RE: [dvd-discuss]Lexmark Decision

["Richard Hartman" <hartman(at)onetouch.com>]

I didn't think they sued for infringement, I thought
they sued directly under the DMCA -- for "bypassing
a technical protection mechanism"...


-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi/sec: not just a good idea, it's the LAW!



> -----Original Message-----
> From: Noah silva [mailto:nsilva@atari-source.com]
> Sent: Tuesday, March 25, 2003 12:41 PM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: RE: [dvd-discuss]Lexmark Decision
> 
> 
> Maybe I am missing something...
> 
> Did lexmark sue for copyright violation or patent 
> infringement?  I thought
> it was copyright violation.  Even if this falls under DMCA, 
> and even if
> they copied the program outright, if they had to copy it to make the
> printer work (i.e. if it acted like a key) then I would think 
> it would be
> an "interoperability" exception.  (and I think a key wouldn't be
> copyrightable)  If it really is code in a language, and could be
> implemented in another way, then (assuming that such a small 
> program isn't
> "trivial" under copyright standards) they shouldn't have copied it
> verbatim, and simply have to write a different program in this 
> "language" that performs the same function.  (This assumes 
> they could even
> figure out how the language works).
> 
> Here we get into the law following distinctions made by people.  I
> remember having someone argue that an MPEG data file is a "program",
> (especially since there are MPEG decoder chips) and so there is no
> difference between a Program vs. Data.  I think that in most 
> cases, the
> status of a sequence of bytes is clear, but in this case it isn't so
> clear, since we didn't see the documentation from lexmark.
> 
> thanks,
>     noah silva 
> 
> On Tue, 25 Mar 2003, Richard Hartman wrote:
> 
> > This discussion is getting off the mark, isn't it?
> > It isn't the Lexmark _language_ that was copyrighted,
> > but a program (supposedly) written in that language, no?
> > 
> > 
> > -- 
> > -Richard M. Hartman
> > hartman@onetouch.com
> > 
> > 186,000 mi/sec: not just a good idea, it's the LAW!
> > 
> > 
> > 
> > > -----Original Message-----
> > > From: Arnold G. Reinhold [mailto:reinhold@world.std.com]
> > > Sent: Tuesday, March 25, 2003 8:12 AM
> > > To: dvd-discuss@eon.law.harvard.edu
> > > Subject: Re: [dvd-discuss]Lexmark Decision
> > > 
> > > 
> > > At 9:36 AM -0800 3/24/03, Michael A Rolenz wrote:
> > > >That puzzled me too. I wish one could get copies of the 
> transcript 
> > > >or their code. It's also a problematic one. Can one copyright or 
> > > >patent a language? What unique aspects of it would be 
> copyrightable? 
> > > >The statements "x=x+1" or "x++" are old ones. A language 
> that used 
> > > >either could not claim protection for those statements. If the 
> > > >language is very high level, then one would be asking 
> for protection 
> > > >for a sequence of fairly obvious operations which one 
> could argue do 
> > > >not require any originality or creativity.
> > > ...
> > > 
> > > There is some precedent against copyrighting of computer 
> languages in 
> > > Lotus Dev. Corp. v. Borland Int'l, Inc. Here is a nice 
> summary from a 
> > > subsequent ruing by the first circuit denying Borland 
> attorney fees:
> > > 
> > > "Background
> > > 
> > > Lotus 1-2-3 is a spreadsheet computer program that 
> enables users to 
> > > perform various functions and calculations.  In 1987, Borland 
> > > released spreadsheet programs Quattro and Quattro Pro, 
> which competed 
> > > with Lotus 1-2-3 and contained virtually identical copies of the 
> > > 1-2-3 menu command hierarchy.  The inclusion of this 
> so-called "menu 
> > > tree" from Lotus 1-2-3 prompted the instant litigation in 
> 1990, the 
> > > substance of which is set forth in our prior opinion. See 
> Lotus Dev. 
> > > Corp. v. Borland Int'l, Inc. , 49 F.3d 807, 810-811 (1st 
> Cir. 1995). 
> > > Here we recite only the facts pertinent to the present appeal.
> > > 
> > > The hard-fought litigation below resulted in four 
> separate district 
> > > court opinions (Keeton, U.S.D.J.), culminating in the district 
> > > court's conclusion that the 1-2-3 menu tree contained 
> copyrightable 
> > > expression and that Borland had thus infringed Lotus's 
> copyrights in 
> > > Lotus 1-2-3. (1) On March 9, 1995, we reversed, holding 
> as a matter 
> > > of first impression that the 1-2-3 menu command hierarchy was an 
> > > uncopyrightable "method of operation" under 17 U.S.C. § 
> 102(b). See 
> > > 49 F.3d at 813-18.  Subsequently, the Supreme Court 
> granted Lotus's 
> > > petition for certiorari but deadlocked on the merits, 
> resulting in an 
