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Re: The GPL and Patents: ROFL

From: RJack
Subject: Re: The GPL and Patents: ROFL
Date: Wed, 08 Dec 2010 15:59:38 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 8/13/2010 5:24 PM, RJack wrote:

Any code that implements a patent idea is not copyrightable
within the practice area of the patent.

You are extremely confused. Code is copyrightable whether or not it
embodies patented ideas. If you believe otherwise, you should quote
the law or case that demonstrates your thesis.

OK. I'll be glad to:

"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 like reasons, Judge Feikens is correct that a poem in the abstract
could be copyrightable. But that does not mean that the poem receives
copyright protection when it is used in the context of a lock-out
code. Similarly, a computer program may be protectable in the abstract
but not generally entitled to protection when used necessarily as a
lock-out device."; Lexmark International, Inc. v. Static Control
Components, Inc., 387 F.3d 522 (6th Cir. 2004).

What say ye now, dear Hyman, dear Hyman?

RJack :)

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