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Re: CSRG archives

From: Alexander Terekhov
Subject: Re: CSRG archives
Date: Tue, 04 May 2010 16:10:51 -0000

Hyman Rosen wrote:
> On 3/24/2010 9:31 AM, Alexander Terekhov wrote:
> > Yes, and?
> <>
>      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.

"Court Rejects Copyright Protection for Computer Program Found Lacking

By Paul E. Poirot

A recent decision from the United States District Court for the Eastern
District of Kentucky provides important guidance about the amount of
creativity required to support copyright in a computer program and the
nature of fair use in the context of interoperability.  The court held
that certain Lexmark software programs were not protected by copyright
and that the use of those programs to achieve interoperability between
devices was a protected “fair use.”  Static Control Components, Inc. et
al v. Lexmark International Inc., Case No. 5:04-cv-00084-GFVT (E. D.
Ky., Apr. 18, 2007) (Van Tatenhove, J.).

Lexmark obtained copyrights on small programs that were used to measure
toner in certain Lexmark printer cartridges. The binary code of these
programs served as a lock-out code for the intended printers (i.e., if
the printer could not read the specific combination of binary numbers
from the inserted printer cartridge, the printer would not function).

When Static Control reverse-engineered the binary code to achieve
interoperability between remanufactured cartridges and Lexmark printers,
it unwittingly copied verbatim the executable aspects of the programs. 
Lexmark sued claiming copyright infringement.  Static Control maintained
that the programs embodied no creative expression and therefore, could
not be protected by copyright.

Lexmark argued that its programs were sufficiently creative because it
had made a series of design choices when writing the programs.  Static
Control contended, however, that the mere existence of alternatives
cannot endow the Lexmark code with originality it otherwise did not

The court determined that the programs did not have sufficient
originality to warrant copyright protection.  The district court
observed that whether functional alternatives exist in the abstract is
not the issue; rather, the issue is whether the programmers actually
expressed sufficient originality when creating the programs.  The court
held that the Lexmark programmers did not. "
(Case 5:04-cv-00084-GFVT Document 975)


SCC makes two chief arguments regarding its assertion that it cannot be
liable for copyright infringement regarding the TLP’s. First, SCC avers
that the TLP’s lack the requisite originality necessary to be
copyrightable. The Sixth Circuit’s opinion combined with the Court’s
consideration of Lexmark’s current arguments lead the Court to find that
Lexmark’s TLP’s are not copyrightable. In the alternative, if the TLP’s
are copyrightable, then SCC argues that copying those programs as part
of SCC’s SMARTEK chip is “fair use” pursuant to 17 U.S.C. § 107. Guided
by the Sixth Circuit’s opinion, the Court agrees that SCC’s copying of
Lexmark’s TLP’s in this case was fair use, assuming arguendo the TLP’s’


Both parties’ current positions are based on evidence known to and
appraised by the Sixth Circuit in 2004. The Court finds no new evidence
that would tend to materially undermine the Sixth Circuit’s application
of facts to the law, and accordingly that appellate decision controls.
As such, the originality—originality being a term-of-art under copyright
law—of Lexmark’s TLP’s is insufficient for the programs to be
copyrightable. "


P.S. "I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds."

Hyman Rosen <> The Silliest GPL 'Advocate'

P.P.S. "Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress."

Hyman Rosen <> The Silliest GPL 'Advocate'

(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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