> > > affirmance by an equally divided Court. See 516 U.S. 233 (1996)."
> > > 
> > > From the actual 1995 ruling:
> > > 
> > > "We hold that the Lotus menu command hierarchy is an
> > > uncopyrightable "method of operation." The Lotus menu
> > > command hierarchy provides the means by which users control
> > > and operate Lotus 1-2-3. If users wish to copy material, for
> > > example, they use the "Copy" command. If users wish to print
> > > material, they use the "Print" command. Users must use the
> > > command terms to tell the computer what to do. Without the
> > > menu command hierarchy, users would not be able to access and
> > > control, or indeed make use of, Lotus 1-2-3's functional
> > > capabilities.
> > > 
> > > The Lotus menu command hierarchy does not merely
> > > explain and present Lotus 1-2-3's functional capabilities to
> > > the user; it also serves as the method by which the program
> > > is operated and controlled. The Lotus menu command hierarchy
> > > is different from the Lotus long prompts, for the long
> > > prompts are not necessary to the operation of the program;
> > > users could operate Lotus 1-2-3 even if there were no long
> > > prompts.9 The Lotus menu command hierarchy is also
> > > different from the Lotus screen displays, for users need not
> > > "use" any expressive aspects of the screen displays in order
> > > to operate Lotus 1-2-3; because the way the screens look has
> > > little bearing on how users control the program, the screen
> > > displays are not part of Lotus 1-2-3's "method of
> > > operation."10 The Lotus menu command hierarchy is also
> > > different from the underlying computer code, because while
> > > code is necessary for the program to work, its precise
> > > formulation is not. In other words, to offer the same
> > > capabilities as Lotus 1-2-3, Borland did not have to copy
> > > Lotus's underlying code (and indeed it did not); to allow
> > > users to operate its programs in substantially the same way,
> > > however, Borland had to copy the Lotus menu command
> > > hierarchy. Thus the Lotus 1-2-3 code is not a
> > > uncopyrightable "method of operation."11
> > > 
> > > 
> > > The district court held that the Lotus menu command
> > > hierarchy, with its specific choice and arrangement of
> > > command terms, constituted an "expression" of the "idea" of
> > > operating a computer program with commands arranged
> > > hierarchically into menus and submenus. Borland II, 799 F.
> > > Supp. at 216. Under the district court's reasoning, Lotus's
> > > decision to employ hierarchically arranged command terms to
> > > operate its program could not foreclose its competitors from
> > > also employing hierarchically arranged command terms to
> > > operate their programs, but it did foreclose them from
> > > employing the specific command terms and arrangement that
> > > Lotus had used. In effect, the district court limited Lotus
> > > 1-2-3's "method of operation" to an abstraction.
> > > 
> > > Accepting the district court's finding that the
> > > Lotus developers made some expressive choices in choosing and
> > > arranging the Lotus command terms, we nonetheless hold that
> > > that expression is not copyrightable because it is part of
> > > Lotus 1-2-3's "method of operation." We do not think that
> > > "methods of operation" are limited to abstractions; rather,
> > > they are the means by which a user operates something. If
> > > specific words are essential to operating something, then
> > > they are part of a "method of operation" and, as such, are
> > > unprotectable. This is so whether they must be highlighted,
> > > typed in, or even spoken, as computer programs no doubt will
> > > soon be controlled by spoken words.
> > > 
> > > The fact that Lotus developers could have designed
> > > the Lotus menu command hierarchy differently is immaterial to
> > > the question of whether it is a "method of operation." In
> > > other words, our initial inquiry is not whether the Lotus
> > > menu command hierarchy incorporates any expression.12
> > > Rather, our initial inquiry is whether the Lotus menu command
> > > hierarchy is a "method of operation." Concluding, as we do,
> > > that users operate Lotus 1-2-3 by using the Lotus menu
> > > command hierarchy, and that the entire Lotus menu command
> > > hierarchy is essential to operating Lotus 1-2-3, we do not
> > > inquire further whether that method of operation could have
> > > been designed differently. The "expressive" choices of what
> > > to name the command terms and how to arrange them do not
> > > magically change the uncopyrightable menu command hierarchy
> > > into copyrightable subject matter. "
> > > 
> > > 
> > > 
> > > Arnold Reinhold
> > > 
> > 
> 
>