays.
Apple’s case against Microsoft and HP claimed infringement of its graphical user interface. In an early decision, the District Court ruled in Microsoft’s favor and found that certain screen displays were, in fact, licensed by Apple to Microsoft under the terms of a written non-exclusive “license to use these derivative works in present and future software programs. “Id. 709 F.Supp., at 927. This license agreement was the subject of some intense license negotiations between Apple and Microsoft at a time when Apple was in need of additional software applications from Microsoft. The negotiations are described by John Sculley in his autobiography entitled Odyssey.
Notwithstanding the adverse determination on the license issue, Apple submitted a list of 189 alleged similarities in numerous icon and display categories. Some of these categories include: a trash can, the ability to overlap different windows of information, representation of different objects with different icons, ability to automatically arrange objects on the screen, and the ability to move an object on the screen with a pointing device such as a mouse.
In discussing the problem of determining idea and expression, the Court noted the “metaphysical line drawing between idea and expression by which courts rationalize their decisions. “Apple v. Microsoft, 779 F.Supp. 133, 135. Further, though the Court initially accepted Apple’s argument in favor of the overall “look and feel” protection for the Macintosh user interface, that is, that the arrangement of unprotectable items could be considered protectable, Id. 779 F.Supp., at 136. upon reconsideration, in its most recent decision, the District Court ultimately rejected Apple’s approach and instead held that a collection of unprotectable “ideas” were not necessarily protectable. Apple v. Microsoft, 799 F.Supp. 1006, 1022-1026. Specifically, the court held that the idea of a desktop and a windowing system gives rise to certain objects, such as trash cans and individual windows which may be expected in the interface due to the idea.
The Apple decision may have the greatest impact on virtual reality applications. It implies that, although it may be desirable to protect any entire user interface, at some point, the objects in that interface must be examined for their functional aspects on a case by cases and item by item basis.
In a literal extension of Apple to virtual reality, one developer may create a virtual work environment, which would naturally include a virtual desk to work at. Such a desk would include a trash can, a calendar, an in box, an out box, a to do list, different applications, a clock and a file drawer. According to PC Week, General Magic may have done precisely this with the new pen-based user interface under development. Under Apple, a court may be persuaded at some point, as this court was, to protect the entire interface. More likely, however, a court would examine each of the virtual objects on the desktop and determine which objects, such as a trash can, are dictated based on the functional need for disposal. While there are many different types of trash cans in reality, when comparing the designs, courts will often hold that the idea of a trash can, without more, is simply rendered unprotectable.
In Brown Bag Software v. Symantec Corp., 960 F. 2d 1465, 1476 (9th Cir. 1992), the Ninth Circuit upheld a summary judgment granted by the District Court against a plaintiff seeking protection of the user interface of an outlining software product.
Living Videotext developed products called ThinkTank (for the IBM PC) and MORE (for the Apple Macintosh). These products take the metaphor of outlining and automate it through use of a personal computer with drop down menus at the top and user messages at the bottom of the visual display. After Living Videotext released ThinkTank and MORE, John Friend developed for Brown Bag a “clone”-like competitive product called PC-OUTLINE. Though, Living Videotext did not pursue an infringement claim against John Friend or against Brown Bag, it ultimately merged into Symantec and Symantec marketed both ThinkTank and MORE. After the merger, Symantec hired John Friend, the former competitor, to revise ThinkTank and MORE to the next level of innovation for an outlining product. Friend ultimately developed for Symantec an advanced outlining product called GRANDVIEW. After GRANDVIEW was released, Brown Bag filed suit in the District Court claiming copyright and trade dress infringement of PC-OUTLINE by Symantec’s GRANDVIEW software product.
