Judge Boudin’s Copyright Legacy
Judge Michael Boudin, who served on the U.S. Court of Appeals for the First Circuit for nearly thirty years, passed away on March 24, 2025. His obituaries focused on the “curiosity” of his younger sister Kathy Boudin, a member of the Weather Underground that served time in prison for her role in an armed robbery. Also mentioned was his authorship of the First Circuit’s unanimous decision holding the Defense of Marriage Act unconstitutional. Overlooked, however, was the heavy reliance of the Supreme Court in Google v. Oracle on Judge Boudin’s concurrence in Lotus v. Borland back in 1995.
The First Circuit panel in Borland held that the Lotus 1-2-3 command structure was a method of operation unprotected under 17 U.S.C. § 102(b), and that Borland therefore did not infringe when it incorporated the Lotus command structure into its competing spreadsheet program. Judge Boudin concurred with the panel opinion, but also wrote a concurring opinion centering on fair use rather than section 102(b). The Supreme Court in Google closely followed the reasoning Judge Boudin articulated in his concurring opinion.
Judge Boudin stated that a menu of commands “may be a creative work, but over time its importance may come to reside more in the investment that has been made by users in learning the menu and in building their own mini-programs — macros — in reliance upon the menu.” If Lotus were granted a monopoly on its menu, “users who have learned the command structure of Lotus 1-2-3 or devised their own macros are locked into Lotus, just as a typist who has learned the QWERTY keyboard would be the captive of anyone who had a monopoly on the production of such a keyboard.” Judge Boudin reasoned that “if a better spreadsheet comes along, it is hard to see why customers who have learned the Lotus menu and devised macros for it should remain captives of Lotus because of an investment in learning made by the users and not by Lotus.” Significantly, “Lotus has already reaped a substantial reward for being first.” Thus, if “the Borland program is now better, good reasons exist for freeing it to attract old Lotus customers: to enable the old customers to take advantage of a new advance, and to reward Borland in turn for making a better product.”
In view of the obvious benefits to the user resulting from withholding copyright protection from the Lotus command structure, the question for Judge Boudin was “not whether Borland should prevail but on what basis.” He observed that the majority’s treatment of the command structure as an unprotectable method of operation under 17 U.S.C. § 102(b) “is as good, if not better, than any other” approach.
Nonetheless, he then explored permitting Borland’s use under the fair use doctrine. He reasoned that Borland’s use should be permitted because Borland was “merely trying to give former Lotus users an option to exploit their own prior investment in learning or in macros.” He believed that the fair use doctrine could be “adapted” to allow “new purposes” such as preventing user lock-in.
That is precisely what the Supreme Court did in Google; it adapted fair use to prevent user and programmer lock-in. It did so in a manner consistent with Judge Boudin’s concurrence, reflecting his understanding of the value created by computer program users and the danger of software firms appropriating that value by locking users into their product line. When discussing the second fair use factor, the nature of the work, the Court observed that the value of the declaring code “in significant part derives from the value that those who do not hold copyrights, namely, computer programmers, invest of their own time and effort to learn the API’s system.” This echoes Judge Boudin’s statement that a menu’s “importance may come to reside more in the investment that has been made by users in learning the menu and in building their own mini-programs.”
Similarly, the Court’s analysis of market effects of the use—the fourth fair use factor—derived largely from Judge Boudin’s concurring opinion. The Court discounted Oracle’s potential loss of revenue resulting from programmers being locked into the Java SE environment. The Court observed that “when a new interface, like an API or a spreadsheet program, first comes on the market, it may attract new users because of its expressive qualities.” However, as time passes, “it may be valuable for a different reason, namely, because users, including programmers, are just used to it. They have already learned how to work with it.” As authority for this proposition, the Court cited Judge Boudin’s concurrence in Borland.
Judge Boudin’s concurring opinion revealed to the Supreme Court the enduring realities of the software industry. Lotus, Sun, and any other first mover has an enormous competitive advantage over second-comers; a user does not want to abandon its significant investment in the first mover’s platform. If the first mover could employ copyright to prevent the development of interoperable software, the user would be at the first mover’s mercy. Knowing that its users were locked into its platform, the first mover would charge higher prices for complementary products and innovate more slowly. The Court, like Judge Boudin, recognized that such a result was antithetical to the purpose of copyright.
