of expression analysis. Suppose defendant copied plaintiff's abstract painting composed entirely of geometric forms arranged in an original pattern. The alleged infringer could argue that each expressive element (i.e., the geometric forms) is unprotectible under the functionality, merger, scenes a faire, and unoriginality theories and, thus, all elements should be excluded prior to the substantial similarity of expression analysis. Then, there would be nothing left for purposes of determining substantial similarity of expression. In this example, elimination of "unprotectible" elements would result in a finding of no copyright infringement, which would be clearly inconsistent with the copyright law's purpose of providing incentives to authors of original works.
Accordingly, the court concludes that even if elements are found "unprotectible," they should not be eliminated from the substantial similarity of expression analysis. Instead, if it is determined that the defendant used the unprotectible elements in an arrangement which is not substantially similar to the plaintiff's work, then no copyright infringement can be found. If, on the other hand, the works are deemed substantially similar, then copyright infringement will be established even though the copyrighted work is composed of unprotectible elements. There is simply no other logical way of protecting an innovative arrangement or "look and feel" of certain works.
In the presentation of their respective positions, the court urges the parties to review and consider J. Wiley, "Copyright at the School of Patent," 58 U.Chi.L.Rev. 119 (1991). The author's effort to link copyright analysis to the underlying purpose of the law strikes the undersigned as an approach which might well afford a sound basis for decision of the substantial similarity issues presented here.
III. FURTHER PROCEEDINGS.
The court notes the correspondence of the parties concerning Apple's revised Supplemental List of Similarities Regarding Windows 3.0 and NewWave 3.0: letter to the court from David T. McDonald, dated August 1; letter to the court from Chris R. Ottenweller, dated August 2. The clerk is directed to file these letters as part of the record herein. In accordance with the apparent understanding of the parties, Apple is given until August 15, 1991 to file its supplemental list.
The court has received letters dated August 1 and 12 from Mr. Ottenweller, one of Apple's counsel, and letters dated August 6 and 8 from Mr. Marshall and Mr. McDonald, respectively, concerning a discovery dispute pertaining to interrogatories. In consideration of the complexity of this case, the court suspends the 35 interrogatory limit established by Local Rule 230-1(b). Each party shall be allowed a maximum of 350 interrogatories, including subparts. The court, however, admonishes the parties not to abuse this leave. In the court's view, interrogatories are best suited for purposes of identifying specific facts and sources of information.
The court notes with some apprehension that counsels' recent letters to the court suggest that the parties have been engaging in what appears to be rather unproductive skirmishing concerning discovery. Among the matters in contention are dates, times and length of certain depositions. If counsel are unable to proceed efficiently and professionally with discovery, the court will consider appointment of a discovery master pursuant to F.R.Civ.P. 53 to monitor discovery at the parties' expense. In order to help expedite matters, the court orders that no deposition of any witness shall exceed 8 hours in duration without leave of the court. Parties are advised to report to the court obstructionist tactics of their adversaries during these proceedings.
Finally, the court appreciates the parties' attempts to illustrate the programs in suit in videotaped demonstrations. The resolution of the tapes is low, however, making it difficult to discern outlines, grey borders, and other details. In order to enhance the court's understanding of the works in suit and its ability to evaluate the issues, the court requests the parties to make available at their earliest possible convenience, the works in suit, the hardware, and instruction necessary to provide the court with a working familiarity with the programs and their operation. Counsel are directed to meet and confer to make appropriate arrangements.