i) whether and to what extent the plaintiff's computer spreadsheet program, Lotus 123, was copyrightable and;.

             ii) whether the defendants' VPPlanner was, an infringing work containing elements substantially similar to copyrightable elements of 123, . .

             b) Literal and Non Literal Aspects of Computer Programs.

             Keeton J commenced his judgment with an excellent overview of the operational aspects of computers and then set about explaining the distinction between literal and non literal aspects of computer programs and the relevance of such a distinction to the case at hand. He explained: .

             Defendants vigorously dispute . the copyrightability of any nonliteral elements of computer programs. That is, defendants assert that only literal manifestations of computer programs are copyrightable. Plaintiff, on the other hand, maintains that copyright protection extends to all elements of computer programs that embody original expression, whether literal or nonliteral, including any original expression embodied in a program's "user interface." .

             One difficulty with plaintiff's argument is the amorphous nature of "nonliteral" elements of computer programs. Unlike the written code of a program or a flowchart that can be printed on paper, nonliteral elements including such elements as the overall organization of a program, the structure of a program's command system, and the presentation of information on the screen may be less tangibly represented. Whether these elements are copyrightable, and if so, how the nonliteral elements that are copyrightable may be identified, are central to deciding this case.

             c) The Statutory Framework .

             Judge Keeton then turned to appraise the statutory protection of computer programs. He cited 17 U.S.C. s 102 (a) which provides that copyright exists ".in original works of authorship fixed in any tangible medium of expression .". "Original" he explained was not to be limited to works that are novel or unique (which is closer to the standard in patent law); originality refers to works created independently by an author regardless of their literary or aesthetic merit.