The District Court granted summary judgment in favor of Symantec on the copyright claims. See, Brown Bag v. Symantec. 12 U.S.P.Q.2d (BNA) 1191 (N.D. Cal. 1989). The District Court’s opinion did not address the Lanham Act trade dress issues raised by Brown Bag. The Ninth Circuit affirmed the District Court’s ruling on the copyright claims but remanded the action for the District Court’s consideration of the Lanham Act claims.
The Ninth Circuit’s approach expressly affirms detailed analytical dissection of the copyrightable expression from uncopyrightable features embodied in the user interface. Brown Bag v. Symantec, 960 F.2d, at 1477. In evaluating Brown Bag’s position that the overall “look and feel” of the programs at issue had to be compared and evaluated, the Ninth Circuit rejected Brown Bag’s position because Brown Bag did not request such an analysis. Id. 960 F.2d, at 1476. More importantly, however, the Ninth Circuit noted that copyright protection may extend to a new arrangement of otherwise unprotectable elements. Id. 960 F.2d, at 1476: n. 4.
The Ninth Circuit’s decision correctly states the proper approach: While analytical dissection can and should be used to evaluate infringement claims in computer software cases, the Court must still consider the overall “look and feel” of the user interface and evaluate whether the selection, arrangement and presentation of the user interface is original, is at least minimally creative, and is copied in whole or in substantial part — even if such selection, arrangement and presentation is of commands and other functional features which, on their own, are not individually or separately protectable. At the same time, similarity portions of programs which are not protectable or which have relatively “thin” copyright protection may justify a finding of non-infringement.
As applied to virtual reality applications, the Ninth Circuit ruling indicates that protection in the “overall” virtual experience can be protected. When combined with the Apple ruling, this means that the overall arrangement of a virtual desktop can indeed be protected, even if some parts of it are unprotectable. The balance between incentives for creation and incentives for competition will be made on a case by case and screen by screen basis and this will also be true for virtual reality applications.
On January 27, 1992, the Supreme Court granted certiorari to review “whether the Mexican style appearance of a Mexican food restaurant constitutes protectable intellectual property equivalent to a federally registered trademark, even where the restaurant did not, and cannot, show that its Mexican ‘look’ has secondary meaning in the eyes of its customers, so that members of the public associate the restaurant’s appearance with that particular restaurant. “Taco Cabana International Inc. v. Two Pesos, Inc., 932 F. 2d 1113 (5th Cir. 1991), cert granted, 112 S. Ct. 964 (1992)
In Two Pesos v. Taco Cabana Two Pesos, Inc. v. Taco Cabana, Inc. 505 U.S. ___, 120 L.Ed.2d 615 (1992)., the Supreme Court answered this question in the affirmative and held that the “look” of a restaurant, when inherently distinctive, and even though comprised of functional items of furnishings and other leasehold improvements, is protected under the Lanham Act. More generally, when trade dress is inherently distinctive it does not have to acquire secondary meaning to be protected under the Lanham Act. “To establish secondary meaning, a manufacturer mush show that, in the minds of the public, the primary significance of the product feature or term is to identify the source of the product rather than the product itself.” Id., 505 U.S. ___, 120 L.Ed.2d at 622 n. 4 citing Inwood Laboratories, Inc. v. Ives Laboratories, Inc. 456 U.S. 844, 851, n. 11, 72 L. Ed. 2d 606, 102 S. Ct. 2182 (1982).
Taco Cabana operated a chain of restaurants in Texas serving Mexican food. About seven years after the first Taco Cabana restaurant opened in San Antonio, a Two Pesos restaurant opened in Houston with a very similar motif. Within one year, Taco Cabana’s market had expanded enough so that the markets of the two chains of restaurants overlapped in several cities. Taco Cabana sued Two Pesos for trade dress infringement.
“The ‘trade dress’ of a product is essentially its total image and overall appearance. “Id. 505 U.S. ___, 120 L.Ed.2d 615, at 621, n.1, citing 932 F.2d 1113, 1118 (5th Cir. 1991). It “involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques. “Id. 505 U.S. ___, 120 L.Ed.2d 615, at n 1 citing John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir. 1983); Restatement (Third) of Unfair Competition 16, Comment a (Tent. Draft No. 2, Mar. 23, 1990).
