Dyason & Ors v Autodesk Inc

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M42 of 1990
B e t w e e n -
MARTIN PATRICK DYASON,
CHRISTINE DYASON and PETER
VINCENT KELLY

Applicants

and
AUTODESK INC and AUTODESK
AUSTRALIA PTY LTD

Respondents

Notice of motion

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J .

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TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 AUGUST 1992, AT 10.18 AM

MR J.W.K. BURNSIDE, OC:

May it please the Court, I appear

with my learned friend, MR I.G. WALLER, for the
applicants. (instructed by Nevett Ford)

MR J.McL. EMMERSON, OC: If it please the Court, I appear

with my learned friend, MR A.K. PANNA, for the
respondents to the motion. (instructed by Stephens
Solicitors)

MASON CJ: Yes, Mr Burnside?

MR BURNSIDE:

If the Court please, this is an unusual

application. This is an application to recall the
order of the Court which was pronounced on
12 February of this year. Your Honours may have
some recollection of the circumstances of the case.
It was interesting and technically complex and
difficult.
As far as it is possible, we do not intend to

rehearse the technical details of the matter, but
there is no doubt that at some point in the
application it may be necessary for Your Honours to
recall to mind some of the subtleties of the
technology involved, because it is in the
subtleties of the technology involved that one runs
into problems of the use of language which can
potentially - and, we would say in this case,
actually - led to real confusion about the things
that were being debated.
In our submission, it is plain that the Court has power to grant the application which we make.
It is equally plain that the circumstances in which

it will do so are very rare. The test, in our
submission, is clearly stated by the Court in two

recent cases: Wentworth v Woollahra Municipal
Council, (1981/82) 149 CLR 672, especially at 684, and State Rail Authority v Codelfa, (1982)
150 CLR 29, especially at pages 38 and 45 to 46.

The general statement of the exceptional

circumstances which will justify recalling an order of the Court is that without fault a party has been

denied an opportunity of being heard. We would
rely on that ground, but we rely on another ground
as well which, we submit, is open, and that is that
the decision is wrong, but we do not rely on that
simply if it affected the immediate litigants; but
it is wrong in a way which, we submit, seriously
affects a large and important part of the
Australian community, namely, the computer
industry, and we would say that the principle that
the Court will not generally recall its orders is
based ultimately on a public policy proposition,

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namely, the public interest in the finality of
litigation.
We would say, however, that we identify a

countervailing public interest, namely, that a
decision in a case of this sort standing as it does
as the only decision on the 1984 amendments to the
Copyright Act, affecting as it will a substantial
and important part of the Australian economy, such
a decision ought to be decided correctly, and ought
not be suffered to remain as an incorrect judgment,
incorrect, we would say, because it was not
debated.
Now, true it is that there is a public

interest in maintaining the finality of judgments
once pronounced, but we identify that alternative
public interest as a second justification for the
orders which we seek.
The two, at one point, converge because we say

that the only reason the decision is wrong is that the reasoning of the decision was not subjected to the scrutiny of oral argument and, if it had been -
indeed, we say it was not subjected to the scrutiny
of any argument - we are confident that the Court
would not have come to the decision which it did on
the reasoning which it adopted.
Let me say, whilst we complain that the

decision is wrong, there is not in that any great
criticism of the Court because the matter is

undoubtedly a difficult one and, in a jurisdiction
which maintains the tradition of oral advocacy, we
like to think that oral argument does play its role in helping - as Your Honour Justice Brennan said in
Codelfa, it forges each link in the chain of

xeasoning. We would say that this decision had
none of its relevant elements forged in the course
of argument and the error which we identify would have been identified had the matter been debated.

Can I start first with the proposition that we

were not heard on the relevant element of the

decision. The decision, in our submission, is
simply this, that by the mere fact of reproducing
in an EPROM the 127-bit sequence which was required
for the purposes of the operation of WIDGET.C, the
respondents had thereby infringed copyright in a
look-up table in WIDGET.C.
It is our submission that that is not a

submission which was ever expressly or even by

implication made on behalf of Autodesk. Of course,
the submissions, at various stages, made reference
to the look-up table in WIDGET.C and made reference
to the contents of the EPROM as a look-up table.

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As a matter of the use of language there is no
great difficulty with that but Autodesk never, in
our submission, submitted that the mere fact of
embedding the sequence in an EPROM could or did
constitute a reproduction in material form of the
look-up table in WIDGET.C.
Now, we have to establish for this purpose the negative proposition on which we rely, but we draw
great support in urging that negative proposition
from recognition of the general thrust of the
Autodesk case and the context in which the Autodesk submissions were made.
The Autodesk case, from start to finish,

sought to identify the thing copied as being the
program - they always spoke of one program. The
program they said was found in WIDGET.C, the
program they said was found in the AutoCAD lock,
their lock, and the program they said had been
copied, reproduced, in our lock. That was the way
the case was put from start to finish.
That point is plain by reference to all of the

relevant documents that brought this litigation
before the Court. It is plain from the application

by which the action was commenced. It is fairly
plain, we would say, from paragraph 3 of the
statement of claim. It is abundantly plain, in our submission, from the notice of appeal which brought
the matter before this Court, and it is equally
plain, in our submission, from the written outline
of argument upon which Autodesk relied in this
Court.
Now, when the affidavit material was put together for this case we had proceeded on the
assumption, wrong as it turns out, that the appeal

books were still with the court. We have since
learnt that some copies of the appeal book are
still with the court but not all of them.

Accordingly, what we have done is to produce
multiple copies of the documents that I have just
referred to, and with the Court's leave we would
hand them up. They are only short but we would say
they are of fundamental importance in understanding
the way we make these submissions.

MASON CJ:

I am at a loss to understand why the Court has

not got the old appeal books, Mr Burnside, and I am
not expecting you to provide an answer to that
question, but it is just surprising to me that the
Court has not got the old appeal books.

MR BURNSIDE:

Our understanding, Your Honour, from the

Deputy Registrar in Melbourne, was that some copies

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of the appeal book survived but not enough to be
available to all who need them.

MASON CJ: Yes.

DEANE J: Something seems to be going wrong, I have got all

the notices of appeal.

MASON CJ: Yes. If you would be kind enough to give the

rest of us a copy.

BRENNAN J:

How many should we have altogether, Mr Burnside?

MR BURNSIDE: Well, there is an extra one. There should be

five because the extra one for the sake of
completeness is the order of Mr Justice Northrop.

MASON CJ:	We have five now.
MR BURNSIDE:	Can I first take the Court to the application

which set this whole litigation in train. By the
application the applicant's claim an order
restraining the respondents - and I go to
paragraph l(a) - from:
reproducing in any material form, the whole or
a substantial part of, or any part of; the
computer program contained within the Autocad
lock or any adaptation thereof -

and that program, the program contained in the
lock, is defined as "the work", and the balance of
the application refers back to "the work", as
defined.
As the Court will recall, Mr Justice Northrop

found for Autodesk and made orders which relevantly
follow the language of the application. It
provides for an injunction restraining our clients

from reproducing "the work", which is defined as: the computer program contained within the
autocad lock.

The notice of appeal seeks from this Court only one substantive order, found in paragraph 3(b) of the
document, an:
Order that the Respondents and each of them be
restrained from authorising the reproduction
in any material form of the whole or a
substantial part of the computer program
contained within the AutoCAD lock.

The outline of argument, after identifying -
perhaps I should take the Court first to
paragraph 2 in which they say what questions are

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raised for determination - two distinctions they
say, each of which plays some part in other aspects
of copyright law, the distinction between an idea
and the working out of that idea in the copyright
work, the distinction between a work and the
mechanism used to implement or reproduce the work.
That formulation of the questions which arise

is of fundamental and pervading importance in
understanding the submissions which were made to
this Court; important because we will contend
hereafter that at all stages the argument advanced
by Autodesk was to the effect that there existed
one program which was to be found manifested in
somewhat different form in various places, in
WIDGET.C, in their lock and our lock and that that
program was worked out in different ways in those
different places, the differences in working out
being necessary mechanical differences to account
for the differences in the technology used.
Those differences were said to be inessential,

and the way in which they sought to make good the
proposition that the program was the same program,
was by identifying in each of those three places,
the way the program worked - the way it worked, and
where there are references in the submissions to
the fact of there being a look-up table in WIDGET.C
and the fact of there being what was called a
look-up table in EPROM, was not by way of advancing
the submission on which the judgment ultimately has
turned, but rather by drawing attention to the fact
that the program had similarities, that the way of
working out the program, or implementing it in
different places, had similarities of method and,
in our submission, that is the way they were
putting their case.

DAWSON J: Paragraph 9 seems to suggest they were putting it

in a number of ways.

MR BURNSIDE: Well, except, Your Honour, they are talking

always about the program in AutoCAD; the program in
the AutoCAD lock; program in both locks or partly
in - - -

DAWSON J:

One or other or partly one or partly the other.

MR BURNSIDE:

Yes.

Can I now take the Court to paragraph 5

of the outline, because it is there that the
program is identified. They say:
The program could have used any arithmetic or

logical steps to work out the basic idea. The
particular program chosen has two aspects:

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(a)

It receives incoming digital information and detects whether each digit is the same as or different from the preceding digit. If the two are different and the
change is in a particular direction then
the program steps on to the next stage.
Otherwise it does nothing.

(b) At each step the program puts out a digit which may be O or 1 according to a

specific predetermined sequence. The
sequence is chosen so that it is
essentially impossible for an outsider to
duplicate it by guesswork or accident.
It is 127 units long followed by a "wrap

around" feature which takes the program
back to its initial state.

DAWSON J: But if you read the next paragraph it is made

plain what they say.

MR BURNSIDE:	Yes.
The program is implemented in different ways
in the computer and in the lock.

But the last sentence of that, we would say,
is - - -

DAWSON J: Well, you should read the lot because really that

is essential to it.

MR BURNSIDE:

In the computer it is implemented in software

and the digits to be output are stored in its

memory in what is described as a lookup table.

In the appellants' lock the program is

implemented in hardware.

The digits to be

output are generated by electrical circuitry

and then stored temporarily in a small memory

unit (called a shift register) before being

put out.

The respondents' lock implements the

program in a mixture of hardware and software,

but the essential digits to be output are
stored in its memory in a lookup table. In

each case features S(a) and S(b) are present

and the sequence of digits is identical.

Now, the reference to the essential features of the program being present in each case is important, because each case refers to three things: each of

the two locks, plus WIDGET.C. Now, what is crucial
for the Court to bear in mind is that the
AutoCAD lock does not have a look-up table. Now,
in our submission, the fact that the AutoCAD lock
does not have a lookup table serves to cause one to
understand these submissions in a way which is

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entirely inconsistent with the express
submission - - -

DAWSON J:

You say that, but you could, by use of the

AutoCAD lock, and indeed one of the respondents did
just this, you could discern what the look-up table
was in WIDGET.C.

MR BURNSIDE: With respect, no. With the AutoCAD lock - and

the evidence supports this, Your Honour - by
observing the output of the AutoCAD lock you could
not even discern whether there existed a look-up

table in WIDGET.C. The evidence was quite clear on
that. Observing the output of the lock told you
nothing about WIDGET.C. If it happened that the
way in which the program was implemented in
WIDGET.C involved reference to a table, then
necessarily the table must have the same
constituents as the EPROM in the Kelly's lock.
But that is really quite a separate matter, in

our submission. May I say this: the importance of
the way in which Autodesk put their submissions is
this. They were at all times saying, "You don't
need to worry too much about the details of
implementation. They're just mechanical aspects of
the problem with which copyright law is not
concerned." They say rather, "In order to see
whether or not the programs are the same, look at
the ways in which things have been done; look at
the methods adopted."
They drew attention to the fact that there was a similarity in method or a certain parallel
between the method in fact implemented in WIDGET.C
and the method in fact implemented in Mr Kelly's
lock, but to say that is not to rely on the
existence of two look-up tables without more, but
rather to rely on the existence of look-up tables
as one of the points of similarity of method of
implementing the program. Those things are, in our

submission, entirely different. If I may say so, the difference is highlighted
by considering the form of the orders sought, both from Mr Justice Northrop and from this Court. The
order sought from this Court was an order to
restrain copying the program in the AutoCAD lock.
The one thing that would not be restrained by the
making of that order is a copying of the look-up
table, because that is the one element of WIDGET.C
that does not exist in the AutoCAD lock.
Equally, it would appear from the reasoning of

the Court that if Mr Kelly had broken open an
AutoCAD lock, had noticed that it contained a shift
register and an exclusive-or gate, he could then

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have simply put together those components and
produced a lock which was identical with the
AutoCAD lock but which, on the reasoning of the
Court, would not have infringed WIDGET.C for the
reason that it did not contain a look-up table.
In our submission, such a result would be

surprising and it suggests, in our submission, that
there is something wrong in the reasoning which
takes us to that result. In our submission,
Autodesk never made the express submission which
has ultimately found its place as the crucial point
in the reasoning of the Court.

BRENNAN J:

Mr Burnside, thus far your argument has

proceeded on the footing that there was no relevant
program in the lock. That of course was not the

basis on which the Court's decision went.

It was

that there was a program in WIDGET.C. I appreciate the force of your argument that that was the way in which the appellant previously put its case, but

the problem that we face now is this, is it not:
was the argument which found favour in the Court's

judgment one which was fairly raised? You have to

address that negative, do you not, rather than to

address the positive?

MR BURNSIDE:

Indeed, Your Honour;

I accept that.

One way

in which we address the negative is by having a
look at the way in which the case for Autodesk was
affirmatively put. In our submission, one has to
understand the context of the submissions in order
to understand precisely the way they intend the

language they use. The area is complex, and
Your Honour Justice Dawson clearly stated in your
reasons for decision how the use of language can be

deceptive, and we accept that. One needs to bring
to bear on an analysis of the submissions by
Autodesk exactly that same critical attention to
the way in which language is being used.

We would say, for example, that it is

inconceivable that Autodesk would have put forward
the express submission which has provided the
turning point of the decision for this reason:
that it would not even have supported the order
they sought, could not have supported the order
they sought. A decision which is based on the
proposition that reproduction of the look-up table
in an EPROM is an infringement of WIDGET.C says
nothing about reproduction of the AutoCAD lock. It
just cannot, simply because the subject-matter
which is identified as having been copied does not

exist in the AutoCAD lock. "Why", one asks, "would
counsel as eminent as Dr Emmerson advance a
submission which could not, on the most superficial

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analysis, take him to the goal he was after?" We
say not only - - -

DAWSON J:

It is apparent from paragraph 6 that they were
saying what the program was in the computer. It

was implemented in software. In the lock it was

implemented in hardware.

Now, they may have been

wrong in saying that it was an actual program in

the lock, but it is plain enough what they are
saying.

MR BURNSIDE:

Yes, Your Honour, but the program that they

identify, in our submission, is not merely the
look-up table in WIDGET.C - - -

DAWSON J:

No, no, that is right, but the look-up table is a

substantial part of the program, and the Court so
held.

MR BURNSIDE:

Yes, but with respect, Your Honour, we would

say that had the matter been debated on this
territory, we would have met that by saying that on
no proper understanding of the test of
substantiality could the look-up table be regarded
as a substantial part of the relevant program.

DAWSON J: Well, perhaps you should have put that argument,

but paragraph 6 of the outline, if we just take
that, should have alerted your mind to it.

MR BURNSIDE: Well, with respect, Your Honour, we find that

very difficult to accept because, in our
submission, one has to understand paragraph 6
within the context of the outline, and against the
submissions which were actually made in oral
argument to this Court. And, in our submission,
even doing the best we can after the event, we do
not see in the argument put before this Court an
express submission of the sort which has ultimately
proved to be the turning point.

DAWSON J: Well, if you take the sense - the respondent's

lock implements the program in a mixture of
hardware and software, but the essential digits to
be output are stored in its memory in a look-up
table.

MR BURNSIDE:

Yes.

DAWSON J: Well, the whole case points to the essential

nature of the look-up table.

MR BURNSIDE:

What it is doing there, in our submission, is

identifying the fact that one method of working out
the program is to store the digits and have a
routine which sends them off each in their turn, or
looks at them each in their turn depending on which

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aspect of the matter you are concerned with. But
that, in our submission, involves saying to the
Court that the same program has different ways of
being done, and if you find two ways of doing the
same thing that have sufficient parallels, then you
have infringement. But this is not, in our
submission, a submission which says merely by
embedding in EPROM the 127 bits you thereby copy a

substantial part of WIDGET.C. Now, I wanted to
take the Court -

BRENNAN J: There are two problems, are there not? By

embodying something in the EPROM you have created
something. The question is whether the something
that is thereby created is a copy of a part of a
program. Your argument is the only program that it
was ever said to copy was that in the AutoCAD lock.

MR BURNSIDE:

No, Your Honour, we do not say that.

We say

that the argument always was that our lock
contained a program both by the fact that it had an
EPROM with certain digits in it, plus the
supporting electronic bits that caused those to be
sent off in the right order. The AutoCAD lock had
the same program done in a somewhat different way
but having the essential element of responding to
transitions and sending off the digits in the right
order. And WIDGET.Chad a program in which it
initiated transitions and checked incoming data by
reference to a procedure which took it through a
look-up table in the required manner. But the
point that was being made at all stages, as we
understand it, then and now, was that it was the
similarities of method and the fact of there being
identical output, that was what was the
infringement.

DAWSON J: Mr Burnside, can.I ask you this:

assume that the

respondents had direct access to WIDGET.C and to
the look-up table in WIDGET.C and then, by use of that access, they reproduced the 127-bit sequence

in the EPROM, would there be any infringement of
copyright?

MR BURNSIDE:

We would submit, no, and the reason - it is an

interesting example. It actually raises some
additional issues which we say are latent in this
line of argument and would have to be explored if

this line of argument were open to Autodesk. It
would raise squarely this problem: the definition
of computer program refers to a set of instructions
with the relevant characteristics, whether with or
without related information.
That parenthetic reference to related

information raises squarely the question whether
the related information, not itself being

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instructions, is brought within the scope of the
protection or is implicitly excluded from the scope
of protection. It is a non-trivial question
because if it is brought within the scope of the
protection then one has, in the Copyright Act, by a
side wind, a way of directly protecting information
by way of copyright. And that is a remarkable
novelty if it is the law.
If it excludes related information, and we

would say that has to be the correct interpretation
of the '84 amendments, if the definition of
computer program excludes related information and
if all that is taken is the related information,
then one has to look at that information to see
whether by any other copyright test it is entitled
to protection and whether it has been infringed.
That would raise, directly, questions of

originality of the thing - - -

DAWSON J: That is on the assumption that the look-up table

is just information and is not part of the program.

MR BURNSIDE:

No, with respect, Your Honour, program is

defined as an expression of a set of instructions.

DAWSON J: Yes.

MR BURNSIDE:

Whether with or without related information.

The look-up table, plainly, on the evidence, was
not instructions, it was just data.

DAWSON J:	I am not sure that that is so.
MR BURNSIDE:	With respect, Your Honour, the experts agreed,

they all agreed that the 127 bits were simply data
and the very notion of a look-up table, we would
say, understood by any person in computing, would
be that it is a table where static data is to be
found and which can be accessed and used in any

relevant way by the program, the instructions.
In our submission, it would be an extreme step to take for the Court to hold that the data which
accompanies a program is itself brought within the
ambit of the provision that protects computer
programs.
There is another aspect of this, and it arises in any event, and that is the question of
substantiality. In the judgment as we understand
it, the reasoning is that because the look-up table
is essential to the correct operation of WIDGET.C,

it is therefore substantial. We say two things
about that. First of all, the comparison with
WIDGET.C is probably not the correct comparison,

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because the look-up table in WIDGET.C is
undoubtedly not the same as the look-up table in
the EPROM.

DEANE J:

Mr Burnside, I have not quite followed why you say

that the contents of the look-up table do not
constitute a set of instructions. What exactly do
you mean by a set of instructions?

MR BURNSIDE:

When I refer to a set of instructions,

Your Honour, I refer to portions of code in a
computer which tell the computer to do something,
albeit at a very low level.

DAWSON J: But if they tell it to do something in relation

to something, then that is part of the
instructions, is it not?

MR BURNSIDE: With respect, no, Your Honour.

DAWSON J: That is the argument you put, and that seems to

me to be untenable. It is true that if you take
them in isolation and say, "Look, there's a table",
it is not part of a set of instructions, but put it
in the instructions and the instructions are
nonsensical without reference to it, then surely it
forms part of the instructions.

MR BURNSIDE: That, we would say, Your Honour, is an

argument which is - it would be a very interesting
argument and a very important argument too, if I
may say so, but on the evidence it seems plain that
no expert on either side would embrace the idea
that the sequence of digits were instructions or
parts of instructions.

At the special leave application,

Justice Gaudron suggested to me that the 127-bits
might be instructions. Our response then was that
that had never been pleaded or argued, nor did the

evidence support it. Your Honour, as we recall it,

agreed with that proposition. Nowhere has it ever
been suggested by Autodesk, either before or since
that exchange at the special leave application,
that the Court ought to treat the contents of the
look-up table as instructions.
We would say it is simply not open to them at this stage to rely on such an argument. If they
sought to, we would say it is incorrect. If any
decision which proceeds from the assumption,
express or implied, that data held in a look-up
table, the sequence of digits held in a look-up
table, constitute instructions rather than
information, in our submission that is a decision
of the widest possible consequences. Take, for
example, the case where it was the alphabet stored.

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DAWSON J:

But no one ..... instructions by themselves, but

when you cannot understand the instructions without
reference to it, it forms part of the instructions;
that is the point.

