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Re: The GPL and Patents: ROFL

From: RJack
Subject: Re: The GPL and Patents: ROFL
Date: Wed, 08 Dec 2010 15:59:51 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 8/18/2010 11:01 AM, Hyman Rosen wrote:
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.

You are confusing paragraph (1) "scènes à faire":

"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. . . 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. . .

With paragraph (2) patentable "idea, process or method":

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

You are *never* going to be able to evade:

"17 USC § 102. Subject matter of copyright: In general.

(b) In 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 the form in
which it is described, explained, illustrated, or embodied in such work."

RJack :)

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