Re: DMCA and protection

[David Farber <dave () farber net>]

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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