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Re: Is public domain possible?

From: Alexander Terekhov
Subject: Re: Is public domain possible?
Date: Sat, 13 Sep 2008 14:56:21 +0200

Tim Smith wrote:
> In article
> <>,
>  Jerry <> wrote:
> > On this page ...
> >
> >
> > Under: "Public domain software" ...
> >
> > Is this statement:
> >
> > --- [ begin quote ] ---
> > Under the Berne Convention, which most countries have signed, anything
> > written down is automatically copyrighted. This includes programs.
> That statement is not quite correct.  For example, I wrote down a
> grocery list the other day, and it did not automatically become
> copyrighted, as it is not sufficiently original to be eligible for
> copyright protection.
> A better statement would be that a work that is eligible for copyright
> protection becomes copyrighted as soon as it is written down.

Note also that spcifically in "computer program" works context *a lot*
of expression is NOT eligible for copyright
protection at all:

- The element's expression was dictated by reasons of efficiency, such
as when it is the best way of performing a particular function.

- The element's expression was dictated by external factors, such as
using an existing file format or interoperating with another program.

- The element's expression is a conventional way of writing something in
the particular programming language or machine running the program.

- The element, at the particular level of abstraction, is an
unprotectable process and not protectable expression.

- The element is taken from the public domain or is an unprotectable

Any protection for elements dictated by efficiency or external factors
or processes must come from patents or trade secrets, if at all, and not
from copyright.

The district court initially concluded that Lexmark had established a
likelihood of success on its copyright infringement claim for SCC’s
copying of its Toner Loading Program. Computer programs are “literary
works” entitled to copyright protection, the court reasoned, and the
“requisite level of creativity” necessary to establish the originality
of the programs “is extremely low.” D. Ct. Op. ¶¶ 9, 11, at 23. Because
the Toner Loading Program could be written in multiple ways, the
district court added, SCC had not rebutted the presumption of validity
created by Lexmark’s copyright registration for the Toner Loading
Program. Id. ¶ 13–14, at 24; see also 17 U.S.C. § 410(c).

In coming to this conclusion, the district court rejected each of the
defenses asserted by SCC. First, the district court determined that the
Toner Loading Program was not a “lock-out code” (and unprotectable
because its elements are dictated by functional compatibility
requirements) since “the use of any Toner Loading Program could still
result in a valid authentication sequence and a valid checksum.” Id. ¶
22, at 26. But even if the Toner Loading Program were a “lock-out code,”
the district court believed copyright infringement had still taken place
because “‘[s]ecurity systems are just like any other computer program
and are not inherently unprotectable.’” Id. ¶ 25, at 27 (quoting Atari
Games Corp. v. Nintendo of Am., Inc., Nos. 88-4805 & 89-0027, 1993 WL
214886, at *7 (N.D. Cal. Apr. 15, 1993) (“Atari II”)). Second, the court
rejected SCC’s fair use defense in view of the commercial purpose of the
copying, the wholesale nature of the copying and the effect of the
copying on the toner cartridge market. Id. at 28–30. Third, the district
court rejected SCC’s argument that Lexmark was “misus[ing]” the
copyright laws “to secure an exclusive right or limited monopoly not
expressly granted by copyright law.” Id. at 38–39.


As this case comes to the court, the parties agree that computer
programs may be entitled to copyright protection as “literary works”
under 17 U.S.C. § 101 and may be protected from infringement under 17
U.S.C. § 106. And that is true with respect to a computer program’s
object code (the binary code—a series of zeros and ones—that computers
can read) and its source code (the spelled-out program commands that
humans can read). See 17 U.S.C. § 101 (defining “computer program[s]” as
“set[s] of statements or instructions to be used directly or indirectly
in a computer in order to bring about a certain result”); 17 U.S.C. §
117(a) (describing “limitations on exclusive rights” for “computer
programs” and providing that infringement does not occur when a copy of
a computer program is made either “as an essential step in the
utilization of the computer program” or “for archival purposes”); H.R.
Rep. No. 1476 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667
[hereinafter House Report] (“The term ‘literary works’ . . . includes .
. . computer programs to the extent that they incorporate authorship in
the programmer’s expression of original ideas, as distinguished from the
ideas themselves.”); accord Atari Games Corp. v. Nintendo of Am., Inc.,
975 F.2d 832, 838 (Fed. Cir. 1992) (“Atari I”); Johnson Controls, Inc.
v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989);
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1247–49
(3d Cir. 1983).

