One Reason You Might Still Be Paying $120 for a TI-89 Calculator: Copyright

A story about calculators made the nerd-nostalgia rounds recently: Why are today’s teenagers still using TI-83 graphing calculators? The chunky devices are far less powerful than the average smartphone, yet cost $100. There’s literally nothing in them that a high school student’s smartphone can’t already surpass, and they can’t do anything that a smartphone can’t already do.

There’s a part of me that wants to wax nostalgic about their build quality, the tactile buttons and the physical authority of the sliding cover (my gray TI-82, circa 1994, was, for the first several years of its life, repeatedly slapped into place in imitation of a handgun magazine). But a marginally nicer user experience isn’t what’s getting cash-strapped students to shell out for it. Instead, it’s a sort of path dependency as explained in the Tech.Mic story:

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The primary driver of Texas Instruments’ incumbency: TI-series calculators have been so prominent for so long, they’ve worked their way into the bloodstream of mathematics instruction in the U.S.

Pearson textbooks feature illustrations of TI-series calculators alongside chapters so students can use their TI calculator in conjunction with the lesson plan. The calculators also have a significant learning curve, and moving students over to new technology is a risky proposition when success in the classroom is so tied to the technology being used.

TI calculators have been a constant, essential staple in the slow-moving public education sector. Students and teachers are so used to generations of students learning the familiar button combos and menu options that TI provides a computer program that perfectly resembles the button layout of the TI-83.

However, even if teachers wanted to be bold and bring in better technology, they would end up right back at square one because of that infamous force in American education: standardized testing.

But there’s absolutely nothing in the operations of the calculator—the things that it does—that makes it unique. Math works anywhere in the universe, and certainly regardless of what device it’s working on. That’s part of what makes it math.

But the textbooks, students, teachers, and standardized tests aren’t just teaching the same math, or even the same way of conceptualizing the mathematical concepts; they’re teaching specifically to a particular layout of keys and menus—the user interface of the calculator.

That’s why something like the free Desmos graphic calculator app, which Jack Smith mentions in his article, doesn’t completely replace the TI-83: its interface is different, and requires some relearning. (Consider the difficulty you may have faced in switching from Windows to Mac, or from an iPhone to an Android-based phone.)

But there’s zero reason that the TI layout and interface can’t be replicated entirely on a smartphone, possibly saving students cumulative millions of dollars; or, for those lacking smartphones of their own, cheaper hardware that emulates the same thing.

Zero technical reason, that is.

The QWERTY keyboard isn’t copyrighted; even as people have, over the years, added modernizing changes to it (SHIFT + 6 gives us ^ today, while on an IBM Selectric typewriter, it gave you ¢), anyone is free to copy another manufacturer’s decision to stick the arrow keys under, or to the right of, the SHIFT key, have one or two rows of function keys, or move a mute button around. The interface is free for copying and adaptation.

There’s absolutely nothing in the operations of the calculator—the things that it does—that makes it unique

By the same token, the layout of a graphing calculator shouldn’t be copyrighted, either. Sure, someone gave some thought into where they might want to put the arithmetic function buttons in relation to the trigonometric, exponent, and square root buttons, but that type of arrangement, thoughtful as it might be, isn’t the sort of thing that gets a copyright.

The same thing is true even of the arrangement of the menus within the calculator itself. The landmark case on whether the arrangement of menus in software can be copyrighted is Lotus v. Borland, a federal appeals case from 1995. This case held that copying the structure of the menu commands from an existing spreadsheet program wasn’t copyright infringement.

When it wrote its own spreadsheet program, Borland wanted its customers to be able to switch over from Lotus easily. To do this, Borland made sure that its menus were structured in the same way and had the same commands in them—even though the underlying programming in the spreadsheets was written anew. This way, users could find the commands quickly if they had already learned the Lotus interface, and, even more importantly, if they had written sets of instructions (either for humans or for computers to follow) that worked on Lotus’s spreadsheet, those instructions would work exactly the same way in the Borland spreadsheet.

This is just like the layout of the calculators. In fact, at one point in the opinion, the court explains the non-copyrightable nature of the menu commands by comparing them to another sort of device interface: the controls on a VCR:

In many ways, the Lotus menu command hierarchy is like the buttons used to control, say, a videocassette recorder (“VCR”). A VCR is a machine that enables one to watch and record videotapes. Users operate VCRs by pressing a series of buttons that are typically labeled “Record, Play, Reverse, Fast Forward, Pause, Stop/Eject.” That the buttons are arranged and labeled does not make them a “literary work,” nor does it make them an “expression” of the abstract “method of operating” a VCR via a set of labeled buttons. Instead, the buttons are themselves the “method of operating” the VCR.

What does this mean for the calculators? For one thing, it means that someone might be able to make TI-83 clones, whether in software or actually making copycat calculators. It’s hard to say whether or not Texas Instruments would get litigious about it, or instead recognize that it’ll have to compete with new upstarts in other ways. (Incidentally, a very cursory search seems to indicate that Texas Instruments hasn’t registered a copyright on its calculator layouts—that doesn’t mean the company can’t try in the future, though.)

TI-83 clones could be a good opportunity for someone to improve the cost of education or help schools get out of an expensive path dependency—and with so much money at stake, it might just be lucrative enough for someone to try.

But the copyright question goes beyond just saving money on calculators. It also shows us one more way that copyright can go too far. We’re so used to thinking about other copyright excesses, like extremely long terms or overly harsh penalties, or people assuming completely innocuous fair uses, such as sharing a video of your dancing baby on YouTube, are infringing.

But assuming that things like calculator layouts or software menus are expressive works, just because someone designed them, has a real cost, too. The fear of that copyright suit might not just be costing high school students; it could cost lots of other software consumers, too.

That’s because a recent court case is casting some doubt on the Lotus v. Borland decision. In Google v. Oracle, a different federal appeals court held that Oracle could proceed with its lawsuit against Google for copying the structure and names of its “Application Programming Interface,” or API. An API is an interface, just like the keys on a keyboard (or a calculator), and just like the menu commands in a spreadsheet program. Like Borland wanting its users to be able to migrate from Lotus products, Google wanted programmers to be able to migrate to its Android environment from Oracle’s Java. So, just like Borland before it, Google copied the structure and names of the commands from the earlier system.

The fear of that copyright suit might not just be costing high school students; it could cost lots of other software consumers, too

Unlike the 1995 case, though, Google v. Oracle has so far gone the other way—the court said that the copying of these structures and commands was copying something expressive enough to be an infringement, and has allowed the case to continue (right now, other important issues, like whether or not the copying was a fair use, are still being decided). In the meantime, it seems that, while some interfaces (keyboards, spreadsheet menu structures and commands) can’t be copyrighted, others (API structures and commands) can be.

APIs, though, are everywhere; they’re how different computer programs talk to one another. Allowing them to be copyrighted opens up a target-rich environment for someone who’s bought up a lot of copyrights to start demanding exorbitant licensing fees from all its customers and competitors. And that could get a lot more expensive both inside and out of the classroom.

Sherwin Siy is a lawyer and VP of Legal Affairs for Public Knowledge, a digital rights organization in Washington, DC.