Is There Really An Idea/Expression Dichotomy In Copyright?
from the it's-difficult-to-see dept
Copyright system defenders often trot out the commonly accepted wisdom that copyright does not protect "ideas" and that there's an important "idea/expression" dichotomy, where it's only the specific expression that's protected, not the ideas. However, the reality is that both individuals and courts seem to have a pretty difficult time distinguishing between the two, and always have. While perhaps there's some platonic ideal where it's easy to tell the difference between an idea and the expression of that idea, it's much harder in practice. Recent studies have shown how notoriously difficult this distinction is in practice, leading to serious questions about how copyright violates the First Amendment.The latest example of this is the ruling banning the publication of the "modern" sequel to The Catcher in the Rye. If there really were a distinction between the idea and the expression, then a sequel would never be seen as infringing, unless it used significant text directly from the original. Yet, in this case, the ban on publication is making some wonder where that mythical idea/expression dichotomy really exists:
First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.I'm sure we'll get angry comments from some of the copyright defenders who are always quick to chide, but I'm curious how they can use the so-called idea/expression dichotomy as a defense against a First Amendment violation, when that dichotomy doesn't really seem to exist. Copyright system defenders, for years, have relied on the whole "idea/expression" split to explain away how copyright law can be compatible with the First Amendment's insistence that "no law" may be passed that inhibits freedom of speech. If you realize that said split doesn't really exist (or, at the very least, is not enforced by the courts), you have a big, big constitutional problem.
For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of "My name is Bond...James Bond." or "Shaken...not stirred.", I still would not be able to create it, because Ian Flemming's estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.
I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels.
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Filed Under: catcher in the rye, copyright, expression, first amendment, idea, jd salinger
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Basically, you have gone off on a wonderful theoretical thing that can't be properly explained to you on a web board. perhaps if you took the time to go take law (with a focus on constitutional law) you might start to understand the differences.
If nothing else, this post sort of explains why you often have a weird look on things, because you just don't seem to consider the whole picture, just the parts you like on a given day.
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Very convincing.
Either way, I've spent the last few months reading a bunch of research papers and an entire book on how copyright appears to conflict with the First Amendment. It appears that an awful lot of lawyers agree. To make it out like I'm off in some looney land and making this all up isn't really supported by the amount of published work that suggests otherwise.
you have gone off on a wonderful theoretical thing that can't be properly explained to you on a web board.
I can only interpret that to mean "I can't really respond, so I'm going to pretend that it's the forum that's the problem."
Again, if you have something to actually respond to, respond to the points. If you don't and just insult me personally, we can assume you either haven't really thought this through or you don't have a real argument.
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Numerous justices have done so in the obiter dicta of numerous cases.
Perhaps If you are worried about Mike taking the law out of context perhaps some relevance to case law may expand your understanding?
Then after reading these perhaps you will be more informed to respond to Mike? in particular may i draw your attention to "Exposing and Opposing Censorship: Backfire Dynamics in freedom-of-speech struggles" by Brian Martin- found in the Journalism Review also worth mentioning is First Amendment Perspective on the "Idea/Expression Dichotomy and Copyright in a Work's Total Concept and Feel" in the Emmory Law Journal.
Perhaps such reading may enhance understanding, I also understand there are substantial merit to your points- but you really do need to back them up with something more concrete to support your claim
Regards Elizabeth
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It isn't an attempt to insult you personally, just to point out the shortcomings in this sort of thing. The published works you are a talking about no doubt come from your usual collection of idols, not exactly middle of the road thinkers, no?
"I can only interpret that to mean "I can't really respond, so I'm going to pretend that it's the forum that's the problem.""
Nope, it just means that the answer is something you and I would both have to spend a ton of time in school to truly understand, nothing something that can be written off with a single witty paragraph or a dismissive comment in a blue box.
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But you are suggesting years in law school are necessary to get a feeling for what is right.
I believe that every citizen can have an opinion as to how ideas (IP) should be locked up, whether they have their JD or not. When existing laws or practices bump up against what we think should be first amendment rights, citizens need to start a discussion, and questioning the existing laws.
Interpreting the law may require legal training, but having an opinion on what is right and wrong probably doesn't.
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> first amendment rights, from speeding to income taxes.
