re: Sweat Copyrights

Steven D. Jamar <sjamar[_at_]aol.com> wrote:
>
> Dennis Karjala asks us to ignore the central problem with the case of
> Compaq Computer Corp. v. Procom Technology, Inc., 908 F. Supp. 1409
> (S.D. Tex. 1995), i.e., that it was wrongly decided at least on the
> grounds of functionality. (more about this later)
>
> I agree that if the decision is correct and there is a copyright in the
> set of failure alert parameters (choke, choke), then what is being
> protected is either the method by which those are copied (just reading
> and writing the bits, without even having to understand what was there
> (ala Apple v. Franklin)), or the numbers themselves. Well, you can't
> protect the numbers. Copyright does not protect the content, just the
> expression. So if I independently wrote "Dead Man Walking," word for
> word with the original script, no infringement. Similarly, if the second
> one in independently came up with the same numbers for failure alerts -
> no infringement. (Certainly no one would claim that idea of failure
> alert settings can be copyrighted.)

If the idea of failure alert settings cannot be copyrighted, then why can the operative facts, the settings themselves, be copyrighted? If anything, the whole scheme looks like a process which should have been patented.

An analogy can be drawn to the Human Genome activity. No one, as far as I know, has tried to copyright the factual sequences of ACGH...., but plasmids containing those sequences have been patented.

> Aren't all the factors cited by Prof. Karjala "external contraints?"
> E.g., compatibility with consumer expectations, with the dominant
> company in the market, with warranty periods, etc. If so, are those
> not treated as the computer software analog of scenes a faire?

Or, as Borland indicated, as methods of operation, expressly excluded from copyright. The statute and the courts have failed to distinguish, as Altai put it, between Humpty Dumpty and a recipe for scrambling eggs. The PTO's guidelines, classifying software in a computer as a kind of machine, is the first rational analysis since Apple v. Franklin pointed out that programs are really utilitarian devices but the Copyright Act seemed to include them.

....
> I suppose one could set up the paper wall for reverse engineering, but
> why require this? Isn't doing this in fact giving very broad protection,
> in effect? Just the opposite of the thin protection being advocated?
>
> I think it is time to go with what should have been done years ago -
> sui generis protection for software, especially functional or utilitarian
> software.

AMEN! =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=

Buford C. Terrell                       1303 San Jacinto Street
Professor of Law                              Houston, TX 77002
South Texas College of Law                voice   (713)646-1857
terrell[_at_]stcl.edu                            fax   (713)646-1766

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