Apple Computer, Inc. v. Microsoft Corp.

ORDER GRANTING MOTION FOR RECONSIDERATION

I. DEFENDANTS’ MOTION FOR RECONSIDERATION.

Defendants Microsoft and Hewlett-Packard (“HP”) move the court to reconsider its dismissal of defendants’ affirmative defense that the elements of Apple’s copyrighted works in suit are not sufficiently original to warrant copyright protection. 759 F.Supp. 1444 . In essence, defendants seek to use lack of originality of constituent elements as a means of eliminating those elements from the substantial similarity of expression analysis. Defendants rely heavily on dicta from Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 548, 105 S.Ct. 2218, 2224 , 85 L.Ed.2d 588 (1985) and Feist Publications v. Rural Telephone Service Co., — U.S. —, 111 S.Ct. 1282 , 113 L.Ed.2d 358 (1991) for the proposition that the copyright laws do not prohibit subsequent copying of unoriginal constituent elements from a prior author’s work. Defendants also cite two Second Circuit cases in which lack of originality of component elements limited the scope of copyright protection. In Silverman v. CBS, Inc., 870 F.2d 40 (2d Cir.1989), the court concluded that the scope of protection afforded by the copyrights…