The parties also agree that Lexmark has registered the Toner Loading
Program with the Copyright Office, which is an infringement suit
prerequisite, see 17 U.S.C. § 411(a), and which constitutes prima facie
evidence of the copyright’s validity, see id. § 410(c). And the parties
agree that SCC shoulders the burden of rebutting the presumptive
validity of Lexmark’s copyright. See Hi-Tech Video Prods., Inc. v.
Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995).

The parties also share common ground when it comes to most of the
general principles of copyright infringement applicable to this case. A
plaintiff may establish a claim of copyright infringement by showing (1)
ownership of a valid copyright in the computer program at issue (here,
the Toner Loading Program) and (2) that the defendant copied protectable
elements of the work. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991); Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir.
2003). The first prong tests the originality and non-functionality of
the work, see M.M. Bus. Forms Corp. v. Uarco, Inc., 472 F.2d 1137, 1139
(6th Cir. 1973), both of which are presumptively established by the
copyright registration. The second prong tests whether any copying
occurred (a factual matter) and whether the portions of the work copied
were entitled to copyright protection (a legal matter). See
Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 534–35 &
n.14 (5th Cir. 1994); see generally M. Nimmer & D. Nimmer, Nimmer on
Copyright § 13.01[B] (2003) [hereinafter Nimmer]. If no direct  evidence
of copying is available, a claimant may establish this element by
showing that the defendant had access to the copyrighted work and that
the copyrighted work and the allegedly copied work are substantially
similar. Kohus, 328 F.3d at 853–54. As to the first prong, the Supreme
Court has instructed that “[o]riginal . . . means only that the work was
independently created by the author (as opposed to copied from other
works), and that it possesses at least some minimal degree of
creativity,” even if the work is not a “novel” one. Feist, 499 U.S. at
345–46 (originality requires both “independent creation plus a modicum
of creativity”). And although constitutionally mandated, the threshold
showing of originality is not a demanding one. Id. at 345 (“To be sure,
the requisite level of creativity is extremely low; even a slight amount
will suffice.”).

But even if a work is in some sense “original” under § 102(a), it still
may not be copyrightable because § 102(b) provides that “[i]n no case
does copyright protection for an original work of authorship extend to
any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of [its] form.” 17 U.S.C. § 102(b).
This provision embodies the common-law idea-expression dichotomy that
distinguishes the spheres of copyright and patent law. “[U]nlike a
patent, a copyright gives no exclusive right to the art disclosed;
protection is given only to the expression of the idea—not the idea
itself.” Mazer v. Stein, 347 U.S. 201, 217 (1954); see also Baker v.
Selden, 101 U.S. 99, 101–02 (1880) (explaining that while a book
describing a bookkeeping system is worthy of copyright protection, the
underlying method described is not); Computer Assocs. Int’l, Inc. v.
Altai, Inc., 982 F.2d 693, 703 (2d Cir. 1992) (“It is a fundamental
principle of copyright law that a copyright does not protect an idea,
but only the expression of the idea.”). While this general principle
applies equally to computer programs, id.; see also House Report at 5667
(extending copyright protection to computer programs only “to the extent
that they incorporate authorship in programmer’s expression of original
ideas, as distinguished from ideas themselves”), the task of separating
expression from idea in this setting is a vexing one, see Altai, 982
F.2d at 704 (“The essentially utilitarian nature of a computer program
further complicates the task of distilling its idea from its
expression.”); Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510, 1524
(9th Cir. 1992); see also Lotus Dev. Corp. v. Borland Int’l, Inc., 49
F.3d 807, 819–20 (1st Cir. 1995) (Boudin, J., concurring). “[C]ompared
to aesthetic works, computer programs hover even more closely to the
elusive boundary line described in § 102(b).” Altai, 982 F.2d at 704.


