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   Copyright for specific patterns of data?
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   Author  Topic: Copyright for specific patterns of data?  (Read 623 times)
MalComm
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Copyright for specific patterns of data?
« on: Jan 16th, 2006, 11:31am »
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Can someone obtain a copyright for channel codes (coded data symbols having specific sequences of amplitude and phase)?
 
In cellular communications and wireless internet services, channel coding converts each data symbol into coded symbols that are transmitted, for example, on different subcarriers (i.e., tones) of a multi-carrier radio signal. If one or more coded symbols are lost due to interference or channel distortions (e.g., multiple delayed reflections of a transmission combining at the receiver out of phase, thus cancelling the signal), a decoder can recover the original data symbol from the remaining coded symbols.
 
The channel codes we have patented (6 issued patents and 36 pending) have a specific sequence of amplitudes and phases that modulate the tones. These patterns are so uncharacteristic of any other channel codes that it is simple to determine if a cellular provider infringes our patents by sampling their transmissions. It appears that our codes may qualify for copyright protection under the category of literary works. When modulating tones, they may even qualify under the category of musical compositions as electronic media.
 
We have already copyrighted software for generating and decoding these signals. However, it is desirable to have a case for copyright infringement each time someone powers up their cell phone and connects to a base station.
 
We have reason to believe that certain cellular companies may be infringing our patents. However, there are certain advantages for a small company to sue for copyright infringement (in addition to patent infringement). Specifically, the damages can be greater and there may be criminal penalties for violating a copyright, but not a patent. In particular, we wish to follow the RIAA model and file suits for copyright violations against individual customers of any infringing cellular company.
 
Also, any comments regarding case law related to this strategy (e.g., the responsibility of a subscriber of a network service to be aware of potential copyright violations) would be appreciated.
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JSonnabend
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Re: Copyright for specific patterns of data?
« Reply #1 on: Jan 17th, 2006, 8:34am »
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That's an interesting approach you've outlined.  I have not seen any case law on this point, so I believe you may be in uncharted legal territory.  Much of the inquiry, I believe, will revolve around: (a) whether you've created a work (i.e., have you fixed a particular expression); and (b) whether the work has any creative component protectable by copyright.  There may even be a question of whether any work was copied.   The existence of patents on related technology may also adversely impact your copyright claims.
 
- Jeff
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SonnabendLaw
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MalComm
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Re: Copyright for specific patterns of data?
« Reply #2 on: Jan 17th, 2006, 12:49pm »
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Although no prior art has been found that is particularly relevant to our patent claims, the question of prior art that is relevant to a copyright probably needs to be researched. Fortunately, in addition to the application of our fractals for channel coding being novel, the fractal algorithms themselves appear to be novel as well.  
 
The interest in obtaining copyright protection came about when we received allowance for patent claims that recited waveforms modulated with our codes as articles of manufacture. This is how I would answer the questions of whether such implementations qualify for copyright protection.
 
a) Is the work a fixed expression?
 
The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. A basic demodulator or vector signal analyzer is all that is needed to view the pattern of our transmitted channel codes.
 
b) Does the work have a creative component protectable by copyright?
 
Mathematical algorithms, such as fractals, are used to produce artistically expressive geometrical designs, landscapes, and even musical compositions. What differentiates fractal expressions from other forms of artistic expression is that mathematics plays a key role in producing the tangible form of expression. Thus, a fractal artist may produce a recursion algorithm to achieve a particular image or melody. In this case, artistic expressions can be described precisely by an algorithm, and copyright infringement can be shown unambiguously.
 
Our coding imparts a particular structure to a transmitted wave that is conspicuously distinguishable from all other transmissions. Therefore, I would argue that this is creative.
 
Someone may argue that we are seeking a copyright on something that is not purely an artistic expression, but also has utility, and therefore we should be limited to patent protection. However, one may use a Britney Spears song as a subcarrier signal in a radio communication system and derive from it useful benefits of spread spectrum, multiple access, and interference averaging. Would reproducing and distributing a data-modulated Britney Spears song avoid copyright violation? I doubt it.  
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Isaac
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Re: Copyright for specific patterns of data?
« Reply #3 on: Jan 17th, 2006, 2:23pm »
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on Jan 17th, 2006, 12:49pm, MalComm wrote:
Although no prior art has been found that is particularly relevant to our patent claims, the question of prior art that is relevant to a copyright probably needs to be researched. Fortunately, in addition to the application of our fractals for channel coding being novel, the fractal algorithms themselves appear to be novel as well.

 
There is not really any kind of prior art question involved with copyright which is one of the reasons that Mr. Ivey indicated that whether or not there was copying is important.   If someone independently rediscovered your file format, then rediscovery would not be copying and thus not copyright infringement.  If the duplication was as a result of copying functionality, and the duplication was required in order to implement the functionality, in at least some courts, the duplication might still be found not to be copying.   IMO you are working in an area where the law is unsettled and where courts in different federal circuits might analyze the problem differently and reach different results.
 
Quote:

a)      Is the work a fixed expression?
 

 
You would address this by providing your own fixation.   Your fixation need not be the same form used by your device.   I think it's pretty much settled law that signals in transmission through the ether are not fixed copies.
 
Quote:

b)      Does the work have a creative component protectable by copyright?
 

 
I would have some quibbles with your analysis of what's protectable by copyright.   I think you overstate things by quite a bit.
 
 
 
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Isaac
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Re: Copyright for specific patterns of data?
« Reply #4 on: Jan 18th, 2006, 10:57am »
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on Jan 17th, 2006, 12:49pm, MalComm wrote:
Our coding imparts a particular structure to a transmitted wave that is conspicuously distinguishable from all other transmissions.  Therefore, I would argue that this is creative.

I certainly wouldn't argue that to a judge.  The "particular structure" imparted to the wave may be a creative work, but the "coding" is not, unless I'm missing something.   Thus, someone who used your "coding" to create his own wave would not have copied any "work" of yours in the copyright sense.
 
Your analogy to a Britney Spears song is off the mark as well, I believe.  If the song had never been recorded (i.e., fixed), then using it to modulate a signal would not render it a copyrightable work.
 
Unless your "coding" is a fixed work itself, it is not protectable under copyright, nor would works modulated by it.  Assuming that the "coding" were a fixed work, I  think you'd have a tough time arguing that works modulated by it were "derivative works".
 
- Jeff
« Last Edit: Jan 18th, 2006, 11:01am by JSonnabend » IP Logged

SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
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