Well, please do explain how speed limit laws (or the IRS code) violates the 1st Amendment, either in context or out of it.
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Speakers can make money from speaking without copyright.
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Where I have serious reservations about the above article is its reliance on commentary appearing on the blog Against Monopoly. I follow that blog and, quite frankly, am continuously amazed at some of the truly off-the-wall things that are stated. That said, I would be remiss if I did not mention that the addition of a "derivative works" right so many years ago in my opinion oftentimes extends the original boundaries of the "idea vs. expression" dichotomy into areas where the line of demarcation noted above is not at all obvious...even to those of us who have actively practiced with the realm of copyright law and represented parties on both sides of the aisle. Fortunately for me and my clients, I have not had to deal with situations where the matter at issue even closely approached the line of demarcation.
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And that, to me, represents a very big problem. Because what happens is that line continually gets pushed further and further in one direction. If you don't think that's true, you just need to look at the history of both copyright and patent law.
Where I have serious reservations about the above article is its reliance on commentary appearing on the blog Against Monopoly.
Fascinating. That's a really great way to dismiss an interesting intellectual point that you disagree with, but don't have anything to respond with: just say you don't like the *publication* and you get to ignore all the points raised!
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AM is, in general, a quasi-libertarian anti-IP blog that has quite rapidly turned into one where broad generalizations, and not thoughful discourse, have come to rule the day (witness, merely by way of one example, Mr. Kinsella's recent diatribe against the federal judiciary, something I found quite troubling given that he is, after all, an attorney and officer of the court). The article you quote continues this disappointing trend. At least Boldrin and Levine, in their publication "Against Monopoly", made an effort to bolster their thesis with what they deemed to be an objective analysis of data they collected. The article from which you quote makes no attempt to do so. It is a collection of nothing more than generalized statements devoid of factual support, something that if done here by persons with views contrary to yours almost invariably and immediately earns a critical rebuke.
It would have been beneficial had you noted that I did add some commentary concerning that portion of copyright law pertaining to "derivative works". This right is more amorphous than traditional copying and distribution, and it can be argued with some degree of justification that it serves to alter the original contours of copyright law as embodied in the Constitution and The Copyright Act of 1790. Of course, similar arguments can be made in justification of this rignt that was added by later legislation.
If criticism of a blog that repeatedly presents unsupported diatribes is something you find "fascinating", and if comments by others you feel do not rise to the level of your standard for comment strike you as "funny", then you must constantly be amused by the vast majority of comments made in response to your articles. For example, comments like "F*** the RIAA" must leave you in stitches rolling around on the floor.
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I point this out only to show that the law for derivative works makes no sense.
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It would be helpful if you defined "dichotomy" more precisely. Perhaps you mean a clear, unambiguous split that can be determined for every case by any reasonable person, without the involvement of the courts. Perhaps you just mean "general distinction." I think you probably mean something like the former.
There are many examples in the law where a bright and shining line doesn't exist, and yes, sometimes courts have to get involved. And like any human system, the courts sometimes get it wrong, or are inconsistent with each other (although they try at least for consistency). Obscenity. Negligence. Disturbing the peace. The idea/expression dichotomy is just as "mythical" as the standard of due care. There's stuff that's clearly on one side or the other, and there's a gray area in the middle. The law, and society, seem generally comfortable with this - even if you are not.
If you have suggestions for how to put a finer point on the pencil and draw down the gray area between idea and expression, we're all ears. Where would you draw the line? In your perfect world, would it be OK to make a movie of a book without permission from the author? Would it be OK to market and sell a translation of someone else's book without permission? A sequel? Would it be OK to paraphrase every paragraph of a book? Every sentence?
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follow the money
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Read Feist Publications
http://supreme.justia.com/us/499/340/case.html
Feist essentially says that you have every right in the world to reproduce databases made up of facts, in their entirety. It is the main reason why many sites (with databases) have resorted to requiring you to agree to a license before you access the raw data.
Feist says you can download a real estate listing database and redistribute the data in it, with the proviso that things like prose descriptions of the property might constitute original expression. But fields like "Rooms" "Baths" "Acreage" "Address" etc. are fair game -- and what's to stop you from parsing prose descriptions and extracting factual elements from them?