The Taco Cabana case will likely extend trade dress protection to the “look and feel” of computer software. The holding may be employed by software authors and software publishers to obtain additional protection for the “look and feel” of computer software and virtual reality applications in particular. Walking into and experiencing a restaurant in a virtual world deserves as much, if not greater, protection than walking into and experiencing a restaurant in reality.
Such protection will arise when non-functional features of a virtual reality application are presented in an inherently distinctive way. Such features are subject to trade dress protection under the Lanham Act upon proof of a likelihood of confusion. Such protection extends without proof of access and without proof of copying. The open question is whether the federal courts will apply in the Lanham Act area similar tests for “functionality” as the courts have applied in determining “idea” versus “expression” under the Copyright Act. Ultimately, original, creative, and distinctive virtual worlds may be protected by both bodies of federal law.
Screen-by-screen analysis, combined with protection of the overall organization of the display through both copyright and trade dress protection, represents the modern judicial view of “look and feel” protection. This view implies that entire virtual works will be protected by federal copyright and trade dress law, but certain elements may not be protectable at all. Screen by screen analysis will determine the existence and scope of protection as well as the standards by which infringement is found.
It is likely that more exacting standards, similar to those used in the most modern “look and feel” cases, will be used for determining infringement — particularly when virtual objects, virtual works, and virtual realities are closely simulating the real world. In such accurate simulation cases, upon proof of access, more than the traditional “substantial similarity” will likely be required for proof of infringement. See, 2 NIMMER ON COPYRIGHT 13.03[E] at pp. 78.21- 78.22 (“In determining the issue of unlawful appropriation…, the trier of fact is of necessity making a judgment as to whether the similarity is as to material of substance and value to plaintiff’s work. In the case of comprehensive non-literal similarity this involves a judgment as to whether the borrowed ‘pattern’ is of a sufficiently concrete nature. In the case of fragmented literal similarity a value judgment must likewise be made, but in this instance without the necessity of drawing a line between the unprotected abstract and protected concrete.”) Striking similarity or near identical copying will likely be needed to justify a finding of infringement in cases where virtual realities simulate true real world realities. This is not to say that substantial copying of the underlying computer software will be subject to a higher degree of copying; the substantial similarity test as applied to computer software will likely carry forward into software infringement cases in this area as well. In short, similarities that, in the normal course of events, would arise independently in the two works due to a likeness to some real object are not necessarily probative of defendant’s copying from plaintiff’s work. Compare, 2 NIMMER ON COPYRIGHT 13.01[B] at p. 13-10.1 (“In other words, when the question is copying as a factual matter, then similarities that, in the normal course of events, would not be expected to arise independently in the two works are probative of defendant’s having copied as a factual matter from plaintiff’s work.”)
Unlike ordinary audiovisual works, the very purpose of virtual worlds is to allow user participation, interaction, modification, adaption, and re-creation of virtual objects. Without the user, virtual reality is useless; the same is not true for many other computer applications. Within that context, authors of virtual objects, virtual works, and virtual worlds expect to provoke and inspire a creative process that will generate additional objects, works and worlds out of the interaction. Given this goal, a greater showing of similarity is required to support a finding of infringement, even if a subsequent virtual reality is “based upon” a pre-existing work and, therefore, constitutes a “derivative work” within the meaning of the Copyright Act. Essentially, the new virtual work is protectable for the originality added over a pre-existing work but infringement of the pre-existing work will be more difficult to prove because in most cases, the application is designed to be adapted, modified, and “used” for the further development of the virtual work.