MR BURNSIDE:

I understand that, Your Honour, but even so,

there is nothing odd about the proposition that
instructions by themselves may not have meaning
until they relate to a set of data to which they
draw attention.

DAWSON J: There is nothing odd about the proposition that a

set of data can form part of a set of instructions.

MR BURNSIDE:

It depends on exactly how that is put.

course, if the instructions are incomplete because
they refer to a table of data that is empty, then
the instructions will have nothing to operate on,
but by giving them something to operate on, in our

submission, you do not thereby convert data into
parts of instructions.
If you do, then it would seem that the

Parliament has inadvertently provided direct
copyright protection for information as such,
because by embedding it in a program, you simply
make it part of an instruction and therefore
protected. If that is the law, in our submission,
there has been a radical change in the reach of
copyright protection.

BRENNAN J: Could you help me a little because I am not sure

that I am following this argument which is
obviously important, as well as I should, and I
would be grateful if you would bear with me if I
say that in my elementary appreciation of things if
I type on a computer, for example, the instruction
"del" followed by a file name then there will be a
deletion of that file. Now, when I type "del" and
the file name something is transmitted to
somewhere. Is the something that is transmitted to

somewhere information or part of a program?

MR BURNSIDE:

The difficulty with the example, Your Honour,

may be that by merely typing in the instruction as
a direct instruction to the machine it is difficult
to know whether you have brought into existence a
computer program.

BRENNAN J:

I was not suggesting that I had brought one into

existence. In fact, the question would be whether
I had activated a computer program.

MR BURNSIDE: Undoubtedly.

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BRENNAN J: Then, what is the difference between what is

transmitted from my keyboard to the processing unit
and the 127 bits of information?

MR BURNSIDE:	The program that Your Honour identifies is the operating system program. Taking Your Honour's
example, I assume it is a PC?

BRENNAN J: Yes, the simplest form.

MR BURNSIDE:

And the program invoked would be "Command.Com"

which contains within it the ability to understand
that command and do what Your Honour would expect
it to do with it. But by doing that there is
nothing in "Command.Com" that knows about the file
name, but it is able to recognize the file name as
pointing it to somewhere in the file allocation
table and the directory, and if it finds a file of
that name it will do what the "del" bit tells it to
do. But I am not confident that I understand
whereabouts Your Honour draws the analogy with the
127 bit sequence.

BRENNAN J: Here is an operator who has the machine with

your client's equipment attached to it; it types
an instruction; the instruction generates, in some
way, the 127 bits; those 127 bits find their way
to the look-up table; the machine goes into
operation. What is the difference between that and
my typing "del"?

MR BURNSIDE:

When you say the 127 bits find their way to

the look-up table, is Your Honour talking about
someone programming the WIDGET.C itself?

BRENNAN J: As I understand it WIDGET.C is in the machine to

which your lock is attached.

MR BURNSIDE:

Yes.

BRENNAN J: And when the operator operates the machine with

your lock attached 127 bits of information find
their way from your lock to the look-up table in
WIDGET.C.

MR BURNSIDE:

I thought that was what Your Honour was

putting, and the evidence does not support that
that is what happens. There is no evidence, as I
recall it, about exactly how it is that WIDGET.C

uses the 127 bits it receives from the lock. We do
know that it compares it - it compares each
incoming digit with its own look-up table to see
whether it is what it expected to use it.

DEANE J:

But you just said what His Honour said.

I mean,

you said WIDGET.C receives the 127 - - -

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MR BURNSIDE:

Yes.

DEANE J: That is all His Honour put to you.

MR BURNSIDE: Well, His Honour said it finds its way to the

look-up table which, I was concerned, might have
been a very precise statement which, in our
submission, is not what happens.

DEANE J: But for what His Honour was putting to you, would

have been sufficient to say, "Find there way to
WIDGET.C" and produce the consequence.

MR BURNSIDE: Well, I have some difficulty with that, with

respect, Your Honour. All we know is that WIDGET.C
forms an expectation, if I can use a metaphor,
about what digit should come in next; it looks at
what digit comes in next. Whether that involves
the incoming data going to the look-up table is

really a separate question. I was concerned that
His Honour's example was intended literally.

DEANE J: But assume that instead of this somebody wrote out

the 127 series and then physically transmitted the
electrical impulses to WIDGET.C following the
written series, would you say that the written
series was not a computer program?

MR BURNSIDE: Certainly.

DEANE J: Well now, that is what I do not quite follow why

it is not.

DAWSON J: Or part of a computer program.

MR BURNSIDE:. That gets back to the earlier question,

whether data stored within a program is included
within the coverage of the protection given to
programs.

DEANE J:

I follow that and for the sake of my question
assume that that definition does not make what is
in parenthesis, the computer program. Well now,

why is that not a set of instructions? I mean,
that is all it is, is it not?

MR BURNSIDE:	The 127-bit sequence?
DEANE J:	Once it is written out and used as the basis for

transmitting the 127-bit continuous series to
WIDGET.C.

MR BURNSIDE:

Your Honour, we would answer that in several

ways: first, simple bits of information which, on
any interpretation, do not tell anything to do
anything, cannot properly be described as
instructions, at any level of discourse; second,

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all the evidence from the experts was that the
127-bits are data, not instructions, and we rest on
that independently; third, we would say that even
if, as a matter of language or, on the evidence, it
was open to argue that the 127-bits alone
constituted instructions, that is not a case we
have ever met and it is not open to Autodesk to
rely on it for the purposes of this Court's
decision.

DEANE J: Well now, this is not said critically: you are

saying those things, and I know you say them, but
you have not demonstrated their correctness to me.

MR BURNSIDE:

I will ask Mr Waller to get together some

transcript references from the trial which
demonstrate what I have said to Your Honours, that
the witnesses said that the bits are data, not
instructions. That may take a few moments.

DAWSON J: Is it a matter for expert evidence; I mean, it is a matter of language, is it not, once you know what

use they are put to?

MR BURNSIDE: With respect, Your Honour, we would say that

it is a matter for expert evidence, not the least
for the reason that the Court is likely to get
great assistance from experts in computing about
the meanings of words in the definition of
"computer program", especially when the language

used is inevitably the language of metaphor. Now,
there are arguments at various levels of generality
about why it is that the 127-bit sequence should
not be regarded as instructions and one of those
arguments depends on expert evidence to that
effect. There are other arguments about it.
We would say, with respect, that today is

probably not the right occasion for that debate
because, first, in our submission, it is plain, on
the way the case has developed, that that was not

the case sought to be made by Autodesk and it is
just too late for them to seek to rely on it before
this Court. Second, we would say that if it is
open to them to raise it, it raises quite complex
arguments which would have to be dealt with at
length and, if the Court were so minded, it is the
sort of argument that might need to be had on a
further hearing of the appeal if the Court thought
the point was alive.
What I am concerned though is to avoid not doing justice to the argument by attempting to deal
with it fully today because it really goes to one
element of the merits of the appeal if the Court is
of the view that it is a point that is alive and
was not debated before.

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DAWSON J:

You say you turned your mind to it at the trial

and you adduced evidence that the 127-bit sequence
was data and not instructions?

MR BURNSIDE:

We certainly got that evidence, yes, which was, of course, directed to meeting the assertion

that our lock contained a program and as

Your Honours' reasons for decision point out, the

courts below focused closely on the question

whether there existed in either of the locks a
computer program. It is true that that was the

principal field of battle in the courts below.

course an argument which demonstrates that our lock

contains nothing but an EPROM containing data is,

we would submit, a powerful demonstration that

there is not a computer program in our lock.

BRENNAN J:

So anybody could copy your lock?

MR BURNSIDE: Sure, yes.

BRENNAN J: Anybody could copy your EPROM?

MR BURNSIDE:

Yes.

BRENNAN J: Assuming that your EPROM was original and so

forth, there would be no question of breach of
copyright in doing so?

MR BURNSIDE:

We would not think so, Your Honour, because

the 127 bits of data in our EPROM, we would say,
could not possibly qualify for protection as a
computer program because they are not instructions.
The EPROM itself is someone else's hardware device, we have no rights in relation to that.

DAWSON J:

Why would not it be a table or compilation,

whether or not in visible form?

MR BURNSIDE: That raises questions - I am glad Your Honour

of the case was one which, as the Court noted, was asked that because the table or compilation aspect

not advanced by Autodesk at all. We would say
there was a very good reason for it and that is
that tables and compilations give rise squarely to
interesting questions about originality.

Originality of the 127 bits was an issue which never arose but if the argument on which the decision, as it turned - - -

DAWSON J:

I thought it did and it did in argument.

It was

pointed out wrongly what the power of it was. In
fact, the number of variations is two to the power
of 127 and that aspect of it was dealt with in
argument before this Court to show that, in fact,
you could not arrive at this compilation just by
chance.

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MR BURNSIDE: There are two aspects of this, Your Honour.

If what is alleged to have been taken is simply the
127 bits in the Autodesk program then one has to
look to see whether the thing taken is substantial
and that involves a consideration of its
originality. And originality of the 127 bits, as I
say, is an issue which would have arisen on this
analysis had it been debated. And the way it
arises is this: it appears to be assumed, without
argument, that someone at Autodesk sat down and
wrote out the 127-bit sequence, converted it into
decimal form, put it in WIDGET.C and then built a
lock that would produce the same sequence.
That, with respect, seems to be an unstated

assumption of the reasons for decision, especially
at the point in the reasons where it is said that

the 127 bits is a substantial part of WIDGET.C. In
our submission, it can be demonstrated beyond
argument that the AutoCAD lock was brought into
existence first and that the look-up table in
WIDGET.C was nothing more than a copy of the output
of the AutoCAD lock which already existed.
And it follows from that, if Your Honours will

accept that as a statement for the moment, and I
will demonstrate it shortly, then what Mr Kelly did
was to derive the 127-bit sequence by observing the
same bit of hardware as Autodesk did when it

derived the 127-bit sequence. It did not sit down

and work it out for itself. It copied the output
of the AutoCAD lock.

DAWSON J: That would not make any difference. If you have

two mirror images, taking one mirror image is a
means of copying indirectly the other.

MR BURNSIDE: Well, with respect, Your Honour, one needs to

exercise great caution. If I stand down the way
and take a photograph of the High Court from a
specific position, and someone stands in that spot

practical purposes, identical. It does not follow High Court, the two photographs will be, for all immediately after me and takes a photograph of the that one photograph is a copy of the other. If two
things are copied from the same source, then one
has to look at the originality and copyright
protection of the source.

DAWSON J: Where you do have mirror images, use of one is a

means of getting at the other.

MR BURNSIDE:

In some circumstances that is right.

DAWSON J: In these circumstances.

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MR BURNSIDE:

But, Your Honour, it is clear on the cases

which are concerned with substantiality of
reproduction - it is clear from those cases that
the originality of the bit taken is of great
importance in determining whether or not that bit
is a substantial part of the protected work. In
our submission, it is not possible to say that the
127-bit sequence is a substantial part of WIDGET.C,
much less that it is a substantial part of the

AutoCAD program. It cannot be said that it is a
substantial part if it is not shown to be original
as well. We say it is difficult in any event, but
if it is not even original, if it is merely a
slavish copy of the operation of the AutoCAD lock,
then it cannot be said to be original. And we
would say that the authorities point very strongly
against finding infringement where the only bit
taken of an otherwise protected - - -

DAWSON J:

That is putting it the wrong way.

The

originality of the table does not lie in the lock.
It lies in Autodesk of whichever the company devise
it.

MR BURNSIDE: That is the point I am trying to address,

Your Honour. We say, with respect, Autodesk did
not devise the 127-bit sequence.

DAWSON J:

Someone did.

MR BURNSIDE:

Yes.

Somebody copied down the operation of

the AutoCAD lock. Can I demonstrate why it is that
the AutoCAD lock must have come into existence
before WIDGET.C? Your Honours will recall that the
number of possible 127-bit sequences is
enormous - 10 to the 38 was the figure given.
Offhand I do not know whether 2 to the 127 is the
same as 10 to the 38, but instinct says they are of
a similar magnitude.
The hardware arrangement of a shift register

and an exclusive-or gate will only produce a very
limited range of sequences. If one regards the
sequence as circular, then a 7-pin shift register
can only generate six different circles. That
comes from the fact that the difference in the
sequences will depend on the separation between the
pins, and I think Your Honour Justice Brennan
corrected me when I asserted something rather
different at the hearing. I think Your Honour
asked me whether they would be the same if you
chose pins 4 and 5, for example. So, only six
sequences can be produced by the particular
hardware arrangement that Autodesk chose.
Now, if you take the starting point chosen as

distinguishing between one sequence from that

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circle and another sequence from the same circle,
then one can multiply by 127 the number of
sequences available from that hardware arrangement.
The different starting points were produced by the

different key embedded in the shift register. So
there are 6 by 127 possible sequences which can be generated by that hardware arrangement. That is a
total of 672.

DAWSON J: But what does it matter? I mean, if you want to

get a sequence of numbers you can do it by putting
a mechanical device into operation if you like.
You can do it by dropping marbles into a jar. But
if you then by that means devise a sequence of
numbers which you embody in a computer program,
assuming that for the moment, and someone uses the
device to copy the same part of the program, it is
a copy.

MR BURNSIDE: That is the slip, if I may say, Your Honour.

The slide is in saying you observe the lock in
order to copy the program. We say that is not an
available analysis once you understand which came
first. What you are copying is the output of the
lock. Now, can I continue the argument. There
are 762 possible sequences which could in theory be
generated by the hardware arrangement adopted by
Autodesk. That is, in our submission, clearly
demonstrable just by the logic of the way the
things work.
Now, imagine someone who was devising this

whole thing for Autodesk. They could sit down and
write out a sequence of 127 digits out of the 10 to
the 38 possible 127 digit sequences, and then cast
about for a hardware device that would produce that sequence. The odds of coming up with that hardware

device is one in 10 to the 22. The odds are
overwhelmingly against being able to come up with a
hardware device that will produce the particular
sequence that you want unless, of course, you adopt

the simplistic approach of simply putting the
digits in an EPROM.
It follows, in our submission, that it is

logically - it is vanishingly unlikely that
Autodesk produced WIDGET.C and then the AutoCAD
lock, so that what is in WIDGET.C in the look-up
table is a copy of what AutoCAD lock does in
action. It must be that way. Interestingly, the
Autodesk material in this application includes a passing reference by Dr Emmerson to the fact that
it really does not matter which came first.
We would rely on that once again as pointing out that they were not relying on this sort of
submission. It does matter, in our submission,

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which came first if the focus of attention is
whether the EPROM contents are a reproduction of
the contents of the look-up table of WIDGET.C and
nothing more, because if that is what is said then
one has to look at the originality of the look-up
table of WIDGET.C in order to see whether it can

qualify as a substantial part of WIDGET.C. Now, of
course, it is an essential part of it.

DEANE J:

Mr Burnside, I hate to bring you back to it, but I

do want to understand. If you take the example I
gave you, that is, somebody has written out the 127
series wrap-around 127, and has copied that, or
followed that, to send the electrical impulses to
WIDGET.C and to achieve the result of keeping the
thing running; if that person were asked, "What
instructions are you sending to WIDGET.C, as a
matter of ordinary language?", his answer would be,
"These", 127 series and so on. Well now, from
there, can I take you to the definition of computer
program and ask you to explain to me, not what the
experts have said, but why it is that that series
is not a set of instructions for the purposes of
that definition? In other words, I would like to
understand why it is not, rather than to be just
told that all the experts say that it is not.

MR BURNSIDE:

Your Honour, can I say we reject the starting

point; that is to say, we do not believe that any
person with the knowledge relevant to send the
127-bits to a computer in the way suggested, that
such a person would say that he was sending

instructions. We would say any person capable of

doing that would say that he was sending data. I
do not know whether rejecting the starting point
prevents me from dealing with the rest of the
question.

DEANE J:

I would like to understand why you reject the

starting point, and I think really all I am asking
is what Justice Brennan asked you in a more

sophisticated form.

MR BURNSIDE:

I suppose the answer is, Your Honour

DEANE J: Justice Brennan thinks his was a simpler form.

MR BURNSIDE: I may be losing my touch. I do not think

either of them is simple; I just think they are

both wrong. The difficulty is, Your Honour, that
if you accept that anything sent into a computer is
an instruction, then you have wiped out the
distinction between programs and input.

DEANE J: Can we go to the definition.

If I send that 127

series manually to WIDGET.C, does it cause a device

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having digital information processing capabilities
to perform a particular function?

MR BURNSIDE:

No, it does not cause it to perform a

particular function any more, we would say, than -
take the example of keying in a novel, typing a

novel into a computer. Of course, the act of
typing in the novel will cause the words to show on
the screen and to be stored, at least temporarily,
in memory, but we would say it would be a serious
misuse of words to say that by typing a novel you
are programming a computer.

DEANE J:

I have no problem with that, but if I type in a

novel, the novel does not produce the consequence
that the machine is capable of functioning.

MR BURNSIDE:

You are right in the specific example, but it

is quite easy to suppose a case where you type in a
word which causes the machine to stop. It does not
follow that typing in that word is the same as

typing in a program or an instruction. May I say,
Your Honour, it does depend in part on how close to
the thing you stand, because at one level of
analysis, pressing a key implements instructions at
a very low level. Those instructions cause the
letter to be shown on the screen in the way that
you expect. But the fact that you pressed the key,
in our submission, whilst it activates a set of
instructions embedded in the computer, is not
itself an instruction.
In the same way, sending bits of data to a

computer may activate instructions in WIDGET.C - we
do not have a difficulty with that - but it is an
altogether different thing to say that the data
which activates the program is itself an

instruction. If sending one or other of the bits
of data comprising the sequence, if that process is
described as giving instructions to the computer,
then by exactly the same reasoning, pressing a key

in the course of typing a novel is also an
instruction to the computer.
The difficulty with either analysis, we would

say, is that neither properly understood causes a
machine with the relevant characteristics to

perform a particular function. It causes it to do
something but it does not cause it to perform a
particular function. If that is not right, in our
submission, then the distinction between programs
and input has been obliterated and the protection
of copyright through the definition of computer
program extends to information in any form provided
it gets into a machine.

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DAWSON J: That is an in terrorem argument, but we have got

to look at the words. For the life of me, I cannot
understand, Mr Burnside, if a computer is
instructed to do something by reference to a
look-up table, the look-up table does not form part
of the set of instructions. It is just a matter of
plain language.

MR BURNSIDE:

We would say, Your Honour, that it is related

information which -

DAWSON J:

You are having us dance on the head of a pin.

MR BURNSIDE: With respect, no, Your Honour. There are some

important considerations of policy why one should
consider static data contained in a look-up table,
for example, as being distinct from the program
which has access to it. At least one of those is
concerned with the way in which interoperable
systems are produced.
Now, I hesitate before raising such a daunting

title. We sought to put before the Court a paper
written by an organization which represents
Australian computer manufacturers who devise
interoperable systems. All it means is that two
systems produced by different manufacturers may co-
operate with each other. So, a classic example is
a printer produced by one manufacturer can be
hooked into a computer produced by another
manufacturer and the two will co-operate, and what
they do between themselves looks simple but in fact
is extremely complex, because if any two bits of
computerized equipment are to work together in
harness each must conform to a set of electronic
protocols which is set by one or the other.
It is frequently the case, and this point is

made in the paper that we have sought to put before
the Court, that the interoperability of different
systems depends on the provision of static data in
one form or another in both of the systems.

Now, by providing copyright coverage for the

static data in the machine of the first of the
manufacturers is to provide, in effect, for it to
be impossible for interoperable systems to be
devised, and that would be so if you did nothing
more but analyse, as the industry presently does,
the input and output requirements of the first
system in order to see what it needs to receive if,
say, a printer is going to communicate with it
successfully.
Now, we venture to say that the Court did not

have in mind that sort of consequence when making
this decision, and we venture to say that that is

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because the point was not adequately exposed and
was not adequately argued. Indeed, not
argued - - -

BRENNAN J: That seems to me to raise the point quite

acutely, Mr Burnside.

MR BURNSIDE:

Yes.

BRENNAN J: But it seems to me that it raises the difficulty

not perhaps with the Court's reasoning as with the
language of the definition because if, for example
- and let me come back to the proposition
Justice Deane was discussing with you a moment ago
- you typed the letters "the" and they come up on a
screen or they are printed by a printer then no
doubt there is no copyright in the word "the", but
what has happened, as it seems to me, is that by
touching the keys "t" and "h" and "e" a series of
instructions have been given which result in that
word appearing either on a screen or being printed.
Now, if nothing external having been fed in,

the typing of "the" results in either of those
things, it seems to me that the intermediate steps
bid fair to satisfy the definition.that is in the
Act.

MR BURNSIDE:

I accept that, Your Honour; we may have two

different streams of argument mixing here. The
example I gave about typing in a novel or the word
"the" is directed to the proposition that pressing
the key on the keyboard cannot properly be regarded
as an instruction within the meaning of the
definition, because if it is, every novel is a
computer program.

BRENNAN J: That is not so though, is it? I mean, the

second proposition does not follow from the first.

MR BURNSIDE: Well, step back one level of generality,

simply sending an input to a computer cannot
without more be said to be an instruction to the
computer notwithstanding that it causes the
computer to do something; pressing the letter "t" on the keyboard clearly causes the computer to do something. But that fact can be explained by the
fact that it merely activates a program which is
ready to receive input of a certain sort and to act
on that input; that does not make the input an
instruction. At least, we would submit that the
Parliament did not intend that sort of input to be
understood as an instruction within the meaning of
the definition.
So, if that is right so far, one has to look

at the nature of the input a little further to see

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whether it independently can be understood as a set
of instructions within the meaning of the
definition, and of course it is possible that a
program can be fed into a machine bit by bit by the
sort of process Your Honour suggested; pretty

uncommon, but it is possible. One has to look at
the content of the input in order to see whether in
truth it is data or other input or whether in truth
it is instructions.

