RE: [dvd-discuss]Lexmark Decision

[microlenz(at)earthlink.net]

On 25 Mar 2003 at 15:40, Noah silva wrote:

Date sent:      	Tue, 25 Mar 2003 15:40:38 -0500 (EST)
From:           	Noah silva <nsilva@atari-source.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	RE: [dvd-discuss]Lexmark Decision
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> Maybe I am missing something...
> 
> Did lexmark sue for copyright violation or patent infringement? 

Neither DMCA.

> I thought
> it was copyright violation.  

SO it would appear

>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)  

The judge stated otherwise. That's why I'd like to read the "expert" testimony.

>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).

I think that's the problem with SCC. They didn't do all the way to RE the 
thing. OTOH...if the receiving program will ONLY accept one set of commands in 
their unique programming language..then is that worthy of copyright? I'd say 
no. The programming language degenerates to a key (degenerate is used in 
mathematical usage not moral here).

> 
> 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.


Von Neumann noted the lack of distinction between data and program in a 
computer...he would be relishing this today.
> 
> 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
> > > 
> > 
>