In ascertaining this “elusive boundary line” between idea and
expression, between process and nonfunctional expression, courts have
looked to two other staples of copyright law—the doctrines of merger and
scènes à faire. Where the “expression is essential to the statement of
the idea,” CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc.,
44 F.3d 61, 68 (2d Cir. 1994); see also Lotus Dev., 49 F.3d at 816 (“If
specific words are essential to operating something, then they are part
of a ‘method of operation’ and, as such, are unprotectable.”), or where
there is only one way or very few ways of expressing the idea, Warren
Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1519 n.27 (11th Cir.
1997), the idea and expression are said to have “merged.” In these
instances, copyright protection does not exist because granting
protection to the expressive component of the work necessarily would
extend protection to the work’s uncopyrightable ideas as well. See Gates
Rubber Co. v. Bando Chem. Indus., Ltd.,, 9 F.3d 823, 838 (10th Cir.
1993); see also Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film
Corp., 361 F.3d 312, 319 n.2 (6th Cir. 2004) (noting that where idea and
expression are intertwined and where non-protectable ideas predominate,
expression is not protected); see generally Nimmer § 13.03[B][3]. For
computer programs, “if the patentable process is embodied inextricably
in the line-by-line instructions of the computer program, [ ] then the
process merges with the expression and precludes copyright protection.”
Atari I, 975 F.2d at 839–40; see, e.g., PRG-Schultz Int’l, Inc. v. Kirix
Corp., No. 03 C 1867, 2003 WL 22232771, at *4 (N.D. Ill. Sept. 22, 2003)
(determining that copyright infringement claim failed because expression
merged with process in computer software that performed auditing tasks).

For similar reasons, when external factors constrain the choice of
expressive vehicle, the doctrine of “scènes à faire”—“scenes,” in other
words, “that must be done”—precludes copyright protection. See Twentieth
Century Fox Film, 361 F.3d at 319–20; see generally Nimmer §
13.03[B][4]. In the literary context, the doctrine means that certain
phrases that are “standard, stock, . . . or that necessarily follow from
a common theme or setting” may not obtain copyright protection. Gates
Rubber, 9 F.3d at 838. In the computer-software context, the doctrine
means that the elements of a program dictated by practical
realities—e.g., by hardware standards and mechanical specifications,
software standards and compatibility requirements, computer manufacturer
design standards, target industry practices, and standard computer
programming practices—may not obtain protection. Id. (citing case
examples); see Sega Enters., 977 F.2d at 1524 (“To the extent that a
work is functional or factual, it may be copied.”); Brown Bag Software
v. Symantec Corp., 960 F.2d 1465, 1473 (9th Cir. 1992) (affirming
district court’s finding that “[p]laintiffs may not claim copyright
protection of an . . . expression that is, if not standard, then
commonplace in the computer software industry”). As “an industry-wide
goal,” programming “[e]fficiency” represents an external constraint that
figures prominently in the copyrightability of computer programs. Altai,
982 F.2d at 708.

Generally speaking, “lock-out” codes fall on the functional-idea rather
than the original-expression side of the copyright line. Manufacturers
of interoperable devices such as computers and software, game consoles
and video games, printers and toner cartridges, or automobiles and
replacement parts may employ a security system to bar the use of
unauthorized components. To “unlock” and permit operation of the primary
device (i.e., the computer, the game console, the printer, the car), the
component must contain either a certain code sequence or be able to
respond appropriately to an authentication process. To the extent
compatibility requires that a particular code sequence be included in
the component device to permit its use, the merger and scènes à faire
doctrines generally preclude the code sequence from obtaining copyright
protection. See Sega Enters., 977 F.2d at 1524 (“When specific
instructions, even though previously copyrighted, are the only and
essential means of accomplishing a given task, their later use by
another will not amount to infringement.”) (quoting National Commission
on New Technological Uses of Copyrighted Works, Final Report 20 (1979))
(emphasis added); Atari Games Corp. v. Nintendo of Am., Inc., Nos.
88-4805 & 89-0027, 1993 WL 207548, at *1 (N.D. Cal. May 18, 1993)
(“Atari III”) (“Program code that is strictly necessary to achieve
current compatibility presents a merger problem, almost by definition,
and is thus excluded from the scope of any copyright.”).