BRENNAN J: Well, is this your proposition, that a computer

has both input and output; neither of those is
capable of answering the definition, but only that
which transmutes the input into the output.

MR BURNSIDE:

As a general proposition, we would accept

that, Your Honour, but at another level it is
possible that the input itself is a program, which
you are keying into the computer.

BRENNAN J: Well, it will not be a program until it is in

the computer.

MR BURNSIDE: Well, it might; I mean, if I write a program

in basic on a piece of paper and key it into the
computer, we would not resist the proposition that
at every level of the process it is a program, and
what it is doing as you key it in and showing the
individual words of the instructions on the screen,
is that you are taking a program on paper and
converting it into a program in the machine by
harnessing yet another program which knows how to

accept that input. So it is both input and a
program depending on which level of analysis you
adopt. Which is why you cannot simply accept that
it is going into the machine and is therefore an
instruction; that analysis, in our submission, is
flawed, you have to take it further.
Now, because a consideration of what the input

is doing may involve complex matters of technology,

we would submit that it is perfectly appropriate to rely on expert evidence about the character of that
input, and it is our submission that the evidence
was all one way. But let me say this, as a matter
of procedural fairness, we would say that it is
just not open to Autodesk now to try and justify
the orders they seek by saying that the 127-bits
constitute a set of instructions. That is
something which this Court has not thus far adopted
and we do not see it as being available, with

respect, at this late stage. Can I give references
that I promised Your Honour Justice Deane,
references to the appeal book, pages 293 to
294 - - -

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DEANE J: What appeal book is this? The application book or

the old appeal book?

MR BURNSIDE:

No, the appeal book that was before this

Court. That is 293 to 294, also at 927, that was
Professor Dillon, one of the experts called by

Autodesk. The other reference that we have picked
up is at page 135 of the appeal book, which is
Mr Ford. Mr Waller tells me that the reference in
Professor Dillon's evidence is that the look-up

table in WIDGET.C is data, not instructions. The
reference in Mr Ford's evidence is that the

contents of the EPROM is data, not instructions. I

should say that my recollection is that there are other references to the same effect but those are
two which, in our submission, are probably
sufficient for the purpose.

Before I continue with the submission that I was deflected from, can I hand up to the Court a
document which perhaps more succinctly and, I hope,
more understandably sets out the reasoning on which
we rely to demonstrate the proposition that the
AutoCAD lock must have been brought into existence
before WIDGET.C.

MASON CJ:	Thank you.
GAUDRON J:	Why would one not, on that view, simply regard the AutoCAD lock as the means of generating the
sequence that is subsequently found in WIDGET.C,
like taking marbles out of a barrel.
MR BURNSIDE:	We would accept the first part but not

necessarily the second part. The point to which
this is directed is the question whether data that is part of a program and which is essential to the
operation of the program can be a substantial part
of the program when that data alone is taken. The
fact that something is essential is not the same as
saying that it is substantial for the purpose of

infringement. One of the most important
considerations in determining whether something is
substantial depends on whether or not it is
original taken by itself.
Take a railway timetable. There is no doubt

that a railway timetable attracts protection but
two people can produce railway timetables by each
observing the comings and goings of trains and the
second in time will not be an infringement of the first in time even though everyone knows that the first in time has been produced by an observation
of the very same things observed by the one who
produces the second.

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If the AutoCAD lock is observed in operation

and its operation leads to the look-up table in
WIDGET.C by a simple copying, as we say it must
have done, and if Mr Kelly's device is produced by
the same observations -

GAUDRON J: That does not answer the question why it is not

to be regarded as the equivalent of a mechanical
device which throws marbles out of a barrel.

MR BURNSIDE:

The reason I baulked at that is that a machine

that throws marbles out a barrel will probably

throw out different marbles every time. If you
postulate a machine that throws out the same
marbles in the same sequence every time, we would
adopt that and we would say that it is open to
Mr Kelly to look at the marbles and look at the
sequence in which they are thrown out and to create
a device which will generate the same - - -

GAUDRON J: But the point I am making is that on your

argument that the numbers having been thrown out,
if you like, having been returned to the barrel and
thrown out twice, three times, what have you, that
is just a means of generating the sequence which is
itself the original work and is in WIDGET.C.

MR BURNSIDE:

It generates the sequence which is translated

through WIDGET.C into the Autodesk program, yes, but we would submit that there is nothing in the
law of copyright that prevents a person from
observing the same barrel and writing down the
numbers in the sequence in which they emerge, and
inevitably it will produce the same sequence as has
been copied into WIDGET.C, by definition it will,
but that does not mean that by our observation we
have created something which is a copy of what is

in WIDGET.C. They are both copies of the same
thing, and if that is not the case - - -

GAUDRON J: Well that depends whether you approach it as the

original or as the means of generating an original,
that is all.

MR BURNSIDE: Yes. Well, I understand that, Your Honour,

but in the cases that provide some guidance by
analogy it is plain enough that two people can
create similar or identical works by observing a
common thing. If each derives his work by
observing the same thing, then it simply cannot be
said that the second in time infringes any
copyright in the first.
Now, in our submission, if that is not so,

then the first person to devise a log table
prevents anyone else from devising a log table.

The first person to write a timetable for trains

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prevents anyone else from coming in, making the
same observations and producing a timetable with
the same information, because the process of
observation and recording is a process of gathering
information and, in our submission, the law of
copyright is not intended to prevent people from
acquiring and using and recording information.
Now, if we had got hold of a copy of WIDGET.C

and copied just the look-up table, a separate
question would arise, namely whether that is enough
to amount to a substantial part of the work, and
the question of substantiality is not tested by
whether it is essential, it is tested in part by
whether it is original. In our submission, it
cannot be said, on the argument set out in the
document headed "Which came first", that the
127-bit sequence, by itself, is original
sufficiently to attract any protection.

DAWSON J: That is right. If someone - forget about

WIDGET.C and you just had AutoCAD lock, and someone observed what was coming out and wrote down the
sequence, there would ·be no infringement of
copyright at all but, of course, that is not what
happened. That sequence was written into a set of
instructions and if you look at the instructions -
they were in evidence, in source code, and they
contained, in decimal form, the particular sequence
which was reproduced in binary form in EPROM. Now,
what you are doing is copying that by means of the
use, perhaps, of the AutoCAD lock, but you are not
copying the AutoCAD lock just for the sake of
copying the AutoCAD lock, that is not part of it.

MR BURNSIDE:

Yes. Well, Your Honour, that raises an

interesting question. This Court was not troubled
with any reference to a program called SP TEST.C.
In the lower courts there was reference to
SP TEST.C. SP TEST was another source program,
admittedly written by Autodesk, not part of the

AutoCAD package, not made available to people who bought the AutoCAD program. Its purpose was to test locks to see whether the locks were producing

the right output. SP TEST.C is a pure software
program; there was no reason in principle why SP
TEST.C could not have found its way into the
AutoCAD program in place of the relevant part of
WIDGET.C.

It would have worked exactly the same way.
works by generating an expected number and
comparing it with a number returned by a lock. It
It
works without a look-up table. It does not need a

look-up table. It works in a way which is a
software analogy of the operation of the AutoCAD
lock.

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To take Your Honour's example, the selfsame

things done by Mr Kelly might have been done and
not involved any infringement for the simple reason
that instead of using the WIDGET.C solution to the
problem, Autodesk had used the SP TEST solution to

the problem. We would say with respect that if
such a distinction, wholly invisible to anyone in
Mr Kelly's position, can make the difference
between infringement or non-infringement, then
there must be something wrong with the analysis
that gets us there.
We do submit that the reason the problem has

arisen is that the matter just was not raised and
was not debated. One would have expected to have
this sort of debate before the Court if these
questions had been raised. Let me say that the
submissions that I would wish to make on this part
of the problem are much more extensive than what I have already said, because they really concern the
substance of the matter which, in our submission,
would have to be debated in the event that the
Court grants the application and remits the matter for further hearing. But we have not covered the
whole ground, and one would have expected to see
this sort of argument before the Court last time if
these issues had been alive, which we say they were
not.
I am conscious of the time, but I want to take the Court to what we -

DEANE J:

Mr Burnside, can I divert you for a moment.

follow that you would attack the judgment on the
basis that it asserts that the look-up table in
WIDGET.C constituted a substantial part of a
computer program within the definition - - -

MR BURNSIDE:

Yes.

DEANE J: - - - for two reasons: one, data and not

instructions; other, substantial. Is there really
anything beyond that which you would attack the
Court's reasoning on the basis that it was not
argued because the point had never been taken
against you? If you assume that the look-up table
in WIDGET.C constituted a substantial part of
WIDGET.C which, including the look-up table, is a
computer program, I am not sure that I see any
other attack that you make on the Court's judgment.

MR BURNSIDE:

No, I think that is right, Your Honour.

You

will pardon me if I say that I am worried that it
might be a trick question.

DEANE J:

I assure you it is not.

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MR BURNSIDE:

Your Honour, we say that what went wrong is

that no argument was raised directed to the
proposition that the simple reproduction in EPROM
of the 127 digits could, without more, involve
reproduction in material form of a substantial part
of WIDGET.C, namely the look-up table.

DEANE J:

I think the assumption I put to you effectively

negatives or sidesteps the points you have been
making, but I just wanted to make sure I was not,
as it were, overlooking some independent argument.

MR BURNSIDE: It raises a number of arguments, of course, as

Your Honour rightly says. We say that if one is
concerned simply with the embedding the sequence in
an EPROM as an infringement, then it does raise the
question whether data is within or outside the
scope of the protection given to the program.

DEANE J:

I assumed that in my question to you.

MR BURNSIDE: Yes. It raises, also, the question whether

data which is embedded in a program and which has
been derived by observation can, on any view, be
regarded as a substantial part of the program in
which it is embedded. It is a very important
question because it has a fundamental bearing on
the rights of manufacturers to create interoperable
systems. Starting from the assumption that there
is static data embedded in a program, the question
arises whether use of that data, without more, is
capable of being an infringement of the program.

DEANE J: But I think that is all covered by what I put to

you.

MR BURNSIDE:	I suppose I was just checking, Your Honour.
DEANE J:	Now, to put it more precisely, if you go to the -

I have got the pamphlet copy of the Court's judgment - in the first judgment to which I was a

party, in the last paragraph, there is a sentence "look-up table in WIDGET.C constituted a substantial part of WIDGET.C".
Now, as I follow what you are saying, that

proposition was never advanced against you, was
never examined in argument and is wrong, both by
reason of the proper understanding of the
definition and, regardless of that, by reason of
what constitutes a substantial part.

MR BURNSIDE:

Yes, and the question of substantiality

subsumes the problem of originality of the thing
said to have been taken.

DEANE J: Yes, I .....

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MR BURNSIDE:

And, of course, the wrongness of the decision

we complain about at two levels, first, because it

to the appeal, but it also involves a question of
major public interest to the computer industry in

involves an injustice to the immediate respondents public policy questions which are inevitably raised
by an application of this sort.
Your Honours, I wanted to try to identify the

way in which the problem has arisen, and it seemed
to us, with respect, that the problem emerged from the precise form of the letter which the Registrar
wrote to the parties on 12 November last year. It
is exhibit PHB4 to Mr Brewin's affidavit, and it is at page 7 of the application book. The difficulty,
in our submission, is that the first two paragraphs
advance propositions which are simply not
coordinate one with the other if the first
paragraph is to be understood in the way in which
it seems it has been understood by the Court. It
says:
"A member of the court has asked me to raise
with the parties the question whether it has
at any stage been expressly submitted on
behalf of the Appellants that the series
embedded in the EPROM in the Autokey lock
constituted a reproduction in a material form
of a substantial part of Widget.C.

I note, in passing, it does not say a reproduction in material form of the look-up table in WIDGET.C.
It then goes on to say:
In that regard, attention is directed to the
statement in the judgment of Sheppard Jin the
Federal Court that it is "common ground that
(the respondents) have not reproduced any part
of the WIDGET.C program".

Now, the letter then goes on to say that if the
parties are agreed that no such submission was
made, then the matter need not be taken any

further. If they are agreed that the proposition
was advanced, then supplementary submissions are
invited.
The difficulty is that if the first paragraph

is directed to a submission of the sort on which
the decision has turned, then we believed then and
we believe now that no such submission was advanced
and, of course, we did not agree with the
appellants that such a submission had been

advanced. So on that analysis, the condition for
further submissions was not satisfied, and could
not have been.

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The difficulty is in the second paragraph because it refers to it being -
"common ground that (the respondents) have not reproduced any part of the WIDGET.C program" -

whereas the whole of the appellants' case was that
we had reproduced part of the WIDGET.C program.
The way they put it was different but, of course,
it was not common ground that we had not reproduced

any part of it. It was their whole case that we
had.
Now, it seems that out of the ambiguity

between those paragraphs the appellants thought it appropriate to make further submissions which they did, and we responded to those as best we could.
We would say that the submissions that they made in
response to that letter are no more than a
rehearsal of the submissions they had made before,
and they are steeped in the notion that the thing
taken existed in WIDGET.C and in the AutoCAD lock

and in our lock. That was the way they had put
their case. And that response, in our submission,
further deflected attention from the alternative
proposition that by embedding the series in an
EPROM you reproduced the look-up table.
Now, can I make that good by one particular

reference to the oral argument in this Court. It
is at page 58 of the transcript of argument - - -

DEANE J:

I do not quite follow why you say the first

paragraph is ambiguous as to what it is referring
to, or why it differs from the sentence in the
joint judgment I directed your attention to and
which you said was the critical mistake.

MR BURNSIDE:	Your Honour, the first paragraph refers to -
the series embedded in the EPROM -

being -
a reproduction ..... of a substantial part of
WIDGET.C.

Now, it is to be borne in mind that the evidence
was that WIDGET.C was a very big program, 20,000 or 30,000 bites. The portion of WIDGET.C which was in
evidence was, I think, at page 818 of the appeal
book, but it involves a number of lines of code,
some embedded comments and a look-up table.
The appellants' case always was that the relevant program was found in that part of
WIDGET.C, was found in the AutoCAD lock, and was

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found in our lock. So if one reads the reference
to a substantial part of WIDGET.Chere as being a
reference to the relevant part of the logic,
including the look-up table of WIDGET.C, then one's
attention is directed away from the critical
proposition in the judgments. If this had said, "a
reproduction in material form of the look-up table
in WIDGET.C", that would have served perhaps to
focus attention, but even then, we would say that
the second paragraph would at least create
confusion and deflect attention away from the
proposition.
Now, could I take the Court to page 58 of the

transcript of argument before this Court. This is
a passage which is referred to by the appellants in
their supplementary submissions to the Court. At
about point 7 on the page Dr Emmerson said -
perhaps I should go back to the paragraph ahead:
Now, there are two elements in that, and

it is convenient because it is the shortest
point to deal with the second of these first:
produced by the use of the copyright work.
Well, first as to the AutoCAD lock, it is
perfectly clear and, indeed, there is no
contest that the respondents produced their
lock by the use of the AutoCAD lock and we say
that that thereby, in a relevant sense, gives
them access to our program, whichever of the
three ways in which we put the copyright in
that program is correct.
That is to say, by doing what he did in

examining the behaviour of AutoCAD together
with the AutoCAD lock, and subsequently
examining the AutoCAD lock, we say the
respondent Kelly had access to the program in
the lock, and because in the nature of things
the program in the lock must be, for what we
say are relevant purposes, the same as the
relevant part of the program in the computer,

he had access to that.

All the time, in the Full Federal Court and in this Court, the argument of the appellants was that the relevant part of the program that had been
taken was found in their lock and was found in
their program, but the Court's decision is that the
thing taken by Mr Kelly was the look-up table,
which is the one element of the program which is
not found in their lock and, in our submission,
there is no discredit to the respondents that they
understood the appellants' case to be that the
three places where the program was to be found were
all to be considered as similar for relevant
purposes. That directs attention away from mere

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copying of a look-up table as being sufficient to
demonstrate infringement.
We would also say that it is significant in

this regard, that even in the supplementary
submissions made by the appellants, even after
receiving that letter, nowhere in their
supplementary submissions do they either say yes, such an express submission was made, nor do they
advance such an express submission. The nearest
they get, and it is significant, we would say, is
supplementary submissions of 18 December, found at
page 20 of the application book and there they say

by way of supplementary submission that:
WIDGET.C is the primary program in suit.

That:
A substantial part of that program is
reproduced in the Autokey lock by reason of
the matters set out below.

And the reference to page 171 of the
Full Federal Court proceedings does not involve the
submission relevantly identified in the letter and
then they go on to say:
The notion of reproduction involves two
elements - that the infringing work
sufficiently resembles the copyright work and
that it was produced by the use of the
copyright work.

And then they say that the question of resemblance
is satisfied because
both produce exactly the same response -

and -
both work by way of look-up tables and the

look-up tables are, in substance, identical -

What they are directing attention to there is the
method of operation. That was the way in which
they put the submissions in the Full Federal Court
and substantially we would say it is the way they
put it in this Court. They were saying that the
output is the same, therefore the function is the
same and that is sufficient, but if that is not
right then you go down to the next level of
analysis and consider the parallels between the
methods of operation and if those show sufficient
similarity, then you have infringement.

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5/8/92

But the reference to the look-up tables in that paragraph, and in the oral argument here and
below, the reference to the look-up table with a
reference to the way in which the programs worked.
And that had to be so, because they were, after all, saying that the way in which the programs
operated were the same in each of its
manifestations and that would then justify them in
getting an injunction restraining copying the
program in the lock, which is what they were after. If that paragraph was rather put for the
proposition that merely by copying into EPROM a
sequence contained in the look-up table, if that
was what they were putting, then it would not have entitled them to the orders which they have always
sought, that is to say, an order restraining
reproduction of the program in the AutoCAD lock.
Now, it would be very time consuming to take the
Court to all of the transcript references which the
appellants' supplementary submission identifies,
but, in our submission, none of those references,
when properly understood, amounts to the express
submission on which ultimately the decision of the
Court appears to have turned.
It follows from that, in our submission, that

the appellants did not have a right to make any
supplementary submissions; did not have a right to
advance the novel argument and, accordingly, the
matter should be considered regardless of the
supplementary submissions. But if that is not so,
we would say that if there can be divined from the
supplementary submissions of the appellants,
fragments of the relevant argument, that does not
of itself amount to a sufficient opportunity for us
to debate that point.
It is demonstrably an important and difficult

point. It is not a point, in our submission, which
should be decided by a side wind without adequate

oral argument and, accordingly, in our submission,
the test identified in Wentworth's case and the
Codelfa case is satisfied here; that we simply have
not had an opportunity to be heard on the relevant question. And we would say that even if the Court
thought that one could take from isolated sentences
here and there in the transcript of the Full
Federal Court and this Court, if one could identify fragments of the argument and put them together in order to find the whole argument, we would submit
that especially in a court with a tradition of oral
advocacy, that is just not the way in which points
of such complexity can properly be decided, and we
would say that the fact that there was no oral
argument on the point is probably the best
explanation of how it is that, in our submission,

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the Court came to a decision which we say is wrong.
There is one passage in the transcript of the Full Federal Court proceedings which is important,
and which is identified in the supplementary
submission, where the appellants stated and

restated the way in which they made their case. It
is at pages 231 to 249 of the Federal Court
transcript, which is part of exhibit PHBl, in the
second volume of that exhibit. It is very
interesting that in the discussion at that part of
the transcript Mr Justice Beaumont, and to some
extent Mr Justice Sheppard, took Dr Emmerson to the
question of the look-up table and how it was that
the look-up table mattered and at page 231, where
Mr Justice Beaumont asked a question, towards the
bottom of the page:
I appreciate you have to take the step that
was mentioned at the bottom of 721 over to 722
of extracting the least significant bit -

and so on -
I am not trying to confine you at all, but is it your case that the relevant instruction for the purpose of the definition of computer programme is found in the look-up table?

Dr Emmerson said:
Essentially, yes, or the relevant instruction
takes you step by step to look up in the
table.
BEAUMONT J: That may be a different thing. I
got the impression the table itself might have
been an instruction, as you put it.
DR EMMERSON: The relevant step is - I suspect
there is only a different in semantics between

what I am attempting to put to your Honour and what your Honour was putting to me. The
actual instruction, so to speak, in figure
four of Mr Manser to recover the value of this
position in the look-up table, is perhaps the
instruction. But that instruction has no
complete meaning, save in the context of the
look-up table.

His Honour suggested that might be part of the

instruction. Dr Emmerson said:
Yes, we would certainly accept that. It is
part of the instruction, and indeed it is the
critical thing which distinguishes our lock

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5/8/92

from any one of the millions and millions of
other locks one could get.

SHEPPARD J: I am sorry to confuse the issue,
but the look-up table in relation to the
Autodesk is in Widget.C in the AutoCAD programme.

DR EMMERSON: Yes.
SHEPPARD J: There is no look-up table
separately in the Autodesk lock, is that
right?

DR EMMERSON: That is correct. The logical
structure of our argument goes as follows. In
the principal way we put our case, we say
there is a programme, being Widget.C, and
there is sufficient evidence of derivation to
satisfy half of the learned Chief Justice's

test for reproduction. So one then looks to
see objective similarity, and in looking to
see objective similarity, what you compare is
Widget.C with the accused lock.
The intermediate step we say is unimportant
for the purpose of this way that we put our
case. When you look at the first and last of
those, you find that not only do they both
produce exactly the same set of electrical
impulses in response to any given challenge,
but also that if one looks a little bit below
that at the mechanics of it, one finds that
they both operate by way of look-up table.