It was right after Feist Publications that WIPO freaked out and quickly promulgated several draconian treaties, including the WIPO Copyright Treaty, for which the DMCA is the USA's "enabling legislation" -- they also tried, so far unsuccessfully, to pass a database treaty. All as an attempt to trump the American copyright tradition.
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He didn't insult Mike personally (this time); he just dismissed the opinion of everyone that doesn't agree with him.
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The problem with copyright...
To me (a moron in a hurry?), it is apparent that general implementation of copyright covers the ideas behind the expression. The expression itself is little more than an example of the idea which is covered under present law.
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And what really bothers me is why we wouldn't want the market to address these issues. If someone creates a crappy derivative work it seems to me that people will vote with their dollars. Why not let the market reward those that execute best? Isn't that in the best interest of the consumer?
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As for the Harry Potter lexicon, I thought that court ruling was pretty wrongheaded.
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No monopoly on ideas.
I disagree with that statement. Flemming has a monopoly on the NAME James Bond (via both trademark and copyright). If you create a better Bond story and name the character Napoleon Solo or Jason Bourne or Austin Powers, no one can stop you.
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Re: No monopoly on ideas.
I picture a totally empty field, with a single section of fencing on it. There is Mike, stuck against that fence and unable to go around it, complaining like hell that we should take down the fence or lower it to the level it was at 200 years ago because he is sure he could climb over it at that height.
Why not just go around it? Want to write a spy movie or book? Just don't call him James Bond, and don't make him 007. Your freedom of expression was not lost, unless of course you want to keep banging up against the fence.
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Mike claims that the "idea" of James Bond is protected. Wait a second. Other people have written books with the name James Bond used as a character. It is possible that the character was a spy (I have seen James Bond as a character in a book other than the Ian Fleming series and licensed derivatives twice, I believe). However, when the character works for someone named M who has a secretary named Moneypenny, has a lab person named Q, uses an array of gadgets, and drinks his martinis shaken, not stirred, we have moved waaaayyyyyyy past "idea" into expression.
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Re: No monopoly on ideas.
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The "idea" is this: a suave super-spy and lady's man, supported by a semi-secret government organization that builds cool toys and assists that spy in thwarting larger-than-life criminals who threaten the entire world. This idea is not protected by copyright, and anyone can write a story using that idea.
James Bond is a specific expression of that idea and is, therefore, protected.
Writing "another James Bond" story is, in fact, copying someone's specific expression. Writing a story about some other suave super-spy and lady's man (etc.), is creating a new expression of the idea.
So I don't agree with the argument presented here, as I understand it. What am I missing?
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That being said, ownership of the particular expression isn't absolute. If I have a larger point to make and need to use Bond to make it, that's where fair use comes in. I can't just throw Bond into my work to make money off what Fleming created.
And of course copyright goes against a purist's view of the 1st amendment, but you can't yell fire in a crowded building nor incite a riot.
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More importantly, why does someone think they should be able to ride the coat tails of the success of another? Harry Potter is initially successful so thousands of others should be able to piggy back off that success, quickly diluting the value of Harry Potter and jading potential buyers who have heard that Harry Potter is garbage (because the vast majority of the imitators will be garbage) - when there remain seven books that might otherwise have been very popular had the garbage not gotten in the way.
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There is nothing "orgininal" about Harry Potter anyways. Did JK invent a single concept that is contained in her books? No, everything existed in prior works.
Trying to protect her "content" is like saying that you need protection after you created a culinary masterpiece by adding Dijon mustard to your McDonald' hamburger.
Furthermore your argument about dilution is absurd and reeks of someone who doesn't believe that there is any freedom in the market place. By your judgment whenever anyone copies anything it takes away from the original. I guess no-one should be reading J.R. Tolkien then?
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"Trying to protect her "content" is like saying that you need protection after you created a culinary masterpiece by adding Dijon mustard to your McDonald' hamburger."
Very different game here - you take a McBurger and stick something on it, it isn't new, just an add on. Make your own burger, add dijon sauce for your burger, and call it the Reedijon Burger, and off you go. You aren't stopped from expressing your burgerness, you just can't go and buy your burgers from MickeyDs, stick a new label on them, and call it new.