In trying to discern whether these doctrines apply, courts tend to
“focus on whether the idea is capable of various modes of expression.”
Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 (5th Cir. 1992)
(quoting Franklin Computer, 714 F.2d at 1253); Atari I, 975 F.2d at 840
(“The unique arrangement of computer program expression which generates
[the] data stream does not merge with the process so long as alternate
expressions are available.”). The question, however, is not whether any
alternatives theoretically exist; it is whether other options
practically exist under the circumstances. See Altai, 982 F.2d at 708
(“While, hypothetically, there might be a myriad of ways in which a
programmer may effectuate certain functions within a program . . .
efficiency concerns may so narrow the practical range of choice as to
make only one or two forms of expression workable options.”); Atari I,
975 F.2d at 840 (noting that “no external factor dictated the bulk of
the program” and finding the program copyrightable). In order to
characterize a choice between alleged programming alternatives as
expressive, in short, the alternatives must be feasible within
real-world constraints.

The Supreme Court’s decision in Feist helps to illustrate the point. In
Feist, the alleged infringer had included 1,309 of the plaintiff’s
alphabetically-organized telephone book listings in its own telephone
directory. 499 U.S. at 344. The facts comprising these listings, it was
clear, theoretically could have been organized in other ways—for
instance, by street address or phone number, or by the age or height of
the individual. But by virtue of tradition and settled expectations, the
familiar alphabetical structure copied by the defendant amounted to the
only organizational option available to the defendant. Id. at 363. For
these reasons, the Supreme Court determined that alphabetical phone
listings did not satisfy the low threshold of originality for copyright
protection. Id.; see Altai, 982 F.2d at 711 (noting that although Feist
dealt with factual compilations under 17 U.S.C. § 101, the decision’s
“underlying tenets apply to much of the work involved in computer
programming” under 17 U.S.C. § 102(a)).


In our view, the district court committed three related legal errors in
determining that Lexmark had a likelihood of prevailing on its copyright
claim with respect to the Toner Loading Program. First, the district
court concluded that, because the Toner Loading Program “could be
written in a number of different ways,” it was entitled to copyright
protection. D. Ct. Op. ¶ 40, at 32. In refusing to consider whether
“external factors such as compatibility requirements, industry
standards, and efficiency” circumscribed the number of forms that the
Toner Loading Program could take, the district court believed that the
ideaexpression divide and accompanying principles of merger and scènes à
faire play a role only in the “substantial similarity” analysis and do
not apply when the first prong of the infringement test
(copyrightability) is primarily at issue. Id. ¶ 37, at 31. In taking
this path, the district court relied on cases invoking Nimmer’s
pronouncement that the idea-expression divide “constitutes not so much a
limitation on the copyrightability of works, as it is a measure of the
degree of similarity that must exist between a copyrightable work and an
unauthorized copy.” Nimmer § 2.03[D]; see D. Ct. Op. at 31. And in
concluding more generally that the copyrightability of a computer
program turns solely on the availability of other options for writing
the program, the court relied on several cases from other circuits. See,
e.g., Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521, 525
(9th Cir. 1984); Franklin Computer, 714 F.2d at 1253; Whelan Assocs.,
Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1240 (3d Cir. 1986);
E.F. Johnson Co. v. Uniden Corp. of Am., 623 F. Supp. 1485, 1502 (D.
Minn. 1985).

This reasoning, to start with, conflicts with Feist. As the Supreme
Court’s recent decision suggests, one does not satisfy the originality
requirement for copyright protection merely by showing that the work
could have been put together in different ways. Just as it failed to
suffice in Feist that the author of the competing telephone book could
have organized the listings in some manner other than the individual’s
last name, so it does not suffice here that SCC could have written the
Toner Loading Program in some other way. As in Feist, the court must ask
whether the alternative ways of putting together the competing work are
feasible in that setting.