They operate by way of the look-up table. We draw
attention to the fact that they are talking about
the method of operation. There is reference to the
contents of the look-up tables. Over at 233,
Dr Emmerson said:

The alternative way is to go through, as it
were, a two step process rather than a one
step process. Again, we say the starting
point is Widget.C and we say next that the

AutoCAD lock is simply a hardware implementation of Widget.C.

That is a very important sentence in the
circumstances that have arisen, we would say.
We rely inter alia on the evidence of that is then copied into the accused lock.
If one goes through those two steps, then one
compares the AutoCAD lock with the accused

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lock, and there is the question then of
whether, given in the case of the AutoCAD lock
part of the numbers in the look-up table, let
us say the first seven, are, so to speak,
directly reproduced by hard wiring, but the
rest are to be calculated as you go along,
whether that makes a sufficient difference.
His Honour held that, first, one does not need
to go to this question, but secondly, if one
does go to this question, then there are
sufficient similarities in order to make out a
case for infringement. It is in dealing with
that way of putting the case that we are led
to look at the mechanical differences between
the two locks.
BEAUMONT J: Yes, I understand on your
alternative case, but can I just pursue this

point with you. Assume there was a copyright
in the look-up table and assume also it had
been infringed because the EPROM version was
virtually the same. Would the proper relief
then be an injundtion restraining the use of
that table, and if so, what would be the
practical implications of that? It seems to
be a different order to the one his Honour
made which is far - - -

SHEPPARD J: The infringement is of something
that is in the AutoCAD programme and not in
the Autodesk lock.
BEAUMONT J: That is what I was putting to
you. It is your first way of putting your
case. It is certainly in your statement of
claim.
DR EMMERSON: Could I address this. Could I say first one thing about what your Honour,

Mr Justice Sheppard, put to me. We would not
accept the latter proposition, namely, not in

the AutoCAD lock, because the second way we
put our case is to say that it is in the
AutoCAD lock.

SHEPPARD J: I follow the second way, or at

least I think I do. I am not sure whether I
do, but I think I do.

DR EMMERSON: So I just did not want to let
past a statement that the program was not in
the AutoCad lock, we say it is there but to
address your Honour Beaumont Js question, yes,
it would be neater to frame the injunction in
terms of the program in widget.C, not in terms
of the program in the AutoCad lock.

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Your Honours, pause for a moment to consider the use of the word "neater".

We would say that if
the submission being put was the submission on
which the decision of this Court had turned, one
could hardly say that it would be neater to frame
an injunction by reference to the program in
WIDGET.C. It would be fundamentally different
because an injunction framed by reference to the
AutoCAD lock would not be in the least way
justified by or effective in light of the Court's

decision. And to say that it would be neater to
frame it by reference to WIDGET.C is to say, in
effect, that the argument is still the same
argument rather than what we would say is a
fundamentally different argument.

BRENNAN J: Correct me if I am wrong, but the way I read

page 233 with you there was understanding the
argument to be this, that WIDGET.C is the program
and the AutoCAD lock was the means by which the
infringing copy of that program was created.

MR BURNSIDE:

That was one way in which they put their

argument; the primary way was that it was the same
program in the AutoCAD lock.

BRENNAN J:

I appreciate that but for our purposes it is that way that is significant.

MR BURNSIDE: Possibly, Your Honour, except that what the

Court was there concerned with is what things do

you compare. The question was, "Do you compare one
lock with the other lock or do you compare each

lock with WIDGET.C?". That was the origin of that

discussion. The point we simply make - and let me
say this debate goes on for some pages and I will
take the Court to other aspects of it, but this
part of the submission, in our respectful
submission, not only cannot be understood as
advancing a proposition that merely copying the
look-up table entitles you to relief, it is

fundamentally inconsistent with such a proposition
because to describe an injunction that is framed by
reference to WIDGET.C as neater than an injunction
that refers to the AutoCAD lock is to suggest that
it is simply a refinement, a slightly better way of
doing the same thing, whereas, in our submission,
it is wholly different; wholly different.

BRENNAN J:	It is not only neater but better, on that case.
MR BURNSIDE:	To say that one thing which is effective is

neater than another thing which is wholly
ineffective is taking litotes to an extreme.

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BRENNAN J: But what it does not do is to deflect judicial

attention away from the question of whether there
was an infringement of WIDGET.C.

MR BURNSIDE:

No - an infringement of WIDGET.C, that is right, Your Honour, we accept that and we submit

that what was being done in the court below and in

this Court was to say, "Well, look, you just look

at the way - if function is not enough, then go one

level down and have a look at the way in which the

function is implemented.

One sees parallels

between the methods of implementation, the stronger

parallel is found between a comparison of WIDGET.C

and the Auto-key lock." But they also said, "Well,

similarly, a comparison of the AutoCAD lock with

the Auto-key lock gives you sufficient points of

similarity to justify a finding of infringement."

But what the argument was directed to was

similarity of methods of working and that, in our

submission, is entirely different from saying,

"Copying of embedded data is an infringement

without more" .

DEANE J: But does not Justice Beaumont, at page 233, in

what you read expressly raise the critical
question?

MR BURNSIDE:

He raised it but it was not embraced by the

appellants. He later asked the appellants whether they would wish to have a somewhat different order
from that which was made by Mr Justice Northrop.

DAWSON J:

I do not necessarily say they do not put it that

way. Take at the bottom of page 232 and the top of
233:
SHEPPARD J: There is a look-up table in the
Autokey lock?
DR EMMERSON: Yes, there is.

BEAUMONT J: In the EPROM?

DR EMMERSON: Yes, in the EPROM.
BEAUMONT J: It is the same, or virtually the
same as the Widget.C?
DR EMMERSON: That is correct, and this is the
principal way we put the matter.

MR BURNSIDE:

Yes, the way they put the matter though,

Your Honour, in that connection, is that because
the two look-up tables are the same, then they
produce the same output because they are operating
in the same manner. It is the manner of operation
that was the focus of these submissions, and if I

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can make that good, I would take the Court forward
to page 243, where this argument is rounded off.
Now, there is some discussion that an agreed
statement of facts, which was handed up by the
parties to the Full Federal Court, made no
reference to the look-up table and then, at the
middle of the page, Dr Emmerson said:

No. What we say is that the AutoCAD - - -

DAWSON J: What page is this, I am sorry?

MR BURNSIDE:	Page 242.
- - - the Autokey and Widget.Care all 127
state machines as a matter of computer terminology.

Justice Beaumont:
And use the same table?

Dr Emmerson:
Yes, they all use the same.

That is including the AutoCAD lock. Then over to
page 243 at the middle of the page, Dr Emmerson
summarizes the three ways in which they put their

argument. Therefore the primary way in which we put our

He said:
case is the way found in th~ sentence in
His Honour's judgment spanning 984 to 985 -

In which His Honour said, well sufficient similarity of function is enough to establish
reproduction.
We say you do not need to look at the
particular type of hardware that you use and

Parliament was not intending to direct the
court to that sort of inquiry.
Secondly, in answer to questions which flow
from a particular language code or notation,
we say again the whole structure of the 1984
amendments does not make the question of
infringement depend on whether someone has
used specific language code or notation.
There is built into the definition of,
computer program, the notion that you may
change from one language to another.
Accordingly, it is simply not relevant to look
at the actual way that, for instance, at
page 747, Widget.C is coded. That is a

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function of a particular C language, but for these purposes it would not matter if it was
in the C language or in Fortran or Algol or
object code or Basic or any one of a large
number of different languages.
So the amendments get over the sort of difficulties that turned up in the Apple case
where one was concerned, in that case, with a
distinction between source code and object
code. The precise coding, the precise way the
coding occurs does not, we say, matter.
But then going one step further down the argument we say even if we are wrong in this
then the way in which Widget.C deals with the
production of the numbers is by finding how
many transitions there are and using a look-up
table which contains the very essential
feature of the 127 states there set out. That
is what is also done in the accused lock.
There is again a look-up table and it again
operates by that means.
In the third way that we put our case we say
that even if you have to look at particular
bits of hardware and how they all function,
nevertheless if we come to this, there is
sufficient similarity between the way that the
Autokey lock works and the way the Autodesk
lock works to satisfy the second limb of the
test laid down by His Honour
the Chief Justice.

The second of those arguments which refers to
look-up tables is concerned with the method of
operation of WIDGET.C, on the one hand, and the
method of operation of the Auto-key lock, on the
other. And in our submission, that really is no different from what was said in oral argument in
this Court, that by comparing methods of operation

you find sufficient similarity for the purpose of
the definition. It is also significant to note
that paragraph 5 of the outline of argument, in
this case, once again focuses on the method of operation, rather than focussing on the simple
similarity of the two look-up tables, without more. So, in our submission, the passages, which are
referred to in the Full Federal Court and in the
High Court by the supplementary submissions, do not anywhere identify an express submission of the sort
which has turned out to be the turning point of the
decision. In particular, we would refer to the
various passages in the submissions in this Court
which are referred to by the appellants'

supplementary submissions. None of them involves

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an express submission of the sort suggested, but
all of them are said to be the way in which the
case is being made out, and the nearest they get -
wherever they refer to look-up tables the reference
is always a reference to the method of operation of
WIDGET.C, on the one hand, and the Auto-key lock on
the other hand.
Now, I have not taken the Court in detail to

many passages of transcript because of the time
that would be involved in that course. We have
sought to establish the negative proposition that
the relevant submission was not raised at all;
alternatively, was not raised in such a form as to
give us a proper opportunity of meeting it. There
is some advantage perhaps to be got from going to

all of the transcript references to which the
appellants referred the Court in their
supplementary submissions, but unless the Court
would be assisted by my taking the Court to each of
those transcript references now we think that it
might be rather less helpful than more, and we are
still not certain - - -

MASON CJ: Before you leave the transcript, very briefly,

looking at pages 258 and the following pages, was
not this proposition put to you specifically by the
members of the Full Court, that the look-up table
did constitute a set of instructions, particularly
at the top of 259?

MR BURNSIDE: Well, I agree that Mr Justice Beaumont asked

the question, and it reflects a discussion between
His Honour and Dr Emmerson at the earlier page -

MASON CJ: Yes.

MR BURNSIDE:

- - - where, in our submission, it was not

embraced and when the arguments were summarized it
was certainly not put forward as part of the

argument.

MASON CJ:

No.

I understand perfectly what you have said

about the seeming reluctance of Dr Emmerson to put
the proposition in specific form but, none the
less, even though he did not do that, it seems to
me that the members of the Full Court clearly had that approach in mind as a possibility and raised
it with him.

MR BURNSIDE:

Well, it was one of many matters which were

floated, if I can put it that way, and received
very brief attention, but can I make this point,
Your Honour, it did not form any part of their
decision; it was not subjected to any criticism in
this Court; it was not advanced as a proposition in

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this Court. It was identified at the special leave
application as an abstract possibility and we then
said, without having had the benefit of reading the
Full Federal Court transcript in detail, we then
sad that it was not a proposition ever pleaded or
argued.
We would stand by that, but more importantly,

let us suppose we were wrong; let us suppose one
can find in those two passages a sufficient
identification of that as a separate argument for
it to be incorrect for us to say it has never been
pleaded or argued. If that is so, one asks why we

were never corrected on that misapprehension. The
whole of the hearing in this Court proceeded on
that misapprehension of ours, if it is a
misapprehension. It was never corrected by
Dr Emmerson. Justice Gaudron, we say without any
criticism, agreed with the statement that we made,

that it had never been pleaded or argued. We would
say, with respect, that is that is where the
argument is said to have been raised, then that is
hardly a sufficient opportunity for us to argue it
in this Court, because we came to this Court with

the belief that that was an argument never put. It

was certainly not put to this Court. It has not
been put in the supplementary submissions and we do
not understand the Court's decision to have
proceeded from an assumption that the 127-bit
sequence is a set of instructions.
We would say, with respect, that it involves a

lot of considerations which have never been
canvassed and the conclusion ultimately must be the
same, namely that it is not part of a set of
instructions; and that for two reasons: first
because it is data and not instruction standing
alone, and the mere fact that it is data to which
instructions refer does not, as a matter of
applying the statutory definition, make it part of
the instruction which invokes it.

But ultimately, we have to fall back on this,

that it is not a question which has been debated at
all in this Court until this morning and if the
Court thinks it is a matter that ought to be debated, well then, in our submission, it follows
inexorably that our application ought to be allowed
and the matter remitted for further hearing on that
and related points.

DEANE J:	The matter remitted?
MR BURNSIDE:	The mind reels at the prospect of going through the system again.

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5/8/92

MASON CJ: Our mind might not reel quite so much at that

prospect as yours, Mr Burnside.

MR BURNSIDE: Yes, I understand except, Your Honour, that it

may merely defer the time at which the Court's mind
has to be exercised by it, because it raises,
although obliquely, the same fundamental questions
of the interpretation of the definition.

DEANE J:

Why would it be remitted?

You say there is

evidence there, and you say our judgment is wrong
in this regard, but we can scarcely remit it
somewhere else to say whether we were right or
wrong, would we?

MR BURNSIDE:

I agree with that.

Your Honour, we do not say

the judgment of the Court was wrong in this regard because the judgment of the Court does not turn on the proposition, as we read it. It does not turn
on the proposition that the 127 bits are themselves
instructions.

GAUDRON J: But that they are a substantial part of a set of

instructions.

MR BURNSIDE:

Yes, certainly, but that they are data within

a set of instructions and that, as data, they can
be a substantial part of a set of instructions.

GAUDRON J: Well, there is nothing about data or otherwise?

MR BURNSIDE:

I thought, with respect, that one of the

judgments did say that the 127-bit sequence was not
instructions but, rather, was data, and I will ask
Mr Waller to find the passage. But this discussion exposes two facets of that argument: does pure
data become an instruction by reason of being
embedded in a set of instructions and, therefore,
become part of the instructions?

GAUDRON J: That proceeds from an assumption that it is pure

data.

MR BURNSIDE:

That assumption is based on the evidence, but

if Your Honour thought that that was not a
proposition which is to be made good only by
reference to the evidence, then it is another
element of the difficult question of statutory
interpretation of the definition which would need to be debated if the Court thought that the point
were open to Autodesk to be taken.
We would say, with respect, that the discussion this morning reveals the difficulty that
has arisen. It reveals the sorts of arguments that
are concealed underneath a turning point of the
decision, arguments of the sort which this Court

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would have expected to hear if the point had been
alive in this Court; points of really fundamental
significance to the computer industry in Australia
and points which should only be decided after full
oral argument.
A question arises whether Autodesk ought to

have the opportunity to advance the argument now
and have a decision made after oral argument in
this case or whether, on the contrary, the Court
should accede to our application and simply dismiss
the appeal on the footing that it fails on the

grounds advanced. We urge that course primarily,
but we would not resist the other course of sending
the matter for further argument before this Court.
Can I grasp the nettle on one aspect which

inevitably lurks in the background.

DEANE J: Before you depart from what you have been dealing

with, what do you suggest Justice Sheppard was
referring to in the statement set out in the second
paragraph of the Registrar's letter?

MR BURNSIDE:

I am not sure, Your Honour.

It may be that

His Honour had in mind that it was common ground
that we never had access to WIDGET.C and so in that
sense could not have been said to have reproduced
anything in WIDGET.C, the form of·which was unknown
to us until it was led in evidence. That is the
best way we can understand it.

DEANE J:

On one understanding - and this would be of

assistance to you - he could have been referring to
it was not suggested that there had been
reproduction of an expression of the WIDGET.C
program as distinct from the working or operation.

MR BURNSIDE: That may be right, Your Honour, and we

would - - -

DEANE J:

Now, if he were suggesting that, on your argument

that is accurate, is it not?

MR BURNSIDE: Yes, I suppose my reservation is whether it

was common ground, there was very little that was
common ground in the arguments at each level. But
certainly if it is to be understood the way
Your Honour suggests, we would say it is a correct
statement, the statement itself rather than the
fact that it was common ground that that was the
position.
Before moving to a separate aspect of the matter I pause because I have embarked, to some
extent, on making good the proposition that the

decision of this Court was wrong. In our

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submission it is not necessary for us to
demonstrate that conclusively because, plainly, it
is something that must depend on full argument on

the issues which have been discussed. I gather
from some of Your Honour Justice Dawson's questions
that you were not immediately impressed with the

correctness of our proposition. I do not intend to
address further argument on the proposition that
the judgment of this Court is wrong unless the

Court is going to be assisted by it. We maintain
the proposition that it is wrong, and we would say
that we ought to have an opportunity to argue in
full the reasons why the decision is wrong in order
to persuade the Court not to grant the appeal if
there is to be a further rehearing. But,
Your Honours, that assertion involves this unstated
difficulty which we would like to address directly.

On any view of it, applications like this are proposition to ask a Court to say that its earlier

rare.

On any view of it is is an awkward
decision on the same matter was wrong, and one
immediately gets a concern about the dignity of the
Court in being seen to have simply made a mistake
and ordinary experience suggests that people resist
such a course and, although it is no necessary part
of our submissions, it is nevertheless,
potentially, at least, a consideration that
operates subconsciously, and understandably so.
We have submitted that the decision is wrong

and it appears from the commentators that it has been seen by others to be wrong. we say that it
was wrong simply because it was not subjected to
the scrutiny of proper debate. But then the
question arises, "Is it better for the Court to
say, 'Well, we got it wrong', or simply to stand
firm?" and, being realistic, that is a matter of
real difficulty for any person placed in the
position in which we say this Court is placed.

This Court has undoubtedly got a great

reputation in the common law world and we ask
rhetorically whether this Court's reputation and
standing in the common law world will be preserved
if it closes its eyes and clings to the error we
say it has made, in an area of difficult law and
difficult technology, or whether its reputation
will be diminished if it acknowledges the
possibility of error and seeks the correct answer
to the problem with which it was confronted by this
appeal.

MASON CJ: But Mr Burnside, I do not think our decision on

your submissions is going to be dictated or
influenced by the Court's consideration for its
reputation.

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MR BURNSIDE:

I am grateful for that indication,

Your Honour, but I would wish to add one thing, and
that is that in our submission the Court's
reputation is much more likely to be enhanced by
admitting the possibility that the earlier decision
was wrong for the reasons we have suggested and
then considering - - -

DEANE J: But that would be an equally illegitimate

consideration. Why should we decide against
Dr Emmerson's clients?

MASON CJ: Because we want to enhance our reputation.

MR BURNSIDE:

No, not on that ground alone, but can I make

this point: the reputation and standing of courts
is one of the pillars of the legal system. Courts
which are not held in high regard will fail to that
extent in their role in the rule of law in any
society. A court whose judgments are disregarded
is incapable of administering the law effectively,
because to a large extent the rule of law depends
on a general acceptance of what the courts say.
That must necessarily be the case, and to that
extent a court's concern with its own dignity and
reputation, we say, is essential to the rule of
law.

DAWSON J: But all this is irrelevant, Mr Burnside. There

is always the possibility that a court is wrong - I
admit that freely - but the question is whether you
were precluded from putting an argument that you
should have had an opportunity to put; that is
all.

MR BURNSIDE:

I do not want to overplay the point, but we do

regard the reputation of a court as important in
the rule of law in the way in which we put it, and
we say that that consideration should not prevent

the Court from acceding to the application. We do
submit, with respect, that the decision is wrong,

it was not properly debated, and if an opportunity
is given for it to be properly debated, it will
raise issues of general importance beyond the
interests of the particular litigants.
But even if the interests of the particular

litigants alone is regarded, it is our submission
that our clients have not had a proper opportunity
to meet the case on the ground on which it has
ultimately turned, and that is a great injustice
which, in our submission, should be corrected.
Unless there are any aspects of the matter

which we can assist on, those are the submissions
we rely upon.

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MASON CJ: Thank you, Mr Burnside.	Dr Emmerson.
MR EMMERSON:	If the Court pleases, we have prepared an

outline which is based on what we took to be the
position that my learned friends would adopt as a
result of their affidavit in support of this

application. The different aspects of it will need
to be developed to a different extent, but perhaps
if I give the Court an opportunity to read it and
then indicate how I would propose to develop those
propositions.

MASON CJ: Yes.

MR EMMERSON:

If the Court pleases, it is convenient to

start with the basis on which this application is
made and it depends, as we understood the
application before the Court and the supporting
affidavit, on two propositions: one is that you
can identify three questions on which, without
fault, the respondents were given no opportunity of being heard and those are set out at page 12 of the application book in paragraph 19 of the affidavit
of Mr Brewin in support of the application.
The first of these seems to turn on the

substantiality point. The second seems to turn on
indirect copying, and the third seems to turn on
whether what was taken, if characterized as data,
could nevertheless be a substantial part of the
computer program. It is then said in the following
paragraphs that had these matters been in issue,
evidence would have been led of certain types which

are then specified. So the application, at least
as outlined, seems to have been put on the footing
~hat certain propositions were not in issue at
first instance which, of course, was the time at
which evidence could have been led, and therefore,
these matters were not dealt with.

