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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 16:00:31 -0000
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On 8/20/2010 1:25 PM, RJack wrote:

No floundering. It's all perfectly clear. All your citations
disprove your claims. Extremely clumsy of you.

    where idea and expression are intertwined and where
    non-protectable ideas predominate, expression is not
    protected); see generally Nimmer ยง 13.03[B][3]

Mason v. Montgomery Data, Inc., 967 F.2d 135, 138, fn 5 (5th Cir. 1992);
Terekhovian; this case proves the opposite of what you would hope,
that not even maps of an area based on publicly available data meet
the idea/expression merger doctrine.

    Mason argues that the court clearly erred in finding that this
    idea can be expressed in only one or a limited number of ways.
    We agree. The record in this case contains copies of maps created
    by Mason's competitors that prove beyond dispute that the idea
    embodied in Mason's maps is capable of a variety of expressions.
    Although the competitors' maps and Mason's maps embody the same
    idea, they differ in the placement, size, and dimensions of
    numerous surveys, tracts, and other features.

Kregos v. Associated Press, 937 F.2d 700, 705 (2nd Cir. 1991).
Terekhovian; this case proves the opposite of what you would hope,
that "pitching forms", despite containing the expected statistics
common to baseball, fail the merger doctrine.

    We held that the validity of Kregos's compilation copyright
    could not be rejected for lacking, as a matter of law, the
    requisite originality and creativity. We also held that
    Kregos's forms did not evince a merger of idea and expression,
    because the potentially relevant data about pitching were
    numerous, and there were numerous means of expressing the idea
    of rating pitchers' performances. We further held that the
    district court erred in holding the "blank form" doctrine barred
    copyright in this case, because Kregos's forms, unlike check
    stubs, or a blank diary, convey information

Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir. 2000).
Failure once more; a photographer sued Skyy Vodka for copyright
infringement of his photographs of bottles when the company hired
other photographers to photograph the bottles. The court said:

    Though the Ets-Hokin and Skyy photographs are indeed similar,
    their similarity is inevitable, given the shared concept, or
    idea, of photographing the Skyy bottle. When we apply the
    limiting doctrines, subtracting the unoriginal elements,
    Ets-Hokin is left with only a "thin" copyright, which protects
    against only virtually identical copying. As we observed, in
    Apple, "[w]hen the range of protectable expression is narrow,
    the appropriate standard for illicit copying is virtual identity."

We see that literal copying remains infringement, but copyright
cannot protect the idea of photographing a bottle of Skyy Vodka.
Even though the subject is extremely narrow, this does not prevent
the photographer from getting copyright on his specific work.

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