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. Both prongs of the infringement test, in other
words, consider “copyrightability,” which at its heart turns on the
principle that copyright protection extends to expression, not to ideas.
See Brown Bag Software, 960 F.2d at 1475–76 (noting that
copyrightability is an aspect of both parts of the infringement test);
see also Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1545 (11th Cir. 1996)
(deciding that district court erred by not permitting consideration of
merger, scènes à faire doctrines command structure is copyrightable in
light of § 102(b)’s limitation); Whelan Assocs., 797 F.2d at 1236–37
(discussing scènes à faire doctrine in considering copyrightability of
computer program structure); Franklin Computer, 714 F.2d at 1253
(discussing merger in context of copyrightability of computer operating
system program). When a work itself constitutes merely an idea, process
or method of operation, or when any discernible expression is
inseparable from the idea itself, or when external factors dictate the
form of expression, copyright protection does not extend to the work.
See Bateman, 79 F.3d at 1546 n.28 (“Compatibility and other
functionality challenges to originality . . . are applied so as to deny
copyright protection to a particular work or portion of a work.”)
(emphasis added); Mason, 967 F.2d at 138 n.5 (rejecting argument that
merger doctrine applies only to question of infringement and noting that
“this court has applied the merger doctrine to the question of

Neither do the cited cases support the district court’s initial frame of
reference. Franklin Computer, 714 F.2d 1240, and Formula International,
725 F.2d 521, involved copies of Apple’s operating system program—a
program whose size and complexity is to the Toner Loading Program what
the Sears Tower is to a lamppost. Given the nature of the Apple program,
it would have been exceedingly difficult to say that practical
alternative means of expression did not exist and indeed no defendant in
the cases advanced that argument. And Franklin Computer, 714 F.2d at
1253, and Whelan Assocs., 797 F.2d at 1236–37, do not establish that any
variation in the modes of expression establishes copyrightability, as
they acknowledge the potential relevance of the merger and scènes à
faire doctrines. While E.F. Johnson rejected the defendant’s argument
that the computer software program at issue was not protectable because
it was needed for “compatibility” with a certain radio system, it did so
only after finding that “the exact duplication of the [program] . . .
was not the ‘only and essential’ means of achieving compatibility.” 623
F. Supp. at 1502.

Second, given the district court’s mistaken view of the legal standard
for distinguishing protectable expression from unprotectable ideas, the
constraints on the Toner Loading Program established by the evidence
need to be reconsidered. To discern whether “originality” exists in the
work, the court should ask whether the ideas, methods of operation and
facts of the program could have been expressed in any form other than
that chosen by the programmer, taking into consideration the
functionality, compatability and efficiency demanded of the program.

In presenting evidence in support of its motion for a preliminary
injunction, Lexmark focused on establishing that the Toner Loading
Program could have been written in other ways. Dr. Maggs, Lexmark’s
expert, described several possible alternatives in his declaration: (1)
different constants and equations could be used; (2) a lookup table
could be used in lieu of equations; (3) some measure other than torque
could be used to approximate toner level (e.g., the number of pages
printed); or (4) the same equations could be used in a different
sequence. Maggs Decl., JA 709–10. He concluded that over 50 different
programs could be written to substitute for the Toner Loading Program.
Maggs Hr’g Test., JA 940.

Dr. Goldberg, SCC’s expert, acknowledged that certain changes could be
made to the program, for example, by changing the sequence of elements
in the program, Hr’g Test., JA 1021, or by writing the Toner Loading
Program in a different programming language altogether, JA 1023. But Dr.
Goldberg conceded this point only as a theoretical matter, as he
concluded that functionality and efficiency considerations precluded any
material changes to the Toner Loading Program. JA 1021.