For example, Sim City computer game allows the user to “build” cities using building blocks provided within the game. The created city is a work of authorship by the user; the copyright therein is held by the user. Marketing a video of a city created within Sim City has not been addressed. The analysis here, however, suggests that such distribution may be allowable without a finding of infringement. In the same way, derivative virtual works can generally be distributed if original.
Except for wholly original creations, Federal Courts can be expected to recognize that virtual objects, virtual worlds and virtual realities that simulate real objects, real works, and real world realities are themselves “based upon” pre-existing materials thereby limiting the scope of copyright protection. See, 2 NIMMER ON COPYRIGHT 13.03[F] at 13-79 (“It is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work.”) There is, therefore, a requirement of closer copying before infringement will be found. See, Runstadler Studios, Inc. v. MCM Ltd. Partnership, 768 F.Supp. 1292, 1297 (N.D. Ill. 1991) (“Some works…make their impact in part because of the wealth of their detail, and the pirating of their expression may be rather clearly evident. In others, the original expression is in the context of a work drawing heavily upon material in the public domain and the copyright can be characterized as ‘thin,’ or ‘weak’ to the point where analytic dissection demonstrates that all similarities in expression arise from the use of common ideas.” (citations omitted)).
Though copyright law contains no statutory formula for what constitutes infringement and no statutory exception to the “substantial similarity” test developed by the Federal Courts, the “idea/expression” dichotomy contained in Section 102(b) of the Copyright Act will likely permit a greater degree of freedom for virtual authors and virtual artists to create new virtual objects, new virtual works, and new virtual worlds based on pre-existing virtual reality materials. Because of the nature of virtual reality authorship, Federal Courts will strive even more rigorously to remove from the infringement analysis any virtual elements that derive directly from unprotected “idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of form” excluded from copyright protection under Section 102(b) of the Copyright Act.17 U.S.C. 102(b). See, Gentieu v. John Muller & Co., Inc., 712 F.Supp. 740, 744 (W.D. Mo. 1989) (“In the case at bar, the plaintiff, in using her copyrighted expression (lighting, choice of background, camera angle, etc.) has not expanded on the idea of a photograph of a naked baby any more than the sculptor who adds nothing to the idea of a plaster nude statute. This is not meant to minimize the plaintiff’s work in any way; its simplicity is its creativity. However, by utilizing her expression in such a way as to create a naked baby and nothing else the plaintiff limits her copyright protection to the identical copying of the copyrightable elements of the work.”). See also, Mazer v. Stein 347 U.S. 201 (1954).
The more realistic the virtual reality, the more likely that protection will be limited so that First Amendment freedom is not impaired. “Free speech and right of access to information under the First Amendment protects … reproduction efforts…. When factual information contained in a film is inextricably related to the film’s expression of that information, the use of the film to secure broad distribution of the facts may be permitted. “Encyclopedia Britannica Educational Corporation v. Crooks 542 F.Supp 1156, 1180 (W.D. N.Y. 1982) [citations omitted].
In virtual reality applications, it will be more common to have expression of a virtual object indistinguishable from the factual object it simulates. In such cases, the courts will have a more difficult task of determining whether copying occurred. Absent striking similarity or admitted copying, courts may not be able determine whether expression was copied when expression of an object is completely and accurately intertwined with the idea of that object. In that case, the merger doctrine may limit the scope of protection.3 NIMMER ON COPYRIGHT 13.03B. (“…given the dilemma either of protecting original expression even when that protection can be leveraged to grant an effective monopoly over the idea thus expressed, or of making the idea free to all with the concomitant result that the plaintiff loses effective copyright protection even over the precise original expression used, copyright law chooses the latter course.”)
Analogies for this defense exist within the current body of computer law. In NEC v. Intel, NEC v. Intel, 10 U.S.P.Q.2d 1177 (N.D. Cal. 1989). for example, the court held that many of the similarities observed in two hardware microcode programs were caused by functional constraints of the physical hardware, and were likely to arise even if the programs were created independently.
