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Re: DMCA and protection
From: David Farber <dave () farber net>
Date: Mon, 16 Mar 2009 16:03:52 -0400



Begin forwarded message:

From: Tom Gray <tom_gray_grc () yahoo com>
Date: March 16, 2009 8:06:17 AM EDT
To: dave () farber net
Subject: Re: [IP] DMCA and protection


http://www.osler.com/resources.aspx?id=10660

When its patents expired, Lego tried to trademark the 8 nobs on top of its blocks. It brought suit against a Canadian manufacturer of block of blocks that were interchangeable with Lego blocks. The Canadian Supreme Court ruled that elemetns that are purely functional cannot be trademarked.. This was an attempt to resurrect the monopoly rights of expired patents through trademark. Teh US Supreme Court has made a similar ruling.


--- On Mon, 3/16/09, David Farber <dave () farber net> wrote:

From: David Farber <dave () farber net>
Subject: [IP] DMCA and protection
To: "ip" <ip () v2 listbox com>
Date: Monday, March 16, 2009, 11:12 AM
Begin forwarded message:

From: James Grimmelmann <james () grimmelmann net>
Date: March 15, 2009 11:20:58 PM EDT
To: dave () farber net, tracy.hall () alum mit edu
Subject: Re: [IP] Good Answer to  Good question  A bunch of
comments on Apple Adds Still More DRM to iPod Shuffle - The
Value Chain Again

From: Tracy Hall <tracy.hall () alum mit edu>
Date: March 15, 2009 7:47:05 PM EDT
To: dave () farber net
Subject: Re: [IP] Good question  A bunch of comments
on Apple Adds Still More DRM to iPod Shuffle - The Value
Chain Again


David;
If Apple follows Nintendo's lead, there *is* a
precedence: copyright.  The copy-protection that the
original Nintendo games used was simply a device that
contained a string, which Nintendo had the copyright to.

Regardless of *how* the device is reverse-engineered
and implemented, it still needs to present the string to
validate - which violates copyright.  Another advantage is
copyrights last for *much* longer than patents...

I used to think that, too, but the courts have rejected
this argument.  Here's a section from Lexmark v. Static
Controls, the DMCA printer-cartridge case.  On its way to
the DMCA issue, the court held that validation strings are
per se uncopyrightable:

"Generally speaking, "lock-out" codes fall
on the functional-idea rather than the original-expression
side of the copyright line. Manufacturers of interoperable
devices such as computers and software, game consoles and
video games, printers and toner cartridges, or automobiles
and replacement parts may employ a security system to bar
the use of unauthorized components. To "unlock"
and permit operation of the primary device (i.e., the
computer, the game console, the printer, the car), the
component must contain either a certain code sequence or be
able to respond appropriately to an authentication process.
To the extent compatibility requires that a particular code
sequence be included in the component device to permit its
use, the merger and scenes a faire doctrines generally
preclude the code sequence from obtaining copyright
protection. See Sega Enters., 977 F.2d at 1524 ("When
specific instructions, even though previously copyrighted,
are the only and essential means of accomplishing a given
task, their later use by another will not amount to
infringement.") (quoting National Commission on New
Technological Uses of Copyrighted Works, Final Report 20
(1979)) (emphasis added); Atari Games Corp. v. Nintendo of
Am., Inc., 1993 U.S. Dist. LEXIS 6786, Nos. 88-4805 &
89-0027, 1993 WL 207548, at [**26]  *1 (N.D. Cal. May 18,
1993) ("Atari III") ("Program code that is
strictly necessary to achieve current compatibility presents
a merger problem, almost by definition, and is thus excluded
from the scope of any copyright.").

That last case in there -- Atari Games v. Nintendo of
America -- is actually the Nintendo lockout chip litigation
itself.  Atari lost, not because it used Nintendo's
unlock stream of bits, but because it copied the program
that produced that stream, including sections not necessary
to unlock the console.  The court concluded that Atari's
story about clean-room engineering based on purely
functional requirements was a lie.

James




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