"I think you are very confused about the whole process of creation in general. Riding on the shirttails is why were are here today. The fact that you can't recognize this shows your buying into a rhetoric invented by IP right holders and that you are ignoring thousands of years of human culture."
Riding on shirt tails doesn't mean "running in the same rut". Moby Dick is a great fish story. It didn't stop Benchley from writing Jaws or from Discover Channel running "the deadliest catch" or anything like that. Like I said before, at most the restrictions granted by copyright on books is a single section of fence in an empty field. Don't get hung up on the single fence, just step a couple of inches to either side and keep going, it's a wide open field.
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Actually, you can. That gets done all the time in the auto industry. People buy corvettes, or whatever, soup them up and resell them.
That's tolerated because a corvette is sold either way. The "Intellectual Property" interests get their panties in a twist because it doesn't work that way for things *that aren't actual property.*
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"People buy corvettes, or whatever, soup them up and resell them."
Yes, but they still sell them as corvettes. Ford isn't buying a whack of corvettes and slapping ford badges on them.
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I like that. Very good.
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So you're saying that if I write a Bond inspired novel, I SHOULD use Bond as a character?
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Circular reasoning, thy name is Anonymous Coward.
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True, but done under license or through commercial agreements. Dell pays Fujitsu a price that includes the rights to rebrand the product as a "dell". They pay for the name slapping rights, as it were.
Sure, and there's incentive to do that-- Taking raw materials and adding value by manufacturing a product which the market will pay for works good for all parties. However, in manufacturing, it doesn't cost much more to make 100 pieces than it does to make 1 piece because the equipment is setup, and the only cost is human capital.
Thusly, Fujitsu could setup an assembly line for a "Widget 9000", with an expected 5% profit for it's own branded equipment.
Say, Dell wants a Widget 9000 too, but due to layoffs, mergers, and poor investments, lost most of the inhouse expertise to accomplish what Fujitsu already setup. Suddenly, approaching Fujitsu and paying them a 10% premium for Fujitsu to silkscreen a Dell logo on the Widget 9000 makes sense to Dell, because it can't acquire the outside expertise to make the Widget 9000. In the end, Dell is able to finance this using it's brand equity.
Over time, this can also have a tendency to artificially inflate the wholesale price of the product, and also re-baseline quality levels for the entire industry. This is especially true if like other companies in the space also decide to use Fujitsu as an OEM.
I think this is what happened when Michael Dell took a break from Dell Computer. The original supply chain strategy Dell was built upon was broken, partially due perhaps, to most manufacturing being sent overseas, with profit being a major motivator.
Servicability and perceived quality of the products also appeared to falter slightly which also could be seen as a contributing factor to losses in brand equity. In 2004, when Mr. Dell stepped down, the company was valued at $68.2B. Today, that number is at $25.3B market cap. Meanwhile Fujitsu stayed relatively flat.
Contrast this same period to a company which focuses on maintaining control of it's supply chain and manufacturing and you'll see the value of owning as many pieces to the supply chain as possible. There's only one company who publicity touts it's control over the supply chain in the Computer Assembly space, Apple, whose $21B market cap in 2004 is valued at $124B today. Of course, Millions of iPod sales and advances in it's OS contributed to this also. But, maintaining control over the supply chain management is key in those product line successes also.
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But all this changes when you're dealing with Copyright-- Who could forget the late 1990s when copied plots seemed to be a staple. Dante's Peak vs Volcano. Deep Impact vs Armageddon. Truman Show vs EDtv. A Bugs Life vs Antz. The Thin Red Line vs. Saving Private Ryan.
Mind you, all these films came out within a few months of each other, which got me thinking to reasons why these films were created and why there wasn't a big legal stink about it. I suppose justification as "art" isn't the real reason. Profit, and lots of it, and as long as it benefits the Big 5 Hollywood Studios, everything seems to get the nod.
So considering the problems with studios seemingly copying pitched scripts seems to have created a culture of secrecy between the studios. It's possible that the same practice occurs in the Music Biz too. Also, because of the creative nature of copyright, and lack of "raw materials", it doesn't make sense to intervene until the product is completed and on store shelves, because until it has shipped units, no royalties can be collected. (See RIM vs NTP Patent Lawsuit)
Until Copyright and IP is no longer a method used to economically exploit people, it will only be used as a tool to economically exploit people.