Now, it will be our submission, which I will

attempt to make good by reference to various
passages in the transcript, that each of these
questions was recognized by the present applicants
on this motion as being in issue in the proceedings
before the Court. Each was the subject of
submissions before the trial judge, and so there
can be no ground at all for that part of the
affidavit in support which bases this application
on the proposition that extra evidence would have
been adduced if only they had realized that these
matters were in issue.
It is our submission, in fact, that these matters have always been in issue. It is true that

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both parties put their arguments in a number of
different ways and that was recognized by this
Court in the reasons for judgment of Your Honour

Justice Dawson. We do not seek to resile from
that. This was a case which raised new issues of
law, each party dealt with the thing in a number of
different ways. But what we say is not legitimate
is for my learned friend to seek to take one way in
which we put our case at first instance and
subsequently and say, "This is the only way that we
should be entitled to put it or that it is the only
way in which we did put it." Our submission will
be that all of these matters were in issue and
argument was directed about them.
To just refer by way of headings to the other

matters which we will deal with in the outline, so
far as the pleadings are concerned, I want to take
the Court briefly to what was said in the pleadings
and, indeed, what my learned friend's clients said
in their pleadings because they, we say, expressly
took the point that no part of the program, they
said, was reproduced in their lock.
So far as what we say in paragraph 4 of the

outline, until I heard my learned friend's
submissions this morning, I was under the
impression that the application would be made in
respect of extra evidence but it is material to say that in carrying out even the hypothetical exercise
of wondering what extra evidence might have been
led, one should note the admissibility and cogency
of the proposed evidence and we would say that the
affidavit in support of this application tells one
nothing of that.
As to our point No 5, we say that the

respondents had ample opportunity to deal with the
matters which are now sought to be raised before
judgment was handed down, because the sequence of
events was that in a letter to the parties this

Court asked whether certain matters were in issue
and sought supplementary submissions, and both
parties in fact made supplementary submissions
and -

DEANE J: That is not accurate. This Court in its letter

said if the parties were agreed - - -

MR EMMERSON:	Yes.
DEANE J: - - - they were invited to make submissions.	It

emerged that the parties were not agreed.

MR EMMERSON:

It emerged that the parties were not agreed.

We interpreted that as saying, in effect, that if

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the fact was that this was in issue we were invited
to make supplementary submissions, but - - -

DEANE J: That is not what the letter said.

MR EMMERSON:

No, I accept that, Your Honour.

DEANE J: And, indeed, your submissions were contrary to

what was indicated by the letter, that is, that the
letter covered two possibilities but left quite
open, as it were, for further decision what should
be done if there were disagreement.

MR EMMERSON:

Yes, it left open what should be done in the events that occurred, and I fully accept that,

Your Honour.

I would not, with respect, accept

that it was contrary to the letter but it was

something which was not expressly invited by the

letter.

DEANE J: Yes, I agree with that.

MR EMMERSON:	Yes, but the fact is
DEANE J:	Dr Emmerson, can I divert you just to come to the

essence of it. In the joint judgment there is the
sentence "The look-up table in WIDGET.C constitutes
a substantial part of WIDGET.C implicit being a
computer program" .

MR EMMERSON:	Yes.
DEANE J:	Was that submission ever made in terms?
MR EMMERSON:	Yes, we say indeed.

DEANE J: What, it was submitted that the look-up table, as

such, was a substantial part of WIDGET.C, so that
the encrypting of the look-up table itself

constituted the basis for relief?

MR EMMERSON: Well, in essence, yes.

DEANE J: Well, you say, in essence.

MR EMMERSON: Well, Your Honour puts one proposition to me

and then adds another sentence.

DEANE J: Well, it was in that context that the sentence

appears in the majority judgment.

MR EMMERSON: Well, it was put - and we would say put at

various levels and I would take the Court to where
it was put and indeed, it seems to have been
accepted as in issue, as we would see it, by my
learned friends - that the question of whether the
look-up table was a substantial part of WIDGET.C

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was one of the matters in issue? We say that it

was in issue at every stage. Now, the reason for
my qualification of "in essence" was that the
underlying assumption of that and the context of
that is, of course, that this was reproduced.
Now, it would be my intention, if this is a

convenient course to adopt, to take the Court on
these points to various passages in the evidence in
which this was produced. Could I however start by
saying that my learned friend, in our submission,
was not correct in apparently suggesting towards
the close of his submissions that even when the
point had been raised by the Court, we did not deal
with it. If the Court would turn to page 38 of the
application book, the last seven or eight lines of
the supplementary submissions that we put in:
There was no substantial possibility that the
look up table could have been developed

independently. The evidence was that it was
not developed independently but was copied.
Thus there is no warrant for the implied
submission that the look up table was merely a
minor part of the programme. It was
essential. It is not correct to say that
Autokey was developed without the use of
Widget.C. For reasons already submitted, it
was copied indirectly from Widget.C.

Now, on our understanding, that is the ground on

which this Court decided the case, put shortly. We
put that submission. There was no protest by the
present applicants, before judgment, that this was

not a submission that could be put. It was not

open to us and so on. The fact is, the notion of
,this not being open to us was raised for the first
time, after judgment, rather than at any earlier
stage.

DEANE J: But, can I just try and get my own mind clear.

Implicit in the majority judgment on one reading is the proposition that to have copied the look-up
table by simply writing it down in an appropriate
code would have been infringement of copyright,
without more, regardless of it being how it worked
and everything else.

MR EMMERSON:

Yes.

DEANE J: Well now, was that ever put for your client at any

stage?

MR EMMERSON:

That is simply the writing down of the look-up

tables.

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DEANE J: That any reproduction in a material form of the

127 units and a symbol indicating the wrap-around
code would have been an infringement of your
clients' copyright?

MR EMMERSON:

Subject perhaps to one qualification. What we

said was this had been done in the accused lock and
that was an infringement.

DEANE J: Could I try and make it a little clearer. Was it

ever said by you or your client, "You don't have to

worry at all about the working of this. You don't
have to worry about how they compare with one

another. In our computer there is a look-up table

of 127 units with a wrap-around feature. The mere
reproduction of that in any material form
constituted an infringement of copyright"?

MR EMMERSON:

We certainly said that the mechanism was

unimportant and we emphasized that at a number of
different stages.

DEANE J: What about the positive proposition?

MR EMMERSON:	The positive proposition was that we said that this reproduction of it was an infringement.
DEANE J:	I follow that in the context in which you said it,

but what I am asking you is was it ever put that
any reproduction in a material form of the look-up
table was an infringement of your client's
copyright?

MR EMMERSON:

I would say, yes, the argument proceeded on

that footing.

MASON CJ:

We may take this up after lunch, Dr Emmerson.

~ill adjourn until 2.15.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

MASON CJ: Yes, Dr Emmerson.

MR EMMERSON:

If the Court pleases.

I had identified the

three questions on which it appears the present
application is based and those are set out at

page 12 of the application book. To some extent
they overlap and, to some extent, in the way that
these matters were dealt with, both at first

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instance and on appeal, they also overlap but it is
perhaps convenient to try to identify why it is
that we say that all these issues were issues which
were in dispute, at first instance and then
subsequently on appeal. Going to the first one, it
is:
Whether the 127-bit series embedded in the
EMPROM in the Autokey lock constituted a
reproduction of a substantial part of
Widget.C, namely the look-up table -

That being the first of the questions, itself,
could be said to raise a number of different

issues. One is whether WIDGET.C is an original
computer program in which copyright subsists. That
was something which was accepted by both parties
both at first instance and on appeal as being the
case.
I can refer the Court briefly to one or two

passages at page 91 of the application book which
records some of my learned friend, Mr Burnside's

submissions at first instance. He says, in the
second paragraph on that page:
Accordingly, and this is the submission I
started with, the only works of which evidence
has been given are WIDGET.C and SPTEST C, and
if there is to be any infringement found it
must be an infringement of one or other of
those.

The Court will note that my learned friend there correctly, as we would say, identifies WIDGET.C as
the program and that is what he is then concerned

with in his submissions. He repeats this at
page 97 in which he sets out what he says in the
second full paragraph on that page, a little bit
over half-way down that paragraph:

there are only two works. In this case they

are SP TEST and WIDGET.C. He then goes on to say what he says is different.
He says:
Even if the AutoCAD lock were held to be a
work, the Auto-Key lock is not a reproduction
of it either because the Auto-Key lock does
not resemble any of the applicants works and
it has not been derived from any of the
applicants works in the relevant meaning of

that expression. The thing which has been
said to be similar, in fact is plainly enough
identical, is the string of 127 bits which are
returned by each of the two locks, and by the

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processes by which your Honour has had
explained to you, WIDGET.C also is able to
generate that string of 127 digits, although,
as it were, keeps them to itself.

Two questions arise. The first is, are those
127 digits a computer programme. In his
opening Doctor Emmerson spoke in language that
suggested that it would be put that the 127
bits are a computer programme. It is
submitted that that is not a tenable position.

Then he goes on to say why he says that is not

tenable. So he is there at the stage of addressing
at the end of the trial at first instance, and he regards this as being one of the areas of dispute
between the parties which it is necessary for him
to deal with.
Now, Mr Ritter, who also appeared - the Court

may recall that at first instance the respondents
were represented, two of them by Mr Ritter and one
of them by Mr Burnside, so Mr Ritter appears for
the same interest, so to speak, as my learned
friend - he accepts the existence of copyright at

page 84. I need not perhaps take the Court to
details of that. At 87, on dealing with
infringement, on the second-last paragraph on that
page, he says:
The work in that case, one must assume, is
WIDGET.C and to reproduce that in material
form includes a form of storage from which the
work, WIDGET.C in source code, can be
reproduced. It is my submission that there is
no evidence that one can reproduce WIDGET.C
from the Autokey or any form of storage

contained within the Autokey. So that the
Autokey is not a reproduction and cannot be a
reproduction in material form of the only work
presumably on which the applicants can rely,

namely, WIDGET.C in source code.

So again he joins issue with and deals with the proposition that it is WIDGET.Con which the
parties are at issue. This is the computer
program, infringement of which is alleged.

BRENNAN J:

If that argument is the one on which you rest,

the question then is, was it a live issue at the
trial and subsequently as to whether the 127 bits
were part of a program as distinct from data?

MR EMMERSON:

Well that really is the third of the questions

which the present applicants seek to raise. That
seems to be the one which is raised if Your Honour

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turns to page 12 of the application papers.
Towards the bottom of that page at paragraph 19(c):
Whether copying data contained in a computer
program can constitute a reproduction of a
substantial part of that computer program?

Now, the answer that I would give to Your Honour
is, yes, that was an issue at all stages and yes, I
will direct submissions to it. I have organized my
notes to take these questions one by one, although
it must be said that inevitably there is some
overlap because one comes to particular passages
which deal with more than one of these things.

BRENNAN J: Yes.

MR EMMERSON:

Now, if we look at the significance of

WIDGET.C as it stood in the Full Court, can I take
the Court to the second volume of the application
book which contains the first part of the argument
in the Full Court of the Federal Court and
page 118, at the bottom of the page my learned
friend, Mr Burnside, deals with the way in which he

puts the relevance of WIDGET.C. In the paragraph
which spans pages 118 and 119, he says:
The way in which Widget.C did its job bore a
rough logical similarity to the way in which
Mr Kelly's lock operates. Now, there are many
points of distinction, we would submit, but it
at least had this in common, that it made
reference to an internal look up table in
deciding which bit should be sent back from

the lock in response to the challenge. We do
not deny for a minute that Widget.C is a
computer program but if it is suggested
against us that Mr Kelly's lock infringes the
copyright in that part of Widget.C, we would
simply say first that it does not bear any
relevant similarity to Widget.C and in any

event Mr Kelly never had any relevant access
to Widget.C.
Now, those are the two points which my learned

friend's clients took in the Federal Court. They
argued about similarity, and I will be taking this
Court to some of the things they said about the
similarity or, as they put it, dissimilarity,
between the look-up table in WIDGET.C and the
look-up table in the accused lock. They also
independently put the argument which my learned
friend foreshadowed he wanted to raise again,
namely the argument of causal nexus, whether it
could be said that the AutoCAD lock itself provides
a suitable causal nexus between WIDGET.C and the
accused lock.

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Now that point of causal nexus is probably

most conveniently dealt with as arising under the
second of the three questions identified by the
present applicant's on page 12 of the appeal
papers:
Whether the third respondent, Mr Kelly,
indirectly copied the look-up table in
Widget.C by copying the sequence of numbers
generated by the AutoCAO lock.

Now, that seems to raise the indirect copying point, and again I will come to that one in due
course.
So the argument proceeds on the footing that

copying of - or reproduction, to use the term in
the Act - of the look-up table in WIDGET.C by
putting it into the EPROM in the Auto-key lock is
in issue. That issue is joined between the parties
and the primary arguments which are put against us
at this stage are based on dissimilarities, so it is said, between the two lock-up tables, and this
point of causal nexus.
Now, in our submission, both of those arise

necessarily out of the matters that my learned
friend wishes to litigate again being in issue

between the parties. Now, if one goes to
volume three of the application book this continues
with the argument. Here is part of the argument
put on behalf of my clients who were respondents in
that court and so we are, of course, responding to
what was put by my learned friend, Mr Burnside, in
that court.
If one goes first to page 171, in the passage beginning at about the middle of the page where I
am dealing with various ways in which we put our
case, I am reported as saying this:

We in fact put the matter in the alternative,
but the correct way to put it, we would say,
is that Widget.C is a programme and each of
the locks is a reproduction of part of that
programme, so the comparison is Widget.C and
each of the locks, but a convenient way to
approach this matter is to say also, it
follows from that analysis, that the AutoCAD
lock is itself programmed and you can copy
that programme.

That was part of the argument but it does not
follow from the way that the argument was put that
if the Court were of the view that the AutoCAD lock
is not itself programmed, that there cannot be

infringement. We go on to deal with that in part

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in the next paragraph where I am reported as
saying:
Indeed we say the appellants have copied that
programme into the lock that they have sold.
Perhaps the short answer is, we put it both
ways, but the primary and perhaps more correct
way is to say that you start with Widget.C,
which is a programme, and then indirectly that
ends up in the accused lock.

One then goes to page 195, where at the top of the
page I again emphasize that WIDGET.C was a computer
program. His Honour Mr Justice Beaumont says that
that has been conceded and he then says:

Why is the case so complicated?

I say:

we want ..... to pursue all matters.

Being at that stage in the difficulty of any
litigant who is working in an area of law which has
not been decisively settled. Then at page 196, I
suppose that just goes to the fact that WIDGET.C is
a program and that is what we are there relying on.
Then the next step in the argument, also

raised by the first of the three questions which
the present applicants wish to raise again before
this Court, is whether the look-up table is a
substantial part of WIDGET.C. That is again
something which was in issue both at first instance
and in the Full Court. If one goes first to
volume one of the appeal book, this point about
whether look-up table is substantial is taken up by
my learned friend, Mr Burnside, at page 104 of

volume one of the appeal book. He finishes some of
his argument about the resemblance of the look-up
tables in the second paragraph of that page, and

then he goes on to deal with the question of
substantiality. In dealing with resemblance he
says:
that is not the sort of resemblance about
which t~e Copyright Act is concerned and it
follows, it is my submission, that the look-up
tables cannot be said to resemble each other.

So, he takes and debates that point of sufficient

resemblance between the look-up tables. Then he
goes on to say:
there is another submission in connection with
copyright and that is that even if you are
against me on all my submissions so far it is

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submitted that if the look-up table in the
EPROM is a reproduction of something in
WIDGET.C, it is such a miniscule portion that
it cannot be said to be a substantial
reproduction of WIDGET.Cora fortiori -

to other programs that he mentions. And he then
goes on to develop the substantial reproduction
point.
So, there again, at first instance, it is

perfectly clear, in our submission, that the
question of whether the look-up table in the EPROM
in the accused lock is a reproduction of the
look-up table in WIDGET.C is raised and, indeed,
one of the very issues that my learned friend says
that he wants to argue again now is the question of
whether that is a substantial amount.
Likewise, Mr Ritter whose interests, as I say,

were the same as those of my learned friends, on

page 124 of volume one of the appeal book. In the
second answer that he gives on that page, beginning
at about point 4 on that page, he says:
All that Widget Chad, it is part of the
programme operating within the host computer
and all Widget Chas is simply a look-up table
which when a signal comes back from the lock,
the computer itself looks to Widget C and asks
the question, does that output happen to
correspond with that which I would expect?

Then he takes the point that my learned friend says
that he now wants to raise, he says -
the lock existed before the programme.

So that was a point which was in issue and was
argued at first instance.

At page 111 of the appeal book, again part of the argument at first instance, and this time
argument which I directed on behalf of Autodesk,
the question of direct or indirect access is dealt

with in the second and third paragraphs. In the
last sentence in the second paragraph, I say:
We say that the Apple case establishes and the
1984 amendments support the view that when one
is considering a reproduction of a computer
programme, nothing turns on either the
technology used nor on the arrangement of the
information in whatever form of storage is
used.

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We say that the Apple case makes it clear that
there is no need for the infringer to have

direct access to the source code. He can
infringe by looking at something which has
been made in reliance on the source code and

by using that. We say that collections of
symbols, even if made up in a mechanical way,
may attract copyright protection.

So there, compendiously stated, is the position
that we adopted at first instance so far as the
matter of the look-up table is concerned. Over the
page, at 112, in the second paragraph on that page,
again dealing with the similarities between the two
look-up tables, I am reported as saying this:
Now my learned friend Mr Burnside submits that

described as the highest level of abstraction.

these similarities are only what I think he the absolutely essential part of the two is
identical and it must be identical and I have
already pointed out the unlikelihood of that
sort of identity existing merely by chance.
It is something which is very precisely
defined and it is something which is there the
same in both the computer itself and in the

lock. Now a lot of the argument put by my
learned friends depends on various forms taken
by the programme and -

those are mentioned and then I deal with the
program in C language in the next paragraph - a programme in the C language and it works by
execution of that programme and it entails an
encrypted look-up table.
Now, in the Full Court this matter of whether

the look-up table is a substantial part of WIDGET.C
was debated and I can perhaps take the Court first

to volume three of the application book at page 153
at the bottom of the page where I am dealing with

the significance of the string of 127 digits. I
say this:
It is that string which distinguishes this
programme from any other attempt that someone
might make using a similar basic idea to write
a computer programme which will serve as a
lock. Each of them has to detect transitions.
Each of them has to have the particular 127 state machine, and each of them has to have
the wrap-around feature.

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Then at page 170 at about point 6 on that page,
having been asked a question about WIDGET.C and the
lock, I say:

We do not put it in precisely that form. What
we say is Widget.C is a programme and a
substantial part of that programmme is
reproduced in the lock and is necessarily so.
It may be that this is just a linguistic
difficulty, because the fact is that one has,
so to speak, the computer which has Widget.C

in it. One has the lock which has part of
Widget.C in it.

And at page 232 at the top of the page, dealing
with the question of whether the look-up table in
WIDGET.C is part of the instruction, I simply say
this:
The actual instruction, so to speak, in figure four of Mr Mansor to recover the value of this
position in the look-up table, is perhaps the
instruction. But that instruction has no
complete meaning, save in the context of the
look-up table.

And His Honour Mr Justice Beaumont says:

It is part of the instruction.

We say:
Yes, we would certainly accept that. It is
part of the instruction, and indeed it is the
critical thing which distinguishes our lock
from any one of the millions and millions of
other locks one could get.

And then Mr Justice Sheppard says:
There is no look-up table separately in the

Autodesk lock, is that right?

And, about half-way down the page, I say:

that is correct. The logical structure of our
argument goes as follows. In the principal
way we put our case, we say there is a
programme, being Widget.C, and there is
sufficient evidence of derivation to satisfy
half of the learned Chief Justice's test for

reproduction. So one then looks to see
objective similarity, and in looking to see
objective similarity, what you compare is
Widget.C with the accused lock.
The intermediate step -

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that is to say by way of the AutoCAD lock - we say is unimportant for the purpose of this
way that we put our case. When you look at
the first and last of those, you find that not only do they both produce exactly the same set
of electrical impulses in response to any
given challenge, but also that if one looks a
little bit below that at the mechanics of it,
one finds that they both operate by way of
look-up table.
My learned friend was disposed to suggest that

that is referring only to mechanics. In our
submission, in the context of the argument that is

clearly not so. I was not there saying that
anything which worked by way of a look-up table, no
matter what was in the look-up table, was to be
treated as being the same, or the program, but that
it was a specific look-up table, and that is, in
fact, made out in the next exchange.
Mr Justice Sheppard asked:
SHEPPARD J: There is a look-up table in the
Autokey lock?

DR EMMERSON: Yes, there is.
BEAUMONT J: In the EPROM?

DR EMMERSON: Yes, in the EPROM?
BEAUMONT J: It is the same, or virtually the
same as the Widget.C?
DR EMMERSON: That is correct, and this is the
principal way we put the matter.

So it is not just that both happened to have a

look-up table. The argument is put on the basis of
identity of the look-up table, and indeed, if it

were not put that way there would be no reason for
the various arguments that my learned friend raised
at different stages of this litigation dealing with
the question of similarities or dissimilarities
between the look-up table in WIDGET.C and in the
accused lock.

Now, the discussion continues at page 237. I

am saying something about the accused lock:

DR EMMERSON: Now, in AutoKey, the accused
lock - the look-up table is stored in the
EPROM.

This is at the top of the page.

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SHEPPARD J: When you say the look-up table,

what do you mean by that? Do you simply mean
the sequence of 127 or 128 numbers?

DR EMMERSON: Yes, that is where the numbers
in the look-up - that is where the look-up
table is.

And then Mr Justice Sheppard says just above
half-way down the page:
SHEPPARD J: But it is what we have been
talking about in this case since the
beginning.

DR EMMERSON: Yes.
SHEPPARD J: It is what Mr Burnside has
described as a sequence of 127 or 128 numbers.
DR EMMERSON: That is correct, yes,
Your Honour.