Similarly, idea and expression should be dissected in virtual reality cases. As discussed above, the entire arrangement of a virtual world, or its “look and feel,” is protectable, even if the idea of the objects in the world are closely intertwined with the expression of those objects. At the same time, substantial similarity between specific objects in two different worlds will not necessarily justify a finding of infringement because that a single object may not be protectable when expression and idea merge for that object. See, Apple v. Microsoft. 799 F.Supp. 1006, for a detailed discussion of several non-protectable elements in two graphical operating systems.
Because expression and fact are closely related in virtual worlds and in virtual objects, Federal Courts will extend fair use principles to permit greater freedom to virtual artists. Fair use is a judicially created “rule of reason”, originating in the late 1800’s. Encyclopedia Britannica Educational Corporation v. Crooks, 542 F.Supp. 1156, 1180 (W.D. N.Y. 1982).
The “fair use” defense is now codified in Section 107 of the Copyright Act (17 U.S.C. 107). Section 107 of the Copyright Act provides in relevant part that: the fair use of a copyrighted work … is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect of the use upon the potential market for or value of the copyrighted work.17 U.S.C. 107.
Thus the copyright laws provide a four part test to be used to determine fair use.
Notwithstanding the statutory provisions, Congress intended that the Federal Courts judicially determine fair use on a case by case basis: “Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case by case basis. “Key Maps v. Pruitt, 470 F.Supp. 33, 37 (S.D. Tex. 1978), citing Notes on the Committee of the Judiciary, House Report No, 94-1476.
Federal courts have determined that fair use “presupposes good faith and fair dealing” Id. 470 F.Supp. 33, at 38. and that “what constitutes fair use is primarily a fact question. “Encyclopedia Britannica v. Crooks, 542 F.Supp., at 1168.
The fair use doctrine has been applied to allow “parody, burlesque, and satire; scholarly research and copying; [and] …. non-commercial and non-profit educational situations” and copying allowed has ranged from “a few quotations to the photo duplication of entire essays and articles. “Id. 542 F.Supp., at 1167 and 1178 [citations omitted].
In summary, the “fair use” doctrine requires a judicial weighing of the public benefit of additional creativity and additional dissemination of information — the first two factors in Section 107 — as against the effect of a substantial taking on the marketability of a pre-existing copyrighted work — the last two factors in Section 107.Id. 542 F.Supp., at 1178.
The Supreme Court has recognized that the main purpose of the Copyright Act is for the public benefit, that is, to encourage creation and dissemination of information. Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984). Thus, Federal Courts give greater weight to the first two “public interest” factors over the last two “private interest” factors effecting authors and particular works.
Federal Courts will determine that the public interest in use and extension of virtual reality is important enough to allow copying of substantial parts of virtual worlds and perhaps complete copying of at least some virtual objects (for placement in new virtual worlds) without liability for infringement.
Though exact copying of entire virtual worlds likely will not be permitted, Federal Courts should allow a greater degree of freedom for virtual artists to incorporate virtual objects into newly created or substantially enhanced virtual worlds for both internal and commercial distribution. Historically, the fair use defense was not available for infringements in commercial cases. See, 3 NIMMER ON COPYRIGHT 13.05[D](1). (“A number of courts have held that the defense of fair use is never available to immunize copying which results in similarity which is not only substantial, but is indeed virtually complete or also verbatim.”) See also, Walt Disney Products v. Air Pirates, 581 F.2d 751 (9th Cir. 1978). In commercial cases, the profit-making motive and the competitive effect on the plaintiff’s potential market are viewed as deciding factors prohibiting application of the fair use doctrine.3 NIMMER ON COPYRIGHT 13.05[A](4).
