Following the shock news last month that Ashton-Tate Corp’s original copyright for dBase III Plus was invalid, thus allowing Fox Software Inc to use chunks of the software with impunity (CI No 1,577), Ashton-Tate is now in a position to articulate why it feels the judge was in error. The whole issue revolves around the question: how do you copyright something? Ashton-Tate argues that – in contrast to patent law – copyright law states that copyright protection comes into existence as soon as a piece of work is complete – in other words as soon as the last line of code has been typed and the file saved, the copyright for software is already in existence. Consequently, the moment that both dBase II and dBase III came into existence they were covered by copyright. However, Ashton-Tate took the further precaution of filing US copyright registration forms. The crux of the company’s disagreement with the judge hinges on this point – for the judge ruled that misfiling this form extinguished the copyrights. Ashton-Tate believes that this ruling exhibits a fundamental misunderstanding of the copyright law. Furthermore, it dismisses the idea that the fact that dBase contains some elements of the public domain program Jet Propulsion Laboratory Document Information System, JPLDIS, invalidates its copyright. Ashton gives the example of the use of the face of the Mona Lisa in another artist’s copyrighted work – and another example would be songs that quote out-of-copyright music such as Mendelssohn’s wedding march. For, Ashton-Tate argues, no one can copy the new work to any substantial degree, even though another artist could use the Mona Lisa face itself in his own work. Ashton-Tate considers that its use of JPLDIS is similar, although it does not think that it is of relevance to the present case, since dBase III Plus is a third generation product, when a lot of time and effort had gone into developing new copyrightable expression. However, dBase II was built around 33 of the 58 computer commands that went to make up that mainframe software program, although none of its code was used. Ashton-Tate will not discuss the financial costs of pursuing the matter further, but it says it is asking Judge Terry Hatter to reconsider his ruling and if that is not successful, it will seek an expedited appeal on the grounds that the court misapplied applicable copyright law. Putting a brave face on the situation, Ashton-Tate claims that even if it loses the case it has a two to three year lead on clone-type database products entering the market.
