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The many ways confusion

From: rjack
Subject: The many ways confusion
Date: Fri, 25 May 2007 13:50:43 -0500
User-agent: Thunderbird (Windows/20070326)

If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have "merged" and therefore the expression is not protectable by copyright.

That has nothing to do with whether there is a patent that covers a
method that can be implemented in software. There is, in general, a variety of ways to implement ("express") the method, and
therefore each implementation can have its own copyright.

See Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004):

"Nor does Nimmer support the district court’s “a number of different
ways” reasoning. As a matter of practice, Nimmer is correct that courts most commonly discuss the idea-expression dichotomy in considering whether an original work and a partial copy of that work are“substantially similar” (as part of prong two of the infringement test), since the copyrightability of a work as a whole (prong one) is less frequently contested. But the idea-expression divide figures into the substantial similarity test not as a measure of “similarity”; it distinguishes the original work’s protectable elements from its unprotectable ones, a distinction that allows courts to determine whether any of the former have been copied in substantial
enough part to constitute infringement."

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