RE: tlug: RMS and Amazon...

["Frank Bennett" <bennett@example.com>]

>Scott M. Stone (sstone@example.com) wrote:
>
>I feel really happy that I don't know what the hula burger was :-)  I
>bet it wasn't illegal to copy it, though.  After all, some fast food
>joint was the first to bring out a bacon cheeseburger, but the others
>all jumped on it pretty quickly and I bet they weren't sued for it.
>A bacon cheeseburger is just too easy/obvious.  As Steve noted, that is
>a point in the controversy over software patents - the patent office
>seems to set the bar too low, so people are patenting the software
>equivalent of a bacon cheeseburger.

In a nutshell:

If the Hula Burger is covered by a patent, you can be sued for
selling a loop of fried pineapple and a slice of processed
cheese on a hamburger bun.  It doesn't matter what you call
the thing, you can't legally sell it without getting a license from
the guy (and I'm sure it was a guy) who first filed the Hula Burger
patent (in Japan) or who first stacked these four pieces of food
up and eventually got around to filing for a patent on them
(in the US).

If "Hula Burger" is covered by a trademark, you can sell
a loop of fried pineapple and a slice of processed cheese
on a hamburger bun, but you can be sued if you call it a
Hula Burger.  This would be true even if that had been the
staple fare for the entire population for breakfast, lunch and
dinner since the last Ice Age before some guy decided to
call the combination a Hula Burger.  However, you may
possibly be sued if you sell this stack of four pieces of food and
call it a Hurla Burger, or if you sell a cheeseburger with bacon and call it
a Hula Burger.  But you are unlikely to be sued if you sell a portable phone
or a package tour and call that a Hula Burger, because only a dummy would
mix these up with something to eat.
(The fact that only a dummy would buy a Hula Burger in the
knowledge that it *was* something to eat is completely
beside the point.)

If the Hula Burger is covered by a software copyright, then
before you can determine whether you can be sued, you must
first disaggregate it into its constituent parts.  Then each part
must be examined to determine whether its form is mandated
by extrinsic considerations such as the mechanical specifications
of the person who is going to eat it; the compatibility
requirements for other things that it is designed to be eaten
with; the design standards imposed by the manufacturer of the person
intended to eat it; the demands of persons who might eat it, as a class; and
widespread culinary practices.  Every part whose
form is determined by such external factors must be thrown away.
If you have anything left after you've done that, compare it with an
original Hula Burger, and make a decision on whether that remainder
constitutes creative expression embedded within the Hula Burger as
a whole.  If it does, you can be sued for violating the rights of the
person who first published a Hula Burger (in the US), or who first
created one (in Japan), unless you can prove that you didn't copy from them,
or they died more than 50 years ago.


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