SHEPPARD J: In which he says you can have no
copyright?
DR EMMERSON: Well, he says this. We dispute

that proposition. We say you can. There is
one qualification, though, that I must
put - my learned friend sometimes talks about
the look-up table just as a separate thing and
sometimes talks about a program.

Now, the Court will be aware that the way we put the case is to say that the copyright subject-matter is WIDGET.C and that the look-up
table is a substantial part of that look-up table,
and that is why the reproduction of the look-up
table amounts to an infringement of copyright in

WIDGET.C. But we do not take the short cut of
saying it does not matter whether there is a

program at all. For these purposes, the
subject-matter is the program.
Mr Justice Sheppard says in his last question

on page 237:
SHEPPARD J: Until I began to read Mr Mansor's
report, I had thought the only look-up table
in the case was the one stored in the widget.C
program in the AutoCad. But then I saw the
reference to AutoKey having a look-up table of
its own which was the same as the one in
widget.C, and that is where I paused and

wondered. I began to think there was
something else in the AutoKey lock in addition
to what we have been told about the sequence

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of 127 or 128 numbers. But I am not sure
there is anything more than that.
DR EMMERSON: There is not anything more by
way of the essential part of the program.

So there, what is said to be the essential part of
the program which is taken by the Autokey lock,
which is the accused lock, is the sequence of 127
or 128 numbers, and that is said in terms to be the
essential part of the program.
Now, in our submission, that was always the

position, that that sequence - that look-up table -
was, to put it at its lowest, a substantial part of the program, so that by reproduction of the look-up
table the present applicants reproduced a
substantial part of the program. A similar
approach was adopted by my submissions before this
Court. If the Court turns to the transcript of
argument in this Court, the relevant passage is at

the bottom of page 12 and the top of page 13. On
page 12 I had been asked some questions by
Your Honour Justice Brennan and, in the second-last
answer on that page, I say:

If Your Honour pleases. Now, Mr Kelly
recorded precisely the sequence of dig~ts, so
this was not a case in which he either devised
the logical structure of his program
independently, nor did he devise the sequence
of digits independently. What he did, in each
case, was copy those -

and Your Honour Justice Dawson asked me:

He copied the self same sequence?

And I said:
He copied the self same sequence, yes, and he

did not devise it independently, he devised it
by copying it from the appellants' lock.
Now, in our submission, that, when

embodied as it was in the respondents' lock,
is sufficient to establish the necessary
elements for reproduction. There is both the
access to and use of the copyright work and
there is the taking of the essence of the
copyright work. And that is what the

respondent Kelly did in this case. He then
simply placed the sequence in the memory unit
in his own lock and from that memory unit it
was reproduced as the lock detects
transitions.

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So again, the proposition that is put is that that
sequence is at least a substantial, though I twice
used the word the "essential" part of the program

in which we allege copyright infringement. Now,
bound up in all of that is, of course, the next

step in the argument. I was dealing a moment ago
with substantiality, but the next step in the
argument is that the Auto-key EPROM contains a
reproduction of the look-up table.
Now, it was on the question of whether it was

a reproduction, or whether the rather different
arrangement of the numbers in the look-up table in

WIDGET.C and in the accused lock made the
distinction, that is where the real argument
between the parties, both at first instance, and on
appeal, proceeded. That is to say, there was no
doubt, in our submission, that there was a real
issue between the parties as to whether that
look-up table was reproduced in the EPROM and the

accused lock. Where the issue however was joined,
was that my learned friend's contended that because
of what was called the encrypting of the look-up
table in WIDGET.C, that made it for relevant
purposes different, so that it could not be said to
be reproduced.
Now, if the Court goes to page 102 of the

first appeal book, my learned friend, Mr Burnside,
is dealing with that point in the last full
paragraph on page 102, and what he says is this, it
is about point 7 on page 102:
Accepting that an infringement of copyright
has to be a reproduction of a work which
involves a resemblance, the question is
whether the look-up tables, viewed for the
present purpose as some sort of computer
programme, do the look-up tables in WIDGET.C

and in the EPROM resemble each other? Now of
course in the C code version of WIDGET the

look-up tables are utterly different because
all you get in WIDGET.C is the sequence of 16
decimal numbers that your Honour has seen on
exhibit Rl6.4, and that looks nothing like a
table of 127 binary digits.

So, the point that is taken is what I might
describe as the encrypting point. It said that
because in WIDGET.C the digits of the look-up table
are, to use a short expression, encrypted, that
means that the two look-up tables do not look the same and it was that similarity in appearance, or
alleged dissimilarity in appearance, which my learned friend relied upon at first instance.

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At 131, in some written submissions that he handed up at first instance, in the paragraph
beginning just below half-way down that page, he
says this:
The similarity between WIDGET.C. and the
Autokey lock is that each refers to a look up
table to ascertain the next digit in the
series. But that is a similarity of logic,

not of appearance. The precise method
employed is different in each case.

So, there again there was issue joined; has it got
anything to do with appearance or is it whether the
two tables are in fact the same and, of course,
there is a suggestion there that some difference
in, as it were, the electrical mechanism by which
the look-up table is accessed may make a
difference, and again there was an issue on that.
But again these are issues which were raised, and were raised only because, at all times, there was
an issue between the parties as to whether the
present applicants had in their EPROM reproduced
the look-up table in WIDGET.C.
Now, this point about encrypting was dealt

with by Mr Ritter, at page 74 of the application
book, again at first instance, and he deals in the
passage beginning at the second full paragraph down
the page, to deal with why he says it is the

encrypting that makes the difference. He says:
In WIDGET.C, if you choose, and it is not so
expressed, but if you choose to so express it
in binary form, simply by putting one next to
the other, they are different.

And then he deals with the way you access it, and
he says the way it is all arranged is different
and, at the second-last full paragraph on that
page, he sets out the conclusions which he draws

from those submissions. If it is on or off within its own programme operating inside the computer, it looks up
what it expects. It goes and says, "What
should I get?" But certainly one would not

have a look up table the same as that produced by the Auto-Key lock. One would have a series
of dots and dashes produced from writing the
16 decimal numbers in binary form, and then it
would enter them at a particular place and
move in a particular direction and say, "That

is what I expected. We may keep going."
That does not involve any copying of any look
up table -

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Again, it is accepted throughout all this line of
argument that there is an issue between the parties
whether there was a reproduction of a substantial
part of WIDGET.C, namely the look-up table, in the
EPROM of the accused lock.
I deal with that in my answering submissions

at first instance at page 120 in the first
application book. There I had been dealing with
the several ways in which we put the argument at
first instance, one of them being that you did not
need to look to see beyond what the locks did, but
then at the alternative argument, I say this:
There is one further point I would add at this
stage and that is that while our principal
submission is that one does not have to look
any further, if one does in fact look further,
of course, both the WIDGET.C programme as
arranged in the AutoCAD and the programme as
arranged in the Autokey lock both use look-up
tables and I want to say just a little bit
about some arguments directed to look-up
tables.

This His Honour asks a question which I answer. In the second-last passage on that page, I say:
Your Honour will recall that the actual
physical arrangement of the look-up tables is
different in that although in each case you have a series of binary digits stored, they
are stored in a more compressed way.

HIS HONOUR: Compressed encryptically?

DR EMMERSON: Compressed and encrypted,
exactly, your Honour, in WIDGET.C. Now the
compressing and encrypting simply amount to
this.

I go on to address argument to the point which is
really the essential one taken by my learned
friends at first instance, namely that it is the
compressing and encrypting which makes the
difference and which is the reason why they say
that the Court should not conclude that the EPROM
in the accused lock is a reproduction in material
form of the look-up table in WIDGET.C. The issues are joined in the same way when we
get before the Full Court. These same matters are the ones which are litigated. If I could take the
Court first to volume two of the application book,
at page 62 my learned friend, Mr Burnside, deals
with the question of reproduction of the look-up

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table in WIDGET.C by the EPROM in the accused lock.
He says this at the top of page 62:
What was going to be encoded into the EPROM
was the look up table. That is what it was
referred to. This is the 127 bits, they can
be described as a table, the table is looked
up in a sense and in any event during the
course of evidence it was called a look up
table. That is what his Honour said was going
to be encoded into the EPROM but not any
program from which that look up table was
generated or derived.

Then he said that it -
does not support the suggestion that the look

up table was the product of a program. The
look up table originated from Mr Kelly's
observation of the output -

and His Honour Mr Justice Beaumont says -

Yes, why could not that be a program? It may not be one that infringes Dr Emmerson's, I
understand that, but we are now on the
preliminary point of whether there is a
program at all involved in either of these
devised.

My learned friend says -

Yes. If the court were to take the view that
the 127 bits in the EPROM constitute a program
we would not be unduly concerned about that
although we would submit that is not accurate.

So that is not a matter which he is concerned about
but what he does then take are the familiar points
about whether there is sufficient causal nexus
between the WIDGET.C and the accused lock and, of

course, the encrypting point. over the next passage and the issue of whether or He develops that not it is a program is returned to at the bottom of
page 80 and the top of page 81 where my learned
friend says:
there was evidence from the experts, from some
of the experts at least, that the locks did
not contain or comprise anything that would be
recognized as a computer program -

We would say, incidentally, apropos of my learned
friend's submissions this morning that the
qualification from some of the experts, at least,
is more correct because, in fact, Professor Dillon,
at first instance, took the view that it was a

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computer program. His Honour Mr Justice Sheppard,
at the top of page 81 says:
There would not be any reason for giving these
words any narrow construction. They should be
construed not so that they cover every
conceivable thing necessarily but they should
not be given a narrow construction, they
should be given a beneficial construction. It
is remedial legislation, after all.

My learned friend accepted that and then went on to deal with more about the Apple case. Then, if one
goes to volume three of the application book where
I deal with the question of the reproduction of the
look-up tables, in dealing with Mr Mansor's
evidence - perhaps I could start at page 225,
actually.
I deal first with the evidence of

Professor Dillon about the similarity between the
look-up tables - this is all to do with the
encrypting point - and I quote a passage at about
point 3 on the page from Professor Dillon:
The look-up table stored in the Autokey system
is a slight variant of the look-up table
stored in Widget C in the AutoCAD programme -

and then, down at the bottom of the page, the
fourth line from the bottom I introduce Mr Manser,
who was another of the witnesses who gave expert

evidence. I say:
The next report is that of Mr Mansor, who did
part of the decoding. It is probably not
necessasry to take the court to that in quite
so much detail, because he is primarily
concerned with looking at the precise way in
which the look-up table is coded in Widget C.
In other words, he is concerned with showing

that the passage in Widget C to which I have referred the court does in truth contain a
look-up table, which does in truth contain all
127 numbers of the 127 state machine, and
contains them in the right order.

That is, again, of course, an essential part of the
argument.
And then I deal with the accused lock and at

the bottom of page 227 I point out there that again
one has a look-up table. Then at page 231 through
to page 233, Mr Justice Beaumont at the top of the
page asked me:

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Is this over simplifying your case? Do you say the look-up table arrays were essentially the

same?

I say:
Yes, we do indeed.

And then I am asked:

They appear to be. Why do you need to go

beyond that? How do the other questions
arise?

And I am seeking at that stage to keep all issues alive and deal with the identity of the look-up tables and the passage about half-way down the
page, after dealing with the technical way that it
is put, I say:

And, of course, then sent it out. We say that

is what the programme does. We then essay the
task of showing that once you decode them the
two look-up tables are identical. That is to
say, there is an identical look-up table in

Widget.C and in the accused lock. We put in
this evidence from Mr Manser on this point
simply to make good our statement that the
look-up tables are identical.

Then Mr Justice Beaumont refers to the evidence and
says:
I am not trying to confine you at all, but is it your case that the relevant instruction for the purpose of the definition of computer programme is found in the look-up table?

And I say:
Essentially, yes, or the relevant instruction

takes you step by step to look up in the
table.

And, over the page, at the top of page 232, in the
fourth line, I say:
The actual instruction, so to speak, in figure
four of Mr Mansor to recover the value of this
position in the look-up table, is perhaps the
instruction. But that instruction has no
complete meaning, save in the context of the
look-up table.

Now, this raises a matter which my learned friend
raised this morning and which indeed was raised

both at first instance and on appeal. My learned

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friend seemed at some stage to approach the matter
as if it was necessary that the program should be
either in the look-up table or something outside
the look-up table. Now, our position was and is
that the program is WIDGET.C, that the look-up
table in WIDGET.C is a substantial part of that
program, but it is not the totality of the program
and - - -

DEANE J: But is not the problem with this that obviously

you submitted that the accused lock, or whatever
you call it, infringed your copyright, because in functioning it produced a similar output and that the identity of the look-up table or the great
similarity was of critical importance to that
argument?

MR EMMERSON:

No, Your Honour.

DEANE J: Well, what I am trying to ask you is, did you at

any stage put the submission that the mere presence
of the 127 series in the accused lock of itself
infringed your copyright without any need at all to
look at function or anything else?

MR EMMERSON:

Yes, Your Honour. That is what we would rely

on in some of the passages that I have been quoting
as saying.

DEANE J: Well, I have not seen you put that in language

that I could understand as saying, quite regardless
of function, the mere use of the 127 series in
their lock constituted an infringement of

copyright. Can you point to the place where you
said that clearly?

MR EMMERSON:

Yes, Your Honour. Wherever I am referring to,

so to speak, the second layer of argument, I am
referring to precisely this point. Could I perhaps
say what is the relationship between the argument
that we put and the matter of function? One

argument that we put, which is not the argument
with which we are presently concerned, was simply
that you did not need to inquire at all how it was
that the lock came to deliver a particular response
to a particular input signal. We said that it was
sufficient for our purposes without knowing at all
how it worked: that it gave exactly the same
response.

Now, that was what has been called the function argument.

Now, for the purpose of that
argument it did not matter at all that the accused
lock had a look-up table because one did not get to
the stage of asking what was inside the lock, and
it was on that basis that we put the argument that
both our own lock, the AutoCAD lock, and the

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accused lock had the program in it. The AutoCAD
lock, of course, did not have a look-up table in it
but for this argument it did not matter.
Now, the alternative argument, on the

assumption that that was not successful, said, very
well, one has got to look at the actual WIDGET.C
program and see whether a substantial part of that
has been taken and put in the accused lock and it
is in that context that one looks at the look-up
tables and one says, yes, there is a look-table in
WIDGET.C; it is a substantial part of WIDGET.C and
that has been taken and put in the accused lock.
Now, it is in that context and, in our submission, only in that context that any question arose either
at first instance or in the Full Court about the
similarities between the look-up tables in WIDGET.C
and the accused lock.
The whole argument proceeded on the footing

that either one was not concerned about the matter
at all, which was the function argument, or that
what we were concerned with was a specific point of
similarity which would give the objective
similarity which we had to show between the accused

lock and the WIDGET.C. So, in our ·submission, the
answer to Your Honour's question is that it is
assumed throughout the argument, we would say, by
both parties, on this question of similarity
between the look-up tables, that that is what is in
issue and it is only just now that my learned
friend seeks to put a different complexion on that.
Now, what I am seeking to show and what we submit
is that that complexion simply was not there at
first instance or on appeal.
I have been taking the Court to page 232 of

volume three of the application book which deals

·with some of the argument put before the Full

Court. I think I had got part-way down the page
where there is a reference to look-up tables.

Perhaps I should repeat the passage beginning at

about half-way down that page. I say:
The logical structure of our argument goes as
follows. In the principal way we put our
case, we say there is a programme, being
Widget.C, and there is sufficient evidence of derivation to satisfy half of the learned
Chief Justice's test for reproduction. So one
then looks to see objective similarity, and in
looking to see objective similarity, what you
compare is Widget.C with the accused lock.
The intermediate step we say is unimportant
for the purpose of this way that we put our
case. When you look at the first and last of

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those, you find that not only do they both produce exactly the same set of electrical
impulses in response to any given challenge -

and that is the functional similarity argument -
but also that if one looks a little bit below
that at the mechanics of it, one finds that
they both operate by way of look-up table.
SHEPPARD J: There is a look-up table in the
Autokey lock?

DR EMMERSON: Yes, there is.
BEAUMONT J: It is the same, or virtually the
same as the Widget.C?
DR EMMERSON: That is correct, and this is the
principal way we put the matter.

So we at all stage maintain as one of our arguments
that it is sufficient to establish infringement to
show that you have a look-up table in the accused
lock which is identical or substantially identical
with the look-up table in WIDGET.C.
Now, my learned friend, Mr Burnside, in his reply before the -

DEANE J:

Dr Emmerson, I do not want to delay you, but if

that is what you are saying, what is the relevance
of:
When you look at the first and last of those
you find that not only do they both produce
exactly the same set of electrical impulses in
response to any given challenge, but also that
if one looks -

I must be missing something. Why would you not

simply say there is a series embedded or involved
in WIDGET.C which is part of a computer program
that is copyright. The series embedded in the
EPROM in their lock without reference to what it does or anything else reproduces a substantial part
of that copyright material?

MR EMMERSON:

We did say that, Your Honour, but it was not

our primary argument; that is the difficulty.

DEANE J:

Of course, part of the problem might be that you

said it in language I do not understand. That is
not critical of you; it is the computer language.

MR EMMERSON:

The primary argument was what one can call the functional similarity argument, the fact that each

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of them did exactly the same thing. I am here
showing how, in the context of the argument about
indirect reproduction, all this fits in.
To deal with indirect reproduction, I have got

to deal with the point that for this part of the
analysis, it does not matter how you characterize

the AutoCAD lock, which is our lock. What you have
got to do is divide the discussion up into two
limbs. You first seek to see whether there is
sufficient causal connection and if you find there
is sufficient causal connection, you look to see
whether there is sufficient objective similarity.

On the issue of objective similarity, again the arguments go in layers.

The top layer is to
say it is sufficient that if you send any challenge
string into either of the locks, you get back the
same response. That is sufficient, so that
argument ran, to establish the objective similarity
which you need to show that one program is a
reproduction of the other.
As it happens, that argument has not been

accepted; therefore today we are concerned with
the subsidiary argument which is not related to the
functional similarity point at all but which goes
on a much narrower point, namely that even if all
that is wrong, the look-up table is a substantial
part of WIDGET.C and the look-up table has been
substantially reproduced in the look-up table in
the EPROM. That is the reason for the particular
sentence that Your Honour was pointing out to me.
We have got a reference back to the argument about
function and then a reference to the argument by

way of look-up table. We accept that the look-up
table argument is one which is there alive and
indeed is being vigorously pursued.

BRENNAN J:

But what is meant by "both operate by way of

look-up table", is that something different from

function?

MR EMMERSON:

Yes, it is different from function.

Your Honour will note that what has in fact
happened there is that I had not completed the
answer that I was giving at this stage. His Honour
Mr Justice Sheppard there says "there is a look-up table in the Autokey lock", and it is then that we
carry through to the other part of that
proposition. It is not just that they both operate
by way of a look-up table but that the look-up
tables are the same or virtually the same because
we, at no stage, submitted that anything which had
a look-up table, regardless of what was in the
look-up table, would amount to an infringement.

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That was never ever any part of the argument and, indeed, was expressly disavowed.
My learned friend, Mr Burnside, in replying

took what I will call the data point. His argument
was that the look-up table was only data and,
therefore, could not be an essential part of the
WIDGET.C program. We, of course, did not agree
that that was a correct analysis but, again, it is
worth noting that this arises in the context of an
argument in which the parties' minds are focused on
similarities and dissimilarities of the look-up
table, that being the point which was in issue in
this part of the argument.
Now, there is some more references to the

detailed arguments which were put by my learned
friend and by Mr Ritter about the argument that the
look-up tables were sufficiently distinguished
because of the encrypting; that was argued at

first instance. I have given the Court some
references, Mr Ritter at page 74, I need not take
the Court back to that.
Mr Ritter, at page 85, deals directly with the

question of whether the look-up table has been
reproduced. At 85, in the first full paragraph on

that page, four lines from the bottom of that
paragraph, he says:
If it be said that within the program there is
that part called WIDGET.C which has in its
source code expression 16 decimal digits, then
that is not in any way reproduced in the lock.
Apart from the fact that there was no, we
would say, connection of any relevant kind -

that is to say he takes the causation point -
there was no examination of what was within

one could not ascertain what it was that was the lock, within the program in that sense, in that program.

And he deals with the way the look-up table was

encrypted in a set of numbers. He says:
They are not reproduced, nor is - if one assumes that they ought to be expressed in
some other way and they are not - but if one
assumes for the purpose of looking at it that
that is a table and has that been reproduced,
the simple answer to that is it has not.

So the question of whether there is a reproduction of a table is considered by Mr Ritter and he

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directs his submissions for saying that it is not
and the reason why he says it is not is the
different way in which the numbers are arranged.
He also takes the point of the so-called access point or the indirect copying point at the bottom of page 85. So again the field of discourse that
we are concerned with here is whether the look-up
tables are sufficiently similar and whether one was
in the relevant sense derived from the other.
My learned friend, Mr Burnside, on the question of sufficient resemblance - I think I had
taken the court to page 95, the first full passage
from my learned friend at that page. At page 102
at about point 8 on the page, I think again I have
taken the Court to where my learned friend asked:
do the look-up tables in WIDGET.C and in the
EPROM resemble each other?

And he goes on to give the arguments as to why they
do not. At page 103 he continues that argument and
it is really the encrypting point which he is there
taking and he continues it down page 104,
concluding in the fifth and sixth lines of the
second paragraph on page 104:
and it follows, it is my submission, that the
look-up tables cannot be said to resemble each
other.

