I would love to see a transcript of the testimony to see just what the two expert witnesses actually did say rather than the judge's interpretations. The copyright office testified that they did believe that there was sufficient creativity in the code to grant the copyright. (something I might dispute and would like to see the code). SCC copied the code believing that it was just a password rather than an actual program but the judge ruled otherwise and went to great pains to point out that SCC could have created code with similar functionality and also send the authentication sequence to cause the printer to download and use the SCC code.. If the judge is correct and that there are alternatives that SCC could have used, then maybe the next open source project should be providing free software to fake out Lexmark printers into thinking they have a Lexmark cartridge.
What is also disturbing is that the authentication sequence really seems to have only two purposes. The first is to verify that the program being loaded from the cartridge has not been corrupted which is legitimate.(exercise for the alert reader. Assume it is because of some damage due to ESD, Xrays, or strong EM fields. what rights do the consumer now have?). The second is to see that one uses only Lexmark cartridges which is not legitimate.
BTW- Lexmark's "Prebate" program smacks of a tying arrangment. The question is the legality of it. From
"The Agencies would be likely to challenge a tying arrangement if: (1) the seller has market power in the tying product (2) the arrangement has an adverse effect on competition in the relevant market for the tied product, and (3) efficiency justifications for the arrangement do not outweigh the anticompetitive effects. The Agencies will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner."
(1) Lexmark owns a major share of the market.
(3) What efficiency is there? Consumers get a discount to always use Lexmark cartridges
"Richard Hartman" <firstname.lastname@example.org> Sent by: email@example.com
03/24/2003 08:34 AM
Please respond to dvd-discuss
Subject: RE: [dvd-discuss]Lexmark Decision
If a 35 byte _password_ is not copyrightable, and this
"program" is being used essentially as a password, then
they've gotten around the inability to copyright passwords.
IIRC, this mini program is not being _executed_ to gain
access, but the program itself is merely being used as an
access key ... or have I misunderstood?
-Richard M. Hartman
186,000 mi/sec: not just a good idea, it's the LAW!
> -----Original Message-----
> From: firstname.lastname@example.org [mailto:email@example.com]
> Sent: Sunday, March 23, 2003 6:45 PM
> To: firstname.lastname@example.org
> Subject: Re: [dvd-discuss]Lexmark Decision
> Having gone through some of the findings from the Eastern
> Kentucky court, the
> case has bizarre features. Lexmark copyrighted 37 and 55
> byte programs.
> Lexmark has a copyright on the programs registered with the
> copyright office.
> SCC copied the program verbatim. The judge went to great
> pains to point out
> that SCC could have done all sorts of things to replicate the
> functionality and
> do the authentication sequence but did not. Where I think the
> judge erred is
> not in his reasoning but his application of the law. The DMCA
> is not involved
> at all. Given the validity of Lexmarks copyright, then this
> is merely a case of
> copyright infringement. The authentication is NOT an access
> control, using the
> judges own reasoning. So the DMCA really isn't involved. Now
> I have doubts that
> Lexmark's code is truly copyrightable. The judge made
> comments on how Lexmark
> made created choices regarding algorithms and the like. I
> don't see that a
> choice of algorithms is copyrightable nor that it is truly
> possible to be
> creative or original in 37 or 55 bytes.