JUSTICE DEPARTMENT FORCES BORLAND TO GIVE UP USER INTERFACE COPYRIGHT CLAIMS AS PART OF ASHTON-TATE ACQUISITION
January 1992
In the past we have reported on Ashton-Tate's efforts to protect the dBase user interface and language through copyright infringement claims against Fox Software and Santa Cruz Operation. Now that Borland has purchased Ashton-Tate, we might expect Borland to continue such suits. However, as a result of federal government intervention in the acquisition Borland has agreed to stop pursuing claims of infringement of the dBase user interface.
In the past we have reported on Ashton-Tate's copyright infringement claims against Fox Software and Santa Cruz Operation, where Ashton-Tate claims that these companies' programs infringed Ashton-Tate's copyright in the dBase user interface and language. Borland has now purchased Ashton-Tate, but the events surrounding that acquisition provide an interesting insight into how developments in software copyright law have affected the government's perception of large software company mergers. One of the Justice Department's conditions for withdrawing its suit and permitting the merger to be consummated was that Borland agree not to bring any copyright actions claiming infringement of the dBase user interface. The Justice Department pointed out that the merger would give Borland a 60% marketshare of relational database management software. Arguing that claims of copyright infringement involving the dBase user interface had previously prevented clone developers from competing, the Justice Department required Borland to forgo such claims as a pre-condition to this merger.
To our knowledge, this is the first time that the Justice Department has required, as a condition to its consent to a merger, that the merging companies agree that they will not enforce otherwise legitimate software copyright claims.
In addition to the interesting antitrust and merger aspects of the case (and their implications for future mergers in the software industry), there were several tantalizing issues in Ashton-Tate's suit against Fox, the resolution of which would have been of great interest. Two of these issues were whether the dBase command language could be protected by copyright law (no court has ever ruled on whether a language may be so protected), and whether Ashton-Tate's suit was barred, and possibly its copyright lost, by reason of having misused its copyright. Unfortunately, court opinions on these issues will have to await future cases involving a user interface and language other than dBase.