So all that was very firmly in issue at, indeed,
all stages of the argument.
So, in our submission, dealing so far only

with the first of the three questions sought to be
raised, it is clear that at all stages the parties
addressed submissions and evidence to the question
of whether there was sufficient similarity between the look-up table in the EPROM in the accused lock
and in WIDGET.C for one to be a reproduction of the
other for the purposes of copyright infringement,

and that was simply the basis on which the argument
has proceeded at all stages, we would say, so far
as the first question is concerned.
If I go on to the second question which it is

said that the present applicants want to raise.
This is set out on page 12 of the first volume of the appeal papers and this is the indirect copying

point. Now, so far as that is concerned, the

argument went as follows: we alleged that the
accused lock was an infringement of copyright in

WIDGET.C. It was then said that the present
applicants did not have access to WIDGET.C,but had
worked simply from an examination of my clients'
lock.

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Now, our response to that was that there was

nevertheless an indirect copying because it is well
established that one can indirectly reproduce a
literary or artistic work by examining something
which is not the work itself, but something which
has been made from that work. Now, so far as the
question of whether that latter proposition is a
correct statement of law is concerned, the parties
agreed and, indeed, the argument proceeded on the
footing that it was common ground that one could
have indirect copying. What was in issue is
whether indirect copying had occurred in this case.
Now, Mr Ritter dealt with cases about indirect

copying, accepting the law as I have stated it at
the top of page 64 of the first appeal book, and he
also dealt with that in his written submissions at
first instance, at pages 126 and 127 in the appeal
book. My learned friend Mr Burnside in the
Full Court accepted that that was perfectly
possible. At page 245 in volume three in part of
my submissions when dealing with this point I say -
this is at page 245 at about point 7:
In our submission it is well established that
one can have indirect copying, and I could
here take the court first to some passages in
Copinger which make that good.

Then my learned friend Mr Burnside intervenes and
says:
It is not contested, if that is useful to the
court. It is not contested that one can have
indirect copying.

So that is not in issue. And then the matters
which are in issue affect the causal nexus which,
indeed, was one of the points which my learned
friend said he wanted to argue if the matter was
reopened. Again, we would say that this is
something which has been argued at all stages.

The causal nexus for our allegation of

indirect copying came via the AutoCAD lock, that is
to say the lock made by my clients. The argument
which we put was that WIDGET.C and the AutoCAD lock
were designed together, they were like interlocking
parts of a piece of machinery. It made no sense at
all to talk about one coming before the other;

they were designed together. So there was a clear
causal link between the WIDGET.C and the AutoCAD
lock.
By spending a prolonged period of time

examining the behaviour of the AutoCAD lock, we
said that the applicant Kelly was not doing some

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original work at all; what he was doing was
copying. There was a clear causal nexus; that was
fully established.
There was an argument, both at first instance

and in the Full Court, about whether there was
sufficient causal nexus, and here my learned friend
has passed up a sheet of paper to the Court to
raise that issue again, and indeed raise what
appears to be a new argument of the reasons why he
says that there could not be a causal nexus. That
has been at issue at every stage so far in these
proceedings.
So, ultimately, the causal nexus point came

into a fairly narrow compass, but it was something

which was in issue at every single stage. Now, I
can perhaps make that good by taking the Court,
first, to the first volume of the appeal book where
Mr Ritter deals with this at page 64 at the start.
The question of which came first, he says this in
the short paragraph in the middle of the page,
page 64:
The AutoCAD lock is not a derivative of any

part of the AutCAD hardware program. I want
to deal with that because it is not as if the
lock came along; that is, it is not as if - I
think it should be software program anyway -
the lock came along because the software
program when run - - -

HIS HONOUR: Was deficient, in other words?

MR RITTER: It cannot even be said it derived
from it, it is a matter of which came first.
Did the lock come first or did the program?

And so that question is raised and argument about
it is directed, and His Honour says, at page 66 at
about point 4, about the two coming together, he
says:

It would need to be a complimentary type of
activity?
MR RITTER: Yes, I suppose it is a bit like a nut and a bolt. You can hardly say a bolt is a copy of a nut but if you produce a nut then

you can have a bolt to fit it. Yes, they are
complimentary in that same sense, but
certainly one would never say that the bolt is
a copy of the nut.

Whether or not that latter proposition is right
there is still clearly a causal nexus there and
that was what we contended.

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Then he argues about the time sequence. says at 67, at the top of the page:

He
And in particular as the only part of the
program allowed on -

I think he means relied on -
is Widget.C, it can hardly be contained in the
lock if it was there in the lock first. That
is it can hardly have been copied from or
taken from Widget.C.

So this point about causation, which my learned friend seeks now to air, was again something which
was raised at first instance and has been at issue

between the parties at all stages. Mr Ritter
returned to the derivation point at page 70, in the
third paragraph on that page, beginning about
half-way down the page, he says:
It is my submission that no part of the
AutoCAD programme is contained within the
AutoCAD hardware lock. First, one goes back
to the derivation point, which came first.
How can it be said, if one has already
produced the hardware lock, that any part of
the AutoCAD programme, computer programme, is
within that lock? You have got a lock and the
computer programme does not exist. It has not

been produced. How can it be said that in
relation to taking the first lock, that
somehow part of the AutoCAD computer programme
exists within that lock? The programme in
that sense, if we are referring to that part B
in Widget C did not exist, Widget C came along
later?

HIS HONOUR: I have certain problems with the
submission. Each depends upon the other.

And at the bottom of the page His Honour puts to
Mr Ritter:
I can understand that submission but on this
"which came first" is the one that is causing me problems at the moment. To my mind at the
moment it does not really matter.

So they have plenty of opportunity to deal with the

causation question. Mr Ritter refers to it again

at the bottom of page 84. He says:
There is no suggestion, of course, that the
source code ..... is something which Mr Kelly

had access to. So that we have, in my
submission, no computer program, as I have

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said, within the lock and of course there has
been no copying or reproduction of anything
within the - run within the program
itself ..... no relevant connection.

So he again develops and deals with that point.
At page 96 of the first volume of the appeal books, my learned friend, Mr Burnside, is dealing
with the derivation point and he again deals with
the very question, which is the second question

sought to be raised in the present application. He
says at page 96 about point 6:
My next submission is that even if you thought
there was a resemblance between WIDGET.C or SP TEST.C and the Auto-key lock, the second required element for there to be a
reproduction - that element is

derivation - and that element is missing. The
Auto-key lock, it is submitted, was not
produced by use of WIDGET.C or any version of
WIDGET.C. Certainly WIDGET.C itself was not
the source of anything for Mr Kelly's work.

He says there is no evidence of access to WIDGET.C,
and again deals with derivation, so perhaps I need
not take the Court to the passage on page 97 in

detail. It is clear that issue is joined on this
point.
Now, equally, in response to that at page 106

of the first appeal book at the top of the page, I deal with the question of independent creation and give the various arguments as to why it could not
be said that the accused lock was derived
independently.

Over the page at 107, I deal with the difference in physical arrangement.

I think I had

already taken the Court to that. On indirect

copying at page 108 towards the bottom, again I
point out that one can and often does have indirect

copying, and that is what we say occurred here. I
think I have taken the Court to that and also to
page 111.
At 113 I deal with our submission that it does

not make any sense to ask which came first out of
WIDGET.C or the AutoCAD lock. In my second passage
on page 113, beginning at about point 3 on the
page, I say:
In our submission it is important to remember,
when one considers the two forms of this
programme, that neither of them in practical
terms can exist without the other; that is to

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say, the only point of the lock is that it can
work in conjunction with AutoCAD and the only
point of this part of AutoCAD is that it can
work in conjunction with the lock.
In our submission it makes no sense to
inquire, as my learned friends did, which
comes first out of WIDGET.C and the lock as if
these two are somehow capable of independent
existence and have some sort of value
independently of each other. They necessarily
come together.

I go on to develop that point, which again is
concerned with the very point which is put as the
second question which it is said has not been aired below. We would say that it is clearly aired below and substantial submissions are put on both sides.
Again on the question of independent creation,

I summarize our submissions at 117 right at the

bottom of the page and the first part of 118. I
need not go again to what I say there, but in
substance what then happened was that His Honour
Mr Justice Northrop, the judge at first instance, accepted the submission that it did not matter
which came first and he did that at a page
reference which I will give the Court without
taking the Court to it, which are pages 981 to 982
of the original appeal books.
In the Full Court this point was aired again.

My learned friend, Mr Burnside, dealt with causal connection. He first, in his opening summary, at page 119, says, in the second paragraph:
If it is put against us, then, that there is
an infringement of the copyright in Widget.C, which copyright we do not deny, we simply say
there is not only no similarity but no causal
connection because Mr Kelly just simply did

not look at Widget.C and the expert evidence
was that you could not tell what Widget.C was
doing merely by seeing what response was
acceptable but it may be better to wait and
hear what case is actually put against us.

And Mr Justice Sheppard intervenes at that point.
Then, in fact, the case is again put against my learned friend. Now, on indirect copying, I advert
to that in volume three of the application books at
page 169. In the third full paragraph on that
page, which is about the middle of the page, I say: This is of some significance because part of
our answer to one of my learned friend's
submissions to the effect that his clients

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never had access to any source code of ours,
is that it does not ultimately matter whether

you have access to source code. What is
necessa.ry is that the accused programme be
based on or derived from the copyright
programme. It has, we say, nothing to do with
whether you have access to the source code.

And then down at the bottom of 169, the last
passage from me at that page:
My submission really goes to the indirect
copying point, namely, that one can infringe
without having direct access to.

Now, at page 170 and 171 there are references to
indirect access and on the point about the two,
that is to say, the AutoCAD lock and WIDGET.C being
devised at the same time, I say, reading from the
last three words on page 193 and at the top of
page 194:
It is a combination in a special sense, in
that if one says one starts with Widget C, but
that is necessarily devised at the same time
as the Auto CAD lock because the two are
inseparable and they form part of the same
system, then it is a combination in the sense
that the chain of derivation by which we say
infringement took place goes, on that view:
Widget C, AutoCAD lock, accused lock.

And then there is a comparison between that and the
Apple case and the answer at the middle of that
page, in the last few lines beginning at about
point 6 on page 194, I say:
but His Honour dealt with the programme, being
Widget C, and His Honour held - in our
submission, quite correctly - that since the
Widget C programme and the programme in the

AutoCAD lock necessarily were, so to speak, part of the same thing, they were interlocking
parts, that he just did not enquire which came
first.

Then my learned friend, Mr Burnside, responded to
that on the questions of access and causation at
pages 270 to 271, but he is really there making the
same point again.
All this point about causation is, of course, also taken up in the supplementary submissions
which were put in by my learned friend's clients at
pages 34 to 35 of the first volume of the appeal
book. It is perhaps convenient to look at the fact that each of the three questions is dealt with

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there. At point 3 on page 34, my learned friends
take the point:
The look-up table in Widget.C is data rather
than instructions -

and they deal with that. Then, in paragraph 5 they
say:
The portion of code shown at Appeal Book 818 is a very small portion of Widget.C -

which appears to go to the substantiality point.
Then, at the bottom of page 34 they deal with the causation point -
Autokey was developed without use of Widget.C.

And then they say:
Accordingly, no part of Widget.C
(alternatively, no substantial part) has been
reproduced in Autokey.

So all of that remains live right to the very end
and, indeed, my clients then responded and I have
taken the Court to the passage at page 38 in our
response, the last eight lines of that letter which
deal, amongst other things, with both the question
of whether it was a substantial part, whether it
was essential and it deals with our submission that
there was indirect copying.
So none of that is new, we would say, at any

stage after the trial at first instance where all
these matters were first argued in detail.
The third question that is sought to be raised

set out on page 12 of the first appeal book: Whether copying data contained in a computer

program can constitute a reproduction of a
substantial part of that computer program?

This is, so to speak, the data point. In our
submission, if that is to be raised by my learned
friends, it becomes an issue the moment there is an
allegation that there is an infringement by
reproduction of the look-up table. It is something
which then, if they want to raise it, they can. In
this case they did raise it.
At pages 77 to 78, Mr Ritter, at the bottom of

that page, dealt with his submission that the
127-bit string was just 127 bits of output waiting
to be sent off. That seems to be the same point as
the point that it is only data. At page 80, under

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instructions, Mr Ritter, in the first paragraph on
that page in the last two lines, deals with the
distinction between instructions, and he says mere
data would not suffice. Then in the middle of the
page, he says mere return of data from the hardware

is not enough. As to what is embedded in the ROM,
at page 81 at about point 9 on the page, in his
second-last full passage on that page, about four
lines from the bottom:
instructions which are imbedded in, say, a ROM
as against data in a ROM, the simple fact is
that there is nothing in the lock which is in
any way an instruction, let alone a set of
instructions.
So, he takes that point about data and my

learned friend, Mr Burnside, equally raised that
point. At the bottom of page 97, dealing with the
string of 127 bits being common to the WIDGET.C and
the accused lock, he says:

Two questions arise. The first is, are those
127 digits a computer programme.

Then he says:
I spoke in language that suggested that it
would be put that the 127 bits are a computer
programme. It is submitted that that is not
tenable ...•. not a set of instructions in any
proper use of that expression.

And he refers again to Dr Forward, and gives
passages of Dr Forward's cross-examination which he
submits supports his argument that all of this is

data. And, at page 100, the end of the second
paragraph on that page, he says:
The evidence therefore remains that the
relevant part of the look-up table, the 127
digits we have been talking about, have not

been said by any witness to constitute
instructions.

So, once again, it cannot possibly be said, in our submission, that all of this is new and something
which has not been argued before. It is certainly
something which was argued at first instance.
Equally, it was argued in the Full Court.
If one goes to volume two of the application

book at page 107, in dealing with the 127-bit
sequence, and he says, about six lines from the
bottom:

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It is, with respect, wholly against the weight
of the evidence in which the experts on both sides said that the output of a programme is
distinct from the programme itself, and that data is distinct from instructions, and that
the output of the locks, in this case, is just
data and not instructions.

So he puts that argument and similarly at the top of 108 and on 109. On page 109 he submits at the
middle of the page:
It is our submission that Your Honours ought
to find that His Honour was wrong in holding,
if he did hold, that the 127 bits constitutes
a set of instructions.

And so, again the issue is raised and is dealt

with. He refers to it again at page 111 in the
middle of the page and at page 115, in the first
full paragraph on that page, at the last sentence,
he says:
One is the set of 127 bits, and we submit that
those are not capable of being described as a
set of instructions.
On the question of whether the 127 bits could

be a program, Mr Justice Sheppard asks whether that
had been raised by the court below and my learned
friend, at the top of 116 says:

Yes, your Honour, that is right. We did say
that they could not be programs.
SHEPPARD J: You said it not on this basis,
but on the other basis that you have just
explained.
MR BURNSIDE: Yes.

SHEPPARD J:
benefit of the submission of the kind you have

So his Honour did not have the

made to us.

MR BURNSIDE: Not of the submission that if
there is copyright in the underlying
characteristics, it cannot be Autodesk, no.

SHEPPARD J: Or that 127 bits cannot be a
program?
MR BURNSIDE: That was certainly put,
your Honour, yes.

Again, we would submit that it simply cannot be
said that these matters which are now sought to be

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raised by my learned friends are not matters which were in issue, on which they have been heard, both
at first instance and in the Full Court. And there
is nothing that can be said, in our submission,
which would establish that they are, in any way,
taken by surprise.
As to whether the reproduction itself need be a program, that was accepted by my learned friend,
Mr Burnside, at page 70 in the Full Court in volume

two of the appeal books. Mr Justice Sheppard puts
to him, about half-way down the page:
I suppose it would be possible, would it, for you to have a programme reproduced by something which was not itself a programme?
If the subject of copyright is a literary work
because it is a computer programme, then it
matters not what the article or thing that
reproduces it is. If it reproduces it without
licence or consent, it is an infringement.

And my learned friend says:

Yes. I think, with respect, that is right.
For example, one could have a programme which
in the first instance is keyed in from the
keyboard without ever being written down and
which is later decompiled -

et cetera. And His Honour says, at the bottom of
the page:
But it may not be relevant to enquire whether
what is alleged to be a reproduction is a
programme itself or not. The principle
enquiry has to be whether that in which
copyright is claimed is a programme.

Now that is, in our submission, a correct
statement. It was put to my learned friend; he
accepted it with a bit of a demur.

Yes. With respect, we would agree with that. He says:
The difficulty with that, of course, would
simply be that in determining equivalence,
substantial similarity, the fact that the
alleged reproduction was not itself a
programme might call for a different test of
similarity or equivalence. But in this area,
it is very difficult to talk hypothetically
because the possibilities are so numerous and
substantially unexplored.

So that issue is raised in the Full Court and in
substance my learned friend does not contest that

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the reproduction of a substantial part of a
computer program must itself be a computer program. His Honour again returned to this matter at
page 131, still in volume two of the application
book where, in his second passage at 131 beginning
at about point 4, says this:
The other thing occurred to me about it and

you may agree or not agree with this: we
discussed yesterday whether you could have an
infringement which was not itself a computer
program. And we, as I understood it, that you
could. Be that as it may, all this does is to
define what a computer program is. If you
have got two computer programs, one of which
is said to be an infringement or something
which is not computer program which is
nevertheless said to be an infringement, it does not matter that either the two or only

the one is a program. The question is whether
you have got a reproduction which is not
authorized.

MR BURNSIDE: Yes.

His Honour put the matter to me at 159 and I
introduced a complaint about my learned friend's
vanishing trick. It probably does not take the
matter much further.
In the supplementary submissions in volume one

of the application book - I have taken the Court to
the relevant passages on page 34, but clearly the
point about being data rather than instructions is
taken up by my learned friends in their letter at
page 34, and it is responded to by my clients at
page 38.
In our submission, the true view on this

analysis is that each of the questions that was

referred to in the affidavit in support of the
present application and which are set out on
page 12 of the first volume of the appeal papers
was in fact a question which was treated by the
parties as being in issue at first instance and in

the Full Court. It simply cannot be said that
these were not matters on which my learned friend's
clients have had a chance to be heard. Still less
can it be said, as the affidavit argues at the
bottom of page 12 and the following pages, that the
present applicants have been denied an opportunity
to lead evidence on these matters.
If I am correct, as in my submission is

clearly the case, in submitting that each of the

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questions in paragraph 19 has been raised and dealt
with at first instance, then - - -

MASON CJ:

You do not need to develop the consequences of

that.

MR EMMERSON:

If Your Honour pleases. So that deals with

paragraphs 1 and 2 of our outline. I can be more
brief clearly with the remaining paragraphs. Paragraph 3, as the parties proceeded on the

footing that these questions were in issue, it does
not matter whether they were raised in the
pleadings and in any event they were raised in the
pleadings. In our submission, it is clearly
established in this Court that if the parties
proceed on the footing that certain matters are in
issue, then it is not to the point for one of them
to complain afterwards that the point was not

raised in the pleadings. I would simply refer the
Court to Green v Sommerville, (1979) 141 CLR 594,
especially at 607 to 608, and O'Brien v Komesaroff,
(1982) 150 CLR 310, especially at 318.
Paragraph 4 I probably do not need to deal with. My learned friend, in a sense, gave a bit of
evidence from the bar table tending to suggest that
there would be terrible consequences for the
computing industry if the decision in the present
case remained the law. It is difficult to deal
with that because it is put by way of assertion and
not by way of evidence but, in our submission, if
these were matters which were relevant then they
should have been raised and supported by evidence
at the time of the trial when these issues were
first raised.
Furthermore, we would say that since the main

questions of law which arise in this case concern the computing industry as to what were the
the construction of the 1984 amendments made to the
advantages and disadvantages simply are not

relevant and would not have been admissible at
first instance even if my learned friend had sought
to raise them.
It is, of course, true that the issues in this

case are important. We would, of course, argue that
if the decision had gone the other way, making it
permissible to do what the present applicants have
done in this case, that that itself would have dire
consequences with the computer industry. But the
fact is that before this Court, as before the courts
below, the question was, "What do the 1984
amendments mean?" and, as to that, evidence of the
sort referred to by my learned friend would not be

relevant and admissible. I simply touch on it to

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say that we would simply not accept his assertion
which tended to suggest a general climate of
disapproval of the decision in the present case.
That is something which we would certainly not
accept as being a correct statement of the facts.
Now, our fifth point however is that the present application comes on any view too late,
because this Court did give the present applicant
an opportunity to be heard. It is true, as
Your Honour Justice Deane, with respect, correctly
put to me, that the letter starts with asking
whether counsel are agreed on something and does
not actually deal with the consequences of what
happens when they disagree, but the fact is both
parties dealt with the substantive issue raised,
rather than simply saying there is a condition in
the first paragraph which is not satisfied, and
they both directed submissions and we informed the
respondents that we were going to direct
submissions in reply to their submissions and we
did do that, and they received copies of those
submissions and neither, in response to our first
submissions or to our subsequent submissions in
reply, did they seek to have the case reopened.
Now, in our submission, when dealing with the balance, which we accept has to be struck, between
the desirability of litigation being finalized when
this Court hands down its decision and concern for
public policy, there are no substantial issues of
public policy raised in favour of reopening and it
is, on any view, a case in which finality is highly
desirable.
So, our submissions are that this is just not

one of that very exceptional class of cases in
which a matter should be reopened after this Court
has delivered judgment. If the Court pleases.

MASON CJ: Yes, thank you.

How long is your reply going to

take, Mr Burnside?

MR BURNSIDE:

I hope to be able to limit it to five minutes

or so, Your Honour.

MASON CJ: Yes, very well.

