Re: [dvd-discuss] SCC, Lexmark, andcopyrightversusreverse-engineering

["John Zulauf" <johnzu(at)ia.nsc.com>]

"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.  

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.

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.

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

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