Locke for the Masses: Property Rights and the Products of Collective Creativity

A concurring opinion in a First Circuit copyright case from the 1990s caught my attention when it came out, and I have been rolling its ideas around in my mind ever since. In the case, the court denied copyright protection to the menu command structure of the Lotus 1-2-3 spreadsheet program. The majority’s holding was straightforward, and came right out of statutory law. But the concurrence by Judge Boudin was different. In it he talked of the importance of maintaining a commons, but his logic stressed that much of the value of Lotus’ menus was created by the efforts of those who used the 1-2-3 program: Requests for the protection of computer menus present [a] concern with fencing off access to the commons in an acute form. A new menu 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.

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