In the short term, copying virtual objects and distributing derivative works could theoretically affect the market of the author who created the virtual object. However, as more and more virtual artists exist and as technology advances to the point that virtual objects are easily created with “camera-like” technology, little impact on markets will be created by some copying of realistic virtual objects. The trend over time would predict that the fair use doctrine will extend to permit greater freedom for the adaptation, use, display, and distribution of virtual works; however, the fair use doctrine will not extend as readily when there is copying of entirely unique or less realistic virtual objects because such copying would more likely affect a potential market and therefore be less likely to fall in the fair use category.
This view is supported by the United States Supreme Court’s recent decision in Campbell v. Acuff-Rose Music.___ U.S. ___ (1994). In Campbell, the Court held that copying a large portion of the “heart” In this case the “heart” was much of the music and the first two lines of lyrics. of the song “Pretty Woman” into a rap style song was parody and a fair use. The Court held that in order to achieve parody, enough of the original work must be copied so that the new work can be related to the original work. Additionally, the Court ruled that parody did not usurp the market of the original product and was thus eligible as a fair use.___ U.S. ___, at ___. Similarly, virtual objects could be fairly copied into other virtual works if there was not a demonstrable adverse impact on the market for the original work.
Other fair use decisions bear on infringement in virtual reality applications. In Sega v. Accolade, 24 U.S.P.Q.2d 1561 (9th Cir. 1992). Sega accused Accolade of copyright infringement when Accolade reverse engineered Sega’s computer object code in order to determine how it functioned; the Ninth Circuit held that such reverse engineering is a fair use. In reaching its decision, the Sega Court held that there is public benefit in the growth of creative expression. The Sega Court additionally held that while the author of the original work may suffer some loss of profits, the benefit of the growth of expression and entry into the market of others outweighs a small decrease in profits. Id. 24 U.S.P.Q.2d, at 1570.
As applied to virtual reality applications, Sega holds that reverse engineering of a virtual reality application’s object code is generally allowable in order to create “compatible” modules of virtual objects for that application. More generally, Sega can be interpreted to allow copying of portions of virtual works in order to extend overall expression in a new virtual world when the benefits of this outweigh the market impact on the original author’s work.
The more the copyrighted virtual object or virtual world is based on physical reality, the more easily the fair use defense could be argued; the purpose of the use would be to more closely simulate reality in a creative environment. An analogy is the fair use copying of maps. Maps have limited copyright protection because of the public domain nature of the underlying data. Key Maps v. Pruitt, 470 F.Supp., at 37.
As idea and expression become more intertwined in realistic virtual objects, Federal Courts will find that the nature of the copyrighted work allows a fair use defense. The more realistic the virtual object is, the more limited the protection will be; when protection is found and even when infringement may be found, the fair use doctrine will provide greater latitude given the nature of virtual reality applications.
The coming proliferation of virtual reality applications and their virtual objects, virtual works, and virtual worlds will generate major intellectual property litigation seeking to decide what may properly be viewed as part of the nature of the world and real life reality for all to share without limitation as against the creative effort of virtual authors and virtual artists to set forth their vision of reality within a virtual world.
In this respect, Federal Courts will struggle to maintain the proper balance between the rights of virtual authors and virtual artists, on the one hand, to exclusive control of their virtual works as against the rights of the public to share and build upon those virtual works in an environment that is designed to allow users to participate, interact, and create new forms of creative expression and new forms of user experiences in a more unlimited creative environment.
Eventually copyright law will recognize yet another dimension to protection and infringement for virtual reality applications and that is the nature of the experience imparted to the user who participates in that world. Ultimately, the originality contained in virtual creativity may need to be measured by the overall experience imparted to the user than the actual audiovisual displays or other expression presented or available from the underlying authorship.
Though Federal Courts will likely extend copyright protection to virtual worlds and even to virtual objects, more rigorous infringement standards and more expansive interpretations of the fair use doctrine will likely apply — particularly for virtual worlds and virtual objects which purposefully simulate existing real life factual information. The coming challenge for computer lawyers will be to distinguish those cases in which protection justifies licensing and those where the policies favor unrestricted use for further development of this new technology.