MR BURNSIDE:

If the Court pleases, can I start by observing

that a great deal of the material to which
Dr Emmerson has taken the Court is directed to
demonstrate the proposition that at various stages,
other than in this Court, various arguments have
been advanced. That may be relevant to the
question whether the appellants should now be
allowed to advance arguments relating to the issue
on which the judgment has turned. It is not, in

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our submission, in the least way helpful on the
proposition of whether we were given an opportunity
to address on the crucial issue in this Court, and
the matter is made more important by reference to
the fact that, as has emerged in debate, separating
the strands of arguments couched in similar
language, but with different import, is a very
difficult thing. And it can hardly be a fair
opportunity for a party to address this Court to
say, "Well, several years ago, at first instance,
in anticipation of our case, counsel said this or
that or the other". That is not the way in which,
in our submission, this Court can be expected
properly to decide matters.
The question, in our submission, must be

whether we have had a proper opportunity to address
this Court on the issues on which the case has
finally turned. It is significant in that
connection, we say, that our learned friend has not
identified for this Court a submission of the clear
sort that Your Honour Justice Deane identified and
which would, if made in this Court, justify the
assertion that the submission had been raised.
It is also significant, in our submission,

that many of the passages of transcript in the Full
Federal Court and at first instance, are passages
that have never been put before this Court. They

certainly were not part of the appeal book. The

before this Court were passages extracted from the

only passages of transcript of argument placed the supplementary submissions made on behalf of the
appellants. That selection of material did not

include many of the passages to which the Court has been taken this afternoon. Once again, we say that
is a wholly inappropriate way in which to raise
issues and advance arguments on which this Court is
expected to decide exceedingly difficult questions.

GAUDRON J:

Mr Burnside, could I perhaps just take you to

page 39 of the transcript in this Court, an answer
by Mr Emmerson to Justice Deane, the very top of

the page. It is clearly there put in answer to
Justice Deane that the 127-bit sequence is part of
the program and, indeed, what is copied.

MR BURNSIDE: But, Your Honour, if we may say, with respect,

that is only part of the question.

GAUDRON J:	Once it is put that that is part of the program and that is what is copied, that is the appellants'
case, as it were; it is a matter for you
thereafter.

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MR BURNSIDE: With respect, no.

One has to understand that

what is being said there is not the 127 states, the

sequence, instructions. To say that that are part
of the program is merely to identify that they
exist in some form where there is data or
instructions in the listing of WIDGET.C which was
identified, and to say that they were copied is no
more than to state the obvious that a similar

sequence occurs in the EPROM. It is a different
matter, in our submission, to say a mere copying of
127 bits is sufficient to amount to an infringement
of copyright, and if we may say, with respect,
Your Honour Justice Deane correctly identified the
way in which one can test whether that proposition
was clearly put, and the way to test it is to ask
whether, for example, writing down the 127 states,
without more, would suffice to constitute
infringement. That submission has not even been
put today, as we understand it, and certainly no
passage has been identified for the Court in which
such a submission was put.
The difficulty with taking a single passage

like this, in isolation from the rest, is that it
does not allow for the question to be understood in
the context of the submissions being made and the
context of the submissions being made is, we would
say, all pervading, but is highlighted by the fact
that at page 58 in the transcript of argument
before this Court, the second-last paragraph, when
complaining about what Mr Kelly did, Dr Emmerson
said he:
had access to the program in the lock and
because in the nature of things the program in
the lock must be, for what we say are relevant purposes, the same as the relevant part of the
program in the computer, he had access to
that.
Now, I remind the Court of the submission that

we started with; that the thrust of the appellant's
case at all times, certainly in this Court, was
that the thing exists in three places and the thing
has been copied and the thing being referred to

always was the program. An element of it in one or
other implementation is a look-up table, although
that is not a necessary element; because SP TEST.C did not have a look-up table, the AutoCAD lock did
not have a look-up table. Another aspect of the
context that is essential to bear in mind, we would
submit, is the fact that the order sought from this
Court could not be justified by the argument which
is now sought to be relied upon
Now, that being the case, one asks, "Well, would the course of debate have been any different

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if an application had been made for a different
order; for an order simply restraining infringement of the 127 bits?" In our submission, the answer is
quite plain. It would have raised a whole range of different arguments of the sort that were canvassed
this morning, but which were not canvassed when the
matter was before this Court earlier.
It is not sufficient, in our submission, to

point to isolated fragments where a hint of the
argument can be divined in order to try and prop up
the proposition that the argument was squarely
raised before, because the question, in our
submission, is whether we had a fair opportunity to
be heard on the point and, for a passing reference
like that to constitute a fair opportunity to be
heard on a point which is so novel and so
difficult, in our submission, it is simply not
enough, and it would be - we would submit with
respect that no fair reading of what was put before
this Court could be said to have put us on notice
that the case to be met was simply that by copying,
reproducing in any form, in writing, in EPROM, in
any other material form, the 127 ones and zeros,
that that along was sufficient to constitute an
infringement of copyright.
That was not the case, in our submission,

which was ever made against us and that is not a
case which we have had an opportunity to meet, and
we would say, as we said earlier, that because we
have not had an opportunity to meet it, because all
of the complicated and difficult arguments to which
it gives rise have not been aired, it is not
surprising that the Court reached a decision which
we would say, with respect, is wrong and made per
incuriam.
Our learned friend said that, for example,

indirect copying, the causal nexus was always at

issue. He read to the Court passages of argument

at first instance in which it was said that it did not matter whether WIDGET.C or the lock came first. In one sense it may not matter unless the relevant
infringement is said to consist in copying the
127-bit sequence and nothing else.
Then it matters overwhelmingly, and it matters

because the test of substantiality where an
isolated chunk of something has been taken must
depend largely on the originality of the thing

taken. The thing taken was always identified, we
submit, as the part of WIDGET.C that does the
relevant checking. It was never identified as the
look-up table and the look-up table alone.

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If it had been identified that way, then the

originality of the look-up table would have been of
the first importance, but Dr Emmerson said in the
passage referred to that it did not matter. That
simply cannot sit with the argument which is now
sought to be relied upon.
In the references that Dr Emmerson made to our

supplementary submissions, he drew attention to a couple of the submissions we made. I want to say
two things about the supplementary submissions:
one of them goes to the circumstances in which they
were called for, which we would say are relevant.
The affidavit in support of this application points
out that our instructing solicitor first received
the letter of the Registrar and then, on
17 December, learnt from the solicitors for
Autodesk that they intended to make supplementary
submissions. At the same time, he learnt from the
Registrar that the failure of the parties to make
supplementary submissions was holding up the
judgment.
The next day we received a copy of the

submissions which were relied upon by the
appellants. Those submissions, in our submission,
do not either directly or by the passages they
refer to raise the argument on which the matter has
turned; on the contrary, they identify similarity
by reference to the way in which the devices do
their jobs. But more than that, that supplementary
submission was received on the second-last working
day of the term before Christmas and it is
significant in an area as difficult as this,
responding to a letter with the inherent
difficulties which the letter had, it is a
difficult position for a party to be placed in.
You are told the failure to respond is holding

things up and there is two days to go before the
Christmas break. It is true to say, in theory, we

could have stood our ground and said, "No
submission is required, you shouldn't have sent the

submission you did". Instead the course was
followed of making the submission which was made
and it contains in its first paragraph - this is at
page 34 of the application book - a simple
statement of what the respondents considered was
the case made by Autodesk, namely:
that the logic of Widget.Chad been reproduced
in the Autokey Lock.

Now, clearly, what follows from this was not
directed to a submission of the sort which it is
now suggested had been raised at first instance or

in a somewhat diluted form in the Full Court. If

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this is the opportunity which we were given to meet
the question on which the judgment has turned we
would say, with respect, it is a wholly inadequate
opportunity and it is regrettable that the matter
arose the way it did but, in our submission, the
Court could not see this as a fair opportunity to
meet the point on which the matter has turned.
Can I also make one other point in relation to

the responses. On 23 January, the appellants filed
a further supplementary submission, that is at
page 37 of the application book.
It may or may not be of any significance that

both my learned junior and myself were on holidays
at the time the submission was received, and we did not return to our holidays as a result of its being received. But it is important to note that at
page 38, even as late as 23 January, what the
appellants said - it is the first couple of
sentences of paragraph 3 in response to our
submissions 3 and 4:
It is not correct to say that the look up table in Widget.C is data rather than instructions.

I think it is fair to say that is the first mention of that proposition before this Court. It says:
In combination with the rest of Widget.Cit
determines the response of the programme to
incoming data.

If ever there was an opportunity for the appellants
to advance a submission that the 127-bit sequence
by itself had been infringed, that would seem to be ~he place, and yet still, consistently with the way the argument was advanced before this Court and
previously, they rely on the combination of the
look-up table together with the rest of the

relevant part of WIDGET.C.

BRENNAN J: That is to establish it as a program.

MR BURNSIDE:

To establish it as a program but also, we

would submit, to say that whether or not it
operates in combination with other bits of

instructions, it is enough simply to copy that. We
submit that it is a radical step to take to say
that taking data from a program without more can be
an infringement of copyright.
If such a submission were to be made, it

should be made distinctly because it gives rise to
a lot of very difficult arguments, including the
sorts of policy arguments that I referred to this

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morning. If it was desired to put a clear
submission of the sort articulated by
Justice Deane, this would seem to be an appropriate
place to do it, but even then -

DAWSON J: But they are replying to your paragraphs 3 and 4

where you say the look-up table is data.

MR BURNSIDE:	Yes.
DAWSON J: They are just answering it.	They are saying it

is not data; it is part of the instructions, and
therefore part of the program. That is clear
enough, is it not?

MR BURNSIDE:

The difficulty, I suppose, Your Honour, is

whether it can be said that what we were doing was
advancing a submission to the contrary of the point

on which the decision has turned. The plain fact
was we were not.

DAWSON J:	You are, are you not? In paragraph 3 you are saying, if not expressly, implicitly, the look-up
table cannot be part of the program because it is data rather than instructions. That is plain
enough.
MR BURNSIDE:	Yes, but that leaves to one side, with

respect, the question of whether copying data alone
can constitute an infringement of copyright that
subsists in a program.

DAWSON J: But no one is suggesting that copying data can be

an infringement of copyright. What they are saying
is: on the one hand you are saying this is data;

on the other hand they are saying it is not. That
is the argument.

MR BURNSIDE: Well, with respect, Your Honour, we would say

that is merely the starting point of the argument,
because as we understand the decision, it appears

to say that if you take something from a program
where that something is data, then reproducing that
data is an infringement of copyright and it matters
not, it would seem - - -

DAWSON J: That is exactly what is not being said; what is

being said is that the data, if it is data, forms
part of the instructions and that is what is
important and that is made plain.

MR BURNSIDE:

Then that, if I may say with respect,

Your Honour, raises simply a variant of the same
argument, which is to say, and it is the third
question that we raised in the affidavit, can you
attract copyright protection for data, merely by
embedding it in a program in such a way that

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program instructions properly so called will have

reference to that data. Now, it is a phenomenon

which is perfectly common. Every non-trivial
program will have data embedded in it to a greater
or less degree.

DAWSON J:

No doubt it is, but what was decided was that the

look-up table was part of the instructions and that
makes it plain that it was part of the program and
that is the matter which is addressed in
paragraphs 3 and 4 of your submissions and the
answer to those submissions.

MR BURNSIDE:

Yes.

Your Honour, the answer to the - - -

DAWSON J:

The issue is plain enough.

MR BURNSIDE: Well, with respect, Your Honour, we say it is

merely an introduction to the issue, or it is a
question that would arise if the issue on which the
matter has turned had been debated properly.

DAWSON J: Well, if you look at your paragraph 3, it can

hardly be said that you did not realize the danger
that the look-up table may be said to be part of
the instructions, because you addressed it.

MR BURNSIDE:

The question really is, Your Honour, whether

that - - -

DAWSON J: Well, you do address that issue, do you not?

MR BURNSIDE:

The issue we address, Your Honour, is whether

the 127-bit sequence is data or instructions. We
say that - - -

DAWSON J:

It is the question of the look-up table.

You

say:
The look-up table in WIDGET.C is data rather
than instructions.

MR BURNSIDE:

Yes.

DAWSON J: And you do that because if it were part of the

instructions, it could be part of a computer
program, obviously.

MR BURNSIDE: That depends, Your Honour, on the meaning of

the definition of computer program. A computer
program is a set of instructions with or without
accompanying information.

DAWSON J:

Why did you want to say, in that submission, that

the look-up table is data rather than instructions?
What was the point of saying that?

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MR BURNSIDE:

Your Honour, we were responding to a

submission which we did not entirely
understand - - -

DAWSON J: Maybe you did, but what was the point in that

assertion there? What was the point of making it?

MR BURNSIDE:

The point, Your Honour, is that if the

127 bits are instructions and the instructions or
rather the same bits are found in our device, then
one has two sets of instructions which are said to
be the same and on one view, without dealing with
all the other questions of triviality and the like
and originality, then you would have the starting
point of an argument that what is contained in the
EPROM is also a computer program which matches part
or a copy of a part of the computer program in
suit.
That is really the point of it and we say,

with respect, that data alone does not attract
copyright protection by being embedded as data
within a program and if you derive the same data by
observing the AutoCAD ·lock which does not contain
the look-up table, as it happens, if you derive the
same data that cannot be said to be an infringement
of copyright in anything.
Now, we would submit, with respect, that

everything we say in the supplementary submission
of 20 December has to be read in light of the
sentence in paragraph 1 that Autodesk's case was
that the logic of WIDGIT.C had been reproduced.
That was the point they were trying to make, they
said "There is a program, it is found in WIDGET.C, it is found in the AutoCAD lock, and we say it has
been copied into the Autokey". That is the
proposition that we were meeting, and we say as
part of the answer to that, "The Autokey does not
have a program in it, what it contains is data, and
it is data whether it is there or in the look-up
table in WIDGET.C". But, Your Honour, with

respect, we would say it is of the utmost
significance that the sorts of matters that we
canvassed this morning have never before been
canvassed in this Court in this case.

MASON CJ:

You have made that submission before.

MR BURNSIDE:

Yes.

My learned friend said, in passing, that

I had given some evidence from the bar table, it
was a reference I think to the existence of
interoperable systems and the difficulties which
will be produced for the computer industry

generally if the present decision stands. We did
seek to put in evidence before the Court, on the
question of the significance of the decision,

Autodesk(3)

5/8/92

because we do see it as a relevant part of the
considerations of public policy.
What we put before the Court were two exhibits to the affidavit of Mr Brewin. They are
exhibits PHB14 and PHBlS. However, the appellants
objected to those exhibits being reproduced in the
application book and it is for that reason only
that they are not presently before the Court
although, of course, the original exhibits are

before the Court. We would press the reception of
those exhibits and we have copies available for

distribution to the Court if it is useful. We
thought, perhaps wrongly, that the statements about
the existence of interoperable systems and the
impact of this decision on such systems would be
sufficient if made from the bar table but we would
press for the reception of those documents with

respect. We say they are plainly relevant and the
fact that they have not been reproduced in the
application book does not mean that they are not
before the Court. So, we would ask the Court to
receive those copies, at least for the convenience of having them available. I do not intend to take the Court to the documents.

MASON CJ:

The situation, Mr Burnside, is that the Court

will receive the documents but, of course, we are
not in a position to indicate, without looking
closely at the documents, whether the Court will
act upon them.

MR BURNSIDE:

I understand that, Your Honour.

I will have

copies of those handed up. All I need do is
indicate that each of them, especially PHBlS, set
out in detail the relevant characteristics of
inter-operable systems and the difficulties which
arise in the event that it is the law of this
country that by observing what input is required
for a program and by embedding that input in
another device, one thereby infringes copyright in
the event that that is stored as data in the first

device. That is the difficulty to which the
decision gives rise, in our submission. Unless
there are any questions which we have left unclear,
those are our submissions in reply.

MASON CJ: Mr Burnside, there is one outstanding matter that

I should identify, and that is of course the Court
has not yet made consequential orders. Your
opponents of course seek consequential orders, in
particular an injunction, in terms of the
injunction that they sought in the notice of

appeal. Of course, during the course of argument
today there has been reference to what would be an
appropriate injunction, having regard to the
conclusion that the Court reached in its judgment.

Autodesk(3)

5/8/92

I was going to ask you this question: on the

assumption that your application is dismissed - and
I stress that necessarily it is an assumption at this stage - what is your attitude to the
injunction for relief which the respondent to this application seeks? I do not want you to debate it
at length at this stage, but I just want to know
what your attitude is.

MR BURNSIDE:

Our attitude is, Your Honour, that the decision of the Court simply does not justify the

injunction which is sought, and if a different form

of injunction is to be sought, then it is a matter
for the appellants to seek a different form of
relief from the Court. And we would say in the

ordinary way of things, one ought to be entitled to

debate that. If I may be realistic about it, if

the Court decided ultimately that it wished to stay
with the decision so far made and wished to grant

effective relief consonant with that decision,

clearly we would co-operate in the formulation of

an appropriate order.

I have to say that is a

result which we would obviously greet with great

dismay.

MASON CJ:

I stressed, in asking you the question at this

stage, Mr Burnside, I am not indicating in any way
a view about the outcome of the present case, but I
was just seeking, as it were, to avoid the
hypothetical possibility in the future that the
parties might have to come back to the Court again.

MR BURNSIDE:

I understand, and may I be an opportunist,

Your Honour, and say the need for the appellants to
apply for a variation of the relief sought perhaps
makes our point as eloquently as anything that I
could have said today.

MASON CJ: Yes, I know, you made that point earlier during

the course of the day.

MR BURNSIDE: It was a bit of opportunism. Unless there are

any other matters on which I can help the Court,
those are our submissions.

MASON CJ: Thank you, Mr Burnside. The Court will consider

its decision in this matter.

AT 4.58 PM THE MATTER WAS ADJOURNED SINE DIE

Autodesk(3)

100

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[1992] HCATrans 220

Key Legal Topics

Areas of Law

Civil Procedure

Intellectual Property

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Res Judicata

Statutory Construction

which set this whole litigation in train.	By the
application the applicant's claim an order
restraining the respondents - and I go to
paragraph l(a) - from:

logical steps to work out the basic idea.	The
particular program chosen has two aspects:

analysis, take him to the goal he was after?"	We
say not only - - -

substantial part of WIDGET.C.	Now, I wanted to
take the Court -

evidence support it.	Your Honour, as we recall it,
agreed with that proposition. Nowhere has it ever

uses the 127 bits it receives from the lock.	We do
know that it compares it - it compares each

why is that not a set of instructions?	I mean,
that is all it is, is it not?

the 127 bits is a substantial part of WIDGET.C.	In
our submission, it can be demonstrated beyond
argument that the AutoCAD lock was brought into
existence first and that the look-up table in

derived the 127-bit sequence.	It did not sit down
and work it out for itself.	It copied the output
of the AutoCAD lock.

practical purposes, identical. It does not follow	High Court, the two photographs will be, for all immediately after me and takes a photograph of the	that one photograph is a copy of the other. If two
things are copied from the same source, then one
has to look at the originality and copyright
protection of the source.

qualify as a substantial part of WIDGET.C.	Now, of
course, it is an essential part of it.

instructions.	We would say any person capable of
doing that would say that he was sending data.	I
do not know whether rejecting the starting point prevents me from dealing with the rest of the question.

either of them is simple;	I just think they are
both wrong.	The difficulty is, Your Honour, that

table in WIDGET.C is data, not instructions.	The
reference in Mr Ford's evidence is that the
contents of the EPROM is data, not instructions.	I
should say that my recollection is that there are other references to the same effect but those are
two which, in our submission, are probably
sufficient for the purpose.
Before I continue with the submission that I was deflected from, can I hand up to the Court a
document which perhaps more succinctly and, I hope,

to the appeal, but it also involves a question of major public interest to the computer industry in	involves an injustice to the immediate respondents public policy questions which are inevitably raised
by an application of this sort.

restated the way in which they made their case.	It
is at pages 231 to 249 of the Federal Court
transcript, which is part of exhibit PHBl, in the
second volume of that exhibit. It is very
interesting that in the discussion at that part of the transcript Mr Justice Beaumont, and to some

SHEPPARD J:	I follow the second way, or at
least I think I do.	I am not sure whether I
do, but I think I do.
DR EMMERSON:	So I just did not want to let

lock with WIDGET.C?".	That was the origin of that
discussion.	The point we simply make - and let me

were never corrected on that misapprehension.	The
whole of the hearing in this Court proceeded on
that misapprehension of ours, if it is a
misapprehension. It was never corrected by

the belief that that was an argument never put.	It
was certainly not put to this Court.	It has not

was one of the matters in issue?	We say that it
was in issue at every stage.	Now, the reason for

not a submission that could be put.	It was not
open to us and so on.	The fact is, the notion of

another.	In our computer there is a look-up table
of 127 units with a wrap-around feature.	The mere
reproduction of that in any material form
constituted an infringement of copyright"?

submissions at first instance.	He says, in the
second paragraph on that page:

resemblance between the look-up tables.	Then he
goes on to say:

We do not put it in precisely that form.	What
we say is Widget.C is a programme and a
substantial part of that programmme is

HIS HONOUR:	Compressed encryptically?
DR EMMERSON:	Compressed and encrypted,

up table was the product of a program.	The
look up table originated from Mr Kelly's
observation of the output -

course, the encrypting point. over the next passage and the issue of whether or He develops that	not it is a program is returned to at the bottom of
page 80 and the top of page 81 where my learned
friend says:

that the passage in Widget C to which I have	referred the court does in truth contain a
look-up table, which does in truth contain all
127 numbers of the 127 state machine, and
contains them in the right order.