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Re: The GPL and Patents: ROFL

From: Hyman Rosen
Subject: Re: The GPL and Patents: ROFL
Date: Wed, 08 Dec 2010 15:59:50 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 8/18/2010 10:40 AM, RJack wrote:
I claim that the specific code necessarily required to embody the
line-by-line instructions is not eligible for copyright in the context
of patents.
That is exactly what the Lexmark decision was trying to teach:

That's exactly wrong, as both the Atari v. Nintendo and Lexmark
decisions demonstrate. The difference between the two is that
in the former, the code used to embody the patented process could
be written in many different ways, while in the latter, a specific
program down to the last byte was needed. As you yourself quote in
the Terekhovian way of proving your own error:

"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.

Notice the words - "inextricably", "necessarily".

> You hate that qualification "in the context of patents" don't you?

The context of patents is immaterial. What makes a work ineligible for
copyright is this context is necessity - when the description of what
must be done is so precise that any program written to do it will of
necessity be the same program. That is what was not the case in Atari
v. Nintendo and was the case in Lexmark. When there is necessity there
can be no creativity. That the necessity arises from the description
in a patent or from some other source is immaterial.

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