Re: what does a patent restrict?

On Fri, 8 Oct 1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
>
> On Thu, 7 Oct 1999, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
> >
> > On Wed, 6 Oct 1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
> > >
> > > Yes, I recall that there is a case saying "fixation occurs in
> > > memory", though it seems pretty bogus to me. Of course, fair use is
> >
> > MAI v. Peak. The legal reasoning is sound.
>
> I'll have to look it up. I'm not exactly sure what you mean by the
> legal reasoning being sound. Is that in terms of the letter of the
> law, or in terms of the clause of the Constitution that the law is
> derived from?
>
> I'm slightly familiar with the case. I also know Congress even
> didn't approve of this interpretation, and explicitly overrode it in
> the current statute.

Hardly. They addressed a different issue, the question whether one who purchases a computer system may hire independent third parties to execute programs necessary to operate the system. Indeed, the Congress was asked by some to go farther in limiting the scope of the Copyright Act, by extending Section 120 to all persons in proper possession of a copy, but Congress declined.

I expect you wouldn't get sanctioned for making this now-discredited argument (though it would be a clase question), but I would expect to lose a great deal of credibility with the judge after she had studied the cases. In theory, there remain a number of Circuits that have yet to rule on the point, so there may yet be a dissenting voice, and no doubt there are some (including Professor Samuelson) who still feel MAI and its predecessors and progeny are wrongly decided, but I would expect those relying solely on that basis to lose many more cases than they win.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Wed Oct 13 1999 - 12:49:06 GMT