Re: [dvd-discuss] SCC, Lexmark, and copyright versus reverse-engineering

[microlenz(at)earthlink.net]

On 29 Mar 2003 at 17:40, Seth Finkelstein wrote:

Date sent:      	Sat, 29 Mar 2003 17:40:41 -0500
From:           	Seth Finkelstein <sethf@sethf.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	[dvd-discuss] SCC, Lexmark, and copyright versus reverse-engineering
Send reply to:  	dvd-discuss@eon.law.harvard.edu

>  In the court's decision, there doesn't seem to be much dispute
> that in *theory*, other downloadable programs could be written that
> performed the same operations as Lexmark's programs. The difficulty is
> knowing the details of the program and operating environment, in the
> first place.

<DA on>
 And if Lexmark has made RE so much more difficult, then they are entitled to 
their competitive advantage. That's the capitalist system at work.
<DA off>

The real question is if there IS another way. If there is then doing it would 
make eliminated the lawsuit. But if there is no other way, then I would argue 
that the aspect of creativity has been eliminated by the access control and 
therefore, the program and authentication becomes a mere fact "this sequence of 
bits must be exchanged between the printer and cartridge" which can no longer 
be copyrighted or even patented. THe judge made a lot of discussion of the 
creative aspects and decisions. Ironically, the use of a access control, TPM or 
authentication may invalidate that...not that the judge would understand that. 
Creativity requires freedom of choice. Fact have NO freedom of choice. To quote 
Peter Schickle "truth is truth. You can't have opinions about truth"

> 
>  I've done reverse-engineering (in fact, once long ago for a
> printer-cloner). My joke about the process, is that you can't call up
> technical support, and ask them about aspects you don't understand.
> 

Try Earthlink support for a corrupted mailbox....Their format and structure is 
pretty simple just tedious to RE.

>  In this case, all you'd be able to observe easily, would be a
> string of bytes going from the printer cartridge to the printer
> itself. What do the bytes do? No idea. The most *compatible* action is
> simply to reproduce the exact same string of bytes.
> 

but if there is no alternative, then there is only FACT.

>  The court then says, roughly, "Aha! Those bytes were a
> copyrighted program! So reproducing them is copyright infringement.
> You *could*, in *theory*, write a different program - so no merger
> doctrine for you!"
> 
>  The practical difficulties of writing such a different
> program, in a context where one has no idea of the language or the
> details of its use, are explicitly ruled irrelevant by the court.

As they are. No one says that life must be easy or that you have to get a free 
lunch. If Compaq can RE the PC bios in the mid 80s, I doubt that this is much 
worse. IF the program is truly copyrightable (and I would have to be convinced 
of that), then it is still copyright infringement and the judges comments about 
access are irrelevant (he' splitting hairs)

> 
> -- 
> Seth Finkelstein  Consulting Programmer  sethf@sethf.com  http://sethf.com
> Anticensorware Investigations - http://sethf.com/anticensorware/
> Seth Finkelstein's Infothought blog - http://sethf.com/infothought/blog/