Lexmark v. Static Control was decided the other day. It makes for interesting reading if you’re into the copy and use-protection debates.
In this case, Lexmark, who makes printers and toner cartridges, was attempting to force people to continue to buy their supplies from them (the Xerox business model) by including a chip in the toner system that would report back to the printer when it was low on toner. Anyone who wanted to make compatible replacements would have to duplicate or copy their software. Of course, they claimed a copyright on the content of the software in order to prevent this.
Static Control came along and created their own replacment toner carts, selling them for less (since they didn’t have to use them to subsidize printer sales.)
Anyway, no more commentary (gotta study for Crim Law) but here’s some choice quotes:
The Toner Loading Program for the T520/522 printers comprises 33 program instructions and occupies 37 bytes of memory, while the Toner Loading Program for the T620/622 printers comprises 45 program commands and uses 55 bytes of memory. To illustrate the modest size of this computer program, the phrase “Lexmark International, Inc. vs. Static Control Components, Inc.” in ASCII format would occupy more memory than either version of the Toner Loading Program.
(incidentally, I had never been aware that there was a “de minimus” level at which an idea becomes so simple that there is effectively only one way to express it – good to know)
Neither do the cited cases support the district court’s initial frame of reference. Franklin Computer, 714 F.2d 1240, and Formula International, 725 F.2d 521, involved copies of Apple’s operating system program—a program whose size and complexity is to the Toner Loading Program what the Sears Tower is to a lamppost.
Just as a mathematician may develop an elegant proof, or an author may express ideas in a spare, simple, but creative manner, see, e.g., e.e. cummings, Selected Poems (Richard S. Kennedy ed., 1994), so a computer programmer may develop a program that is brief and eligible for protection. But unless a creative flair is shown, a very brief program is less likely to be copyrightable because it affords fewer opportunities for original expression.
Note to self: cite e.e. cummings in more cases.