Dr. Goldberg concluded that several external constraints limit the
options available in designing the Toner Loading Program. For one, the
Printer Engine Program that downloads and executes the program
understands only a single programming language composed of eight simple
commands. JA 1018-19. For another, the program must consist of only 55
bytes because the printer downloads only these particular bytes. JA
1019. Efficiency considerations and the physical realities of the
printer and toner cartridge also restrict the forms that the Toner
Loading Program could take. Id. As a result, Dr. Goldberg concluded,
these external factors together “dictate the way that the simple toner
loading program looks,” and the resulting program is a “no-thought
translation of the formulas to the language that the internal loading
program must be written in, and [the programmer doesn’t] have much
choice.” Id. Dr. Goldberg responded to Dr. Maggs’ testimony that the
Toner Loading Program could take alternative forms by noting that Dr.
Maggs’ proposed changes were trivial—that they did not make any
“substantial difference to the nature of the program”—or that they were
so inefficient and repetitive as to be “ridiculous.” JA 1021. Instead,
Dr. Goldberg concluded, the Toner Loading Program as it is written is
the most “straightforward, efficient, natural way to express the
program.” Id. By contrast, Dr. Maggs’ testimony did not reference any of
these functional considerations discussed by Goldberg, meaning that the
record fails to establish any affirmative support for the contention
that Dr. Maggs’ proposed alternatives satisfy the memory restrictions of
the program.

Even aside from Dr. Goldberg’s testimony that the Toner Loading Program
is the most efficient means of calculating toner levels, the
alternatives suggested by Dr. Maggs do not appear to support the
district court’s initial conclusion that the program is expressive. Dr.
Maggs’ first and third suggestions—that different equations and values
or a different means of measuring toner level altogether could have been
used—do not appear to represent alternative means of expressing the
ideas or methods of operations embodied in the Toner Loading Program;
they appear to be different ideas or methods of operation altogether.
Selection from among competing ideas or methods of operation generally
does not result in copyright-protectable expression. See Bateman, 79
F.3d at 1546 n.29 (“Generally there is more than one method of operation
or process that can be used to perform a particular computer program

However, methods of operation and processes are not copyrightable.”);
see also Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977, 980
(7th Cir. 1997) (“A lamp may be entirely original, but if the novel
elements are also functional the lamp cannot be copyrighted.”). Nor
would the use of a “lookup table” appear to differ meaningfully from the
use of other equations directly. Instead of executing a mathematical
formula on a given input, this program merely “looks up” in a data table
the output of that same formula for the given input value. Finally, Dr.
Maggs’ fourth suggestion—that the same equations could be reordered—does
not appear to show originality because such alterations may be too
trivial to support a finding of creative expression. See M.M. Bus.
Forms, 472 F.2d at 1140 (holding that paraphrasing of words on legal
forms does not contain the requisite originality for copyright

To the extent these alternatives suggest any originality in the Toner
Loading Program, at any rate, the quantum of originality may well be de
minimis and accordingly insufficient to support the validity of
Lexmark’s copyright in the work. See Mitel, Inc. v. Iqtel, Inc., 124
F.3d 1366, 1373–74 (10th Cir. 1997) (determining that plaintiff’s
“arbitrary selection” of several numbers required only “de minimis
creative effort” and did not “evince enough originality to distinguish
authorship”) (quotation omitted); cf. Sega Enters., 977 F.2d at 1524 n.7
(noting that 20-byte code is of de minimis length and therefore likely a
“word” or “short phrase” that is not protected by copyright law); Murray
Hill Publ’ns, Inc. v. ABC Comm’ns, Inc., 264 F.3d 622, 633 (6th Cir.
2001) (noting that short movie line was “a phrase or slogan not worthy
of copyright protection in its own right”). Because the district court
initially looked at these issues and this evidence through the wrong
frame of reference, its conclusion that the Toner Loading Program had
sufficient originality to obtain copyright protection does not support
the preliminary injunction. At the permanent injunction stage of this
dispute, we leave it to the district court in the first instance to
decide whether the Toner Loading Program has sufficient originality to
warrant copyright protection. 

Third, and perhaps most significantly, the district court erred in
assessing whether the Toner Loading Program functions as a lock-out
code. Even if the constraints described by Dr. Goldberg—the programming
language, the program size, efficiency concerns—did not dictate the
content of the Toner Loading Program, the fact that it also functions as
a lock-out code undermines the conclusion that Lexmark had a probability
of success on its infringement claim.


In view of our conclusion on this preliminary-injunction record that the
Toner Loading Program is not copyrightable, we need not consider SCC’s
fair-use defense.


(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

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