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Re: [dvd-discuss] SCC, Lexmark, and copyrightversusreverse-engineering

On 2 Apr 2003 at 8:42, John Zulauf wrote:

Date sent:      	Wed, 02 Apr 2003 08:42:27 -0700
From:           	"John Zulauf" <johnzu@ia.nsc.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] SCC, Lexmark, and
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> "D. C. Sessions" wrote:
> > 
> > Actually, that's what happened.  Some software looked for the letters
> > "IBM" at a certain ROM offset, so the clones had "IBM compatible"
> > in theirs.
> > 
> Which should be the basis for the defense.  To the extent that a certain
> byte stream is required, the creative choices are extinguished.  The
> word "compatible" certainly could have been "clone" "doppelganger" or
> "avatar", but the word "IBM" had to be exactly what it was.  

<DA On>
Oh but the DMCA speaks of secret material to protect copyright. That's just 
what that is...was!
<DA off>
Protection protection protection...no tariffs on good but protection of ideas?

> For the SCC case, one need to create a program with exactly the same
> functionality (idea) and with exactly the same signature.  However
> function of the signature is to guarantee (or at least reduce to trivial
> probability) that only a certain expression of the idea is accepted. 
> Add in the trade secret language, the trade secret that the code WAS a
> language, and the possibility of an alternative expression of the idea
> drops to what a "reasonable person" calls zero.  Effectively they have a
> printer that requires a specific expression of a specific idea in a
> specific and secret language -- extinguishing all possibilities of any
> alternate or creative choice.

Sounds like a question for the Open Source community to tackle...what more can 
be open source than the ability to print out the material which you have just 
created and obtained the copyright for..

> Oddly enough, they may be hoisting themselves on their own petard. 
> Given that with the secrets of the language, they didn't really need to
> fix the expression, just fix the idea.  Since no one knows the language,
> alternative expressions are still effectively impossible, but since they
> didn't lock in the requirement for their specific expression, then use
> of that expression would be far more clearly copyright violation.  With
> the "IBM" requirement for a specific implementation of that idea, it
> seems to me they lose the protection of the idea or risk tying/copyright
> abuse.

But it also demonstates that the USSC ruled badly in Eldred. They made a big 
deal about idea vs expression but if the idea can only have one expression then 
it cannot have copyright or patent protection. In the case of Lexmark v SCC the 
idea is making the cartridge work. The expression is the program and hash etc. 
THe real question is IF the cartridge can be made to work with another 
program...open source...where are you?

> <cynical>Of course that assumes a judiciary that cares about copyright
> abuse or illegal tying.</cynical>
> .002