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No, it is because while each of the films you listed has similarities (volcanos, end of world, reality, or insects) they are each distinct and unique expressions of an idea. This is where you fall into a trap, trying to say things are the same, when in fact they are completely different, except for their overall category.
By your logic, I Love Lucy and M*A*S*H are similar enough that the I Love Lucy people should have sued. After all, they are both TV shows, both comedies, both dependant on both visual and aural comedy, both shown on TV, and both having stars, supporting characters, and guest stars.
If you seek to find similarities, you always can. But you can also almost always find the difference that make them unique speech, and thus non-infringing.
"Until Copyright and IP is no longer a method used to economically exploit people, it will only be used as a tool to economically exploit people."
But it isn't. For the most part, the people paying want the product more than they want their money. Nobody has a gun to their heads.
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Use them wisely.
http://img.chan4chan.com/img/2009-02-21/1235225809851.jpg
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Legal training is not so much about learning the law (which is easy--just memorization, yeah?), but rather learning how laws interact with each other (which is not--involving analysis, judgment, precedent, public policy, etc. etc.). In fact, if this were a medicine blog, you'd be committing pharmocological suicide with your posts nearly every day.
For example, you look at a few cases involving the idea/expression dichotomy, and think that it's always this incredibly sketchy area of legal fiction. It's not--in fact, it's almost always INSANELY EASY to tell the difference between the two.
"Strange visitor from another planet who poses as a human to save us from ourselves?" Sure, that's Superman, but it's also The Day The Earth Stood Still. An adventure story involving a farmboy, an old wizard, a pirate, a princess and an evil king? That's just about hundreds of children's fables, but it's also Star Wars. The ability to distinguish between the idea, and the expression of the idea, is not difficult at all.
The reason that someone without any legal background might think that it's always difficult is that they're reading reported cases, which almost always come from the appellate level or above and so BY THEIR VERY NATURE are closely contested legal concepts. The overwhelming number of cases aren't even close to the line, don't make it to the appellate level and usually don't even make it to trial.
I understand that you feel passionate about what you write, but the simple truth of it is that you usually understand just enough to get it completely wrong.
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Good point. I never though about selection bias before
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The problems is that many Attorneys I know, have no problem billing $140 an hour to discuss the weather.
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Um, that's because you're not presenting a question.
Which, by the way, is a common pattern... :)
Happy 4th, Mike.
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The question was how do you explain away the conflict between the 1st Amendment and copyright law in cases like this, where the idea/expression dichotomy doesn't seem to exist?
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Well, OK, great...except that's NOT what you said. What you did say was that the dichotomy was "mythical" and that it "doesn't really exist". Now you're saying that "in cases like this" (which one?) it "doesn't SEEM to exist"--which is such a different question that if you can't tell them apart, the idea/expression dichotomy is the least of your problems.
So, what happens in cases when (as you now articulate) the distinction doesn't seem to exist? Well, that's called the Doctrine of Merger, and it means that it's not copyright infringement. It's a concept basic to anyone who has even a passing understanding of copyright law; since this is apparently the first time you've heard of it, you can now look it up, and join the team.
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Love it. You respond by acting totally condescending again, falsely asserting I don't know of a particular concept and NOT ACTUALLY DEALING WITH THE KEY ISSUE.
Is that what they teach you in law school?
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Gee whiz, Mike...if you had known about the Doctrine of Merger, you wouldn't have raised the question about what happens when there's no distinction between the idea and the expression of the idea. Instead, you've now got 100 messages discussing whether the sun rises in the east.
Once again, and this time with feeling, since you appear to be in the cheap seats: when the idea and the expression merge, there's no "big big" constitutional problem, because there's no copyright claim. Pretty basic, yes? (Tomorrow''s lesson: fractions and long division.)
And the reason you don't know what they teach in law school is because....well, OK--you know where that one is going.
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Hmm. Considering the great number of well-respected legal scholars who disagree with you, I'd argue that perhaps there's a bit more to this than you're making out. Must we run through the list of folks who believe there are serious issues between copyright law and the first amendment, or are you going to tell me that none of them went to law school too (hint: I even linked to a few in the post).
Once again, and this time with feeling, since you appear to be in the cheap seats: when the idea and the expression merge, there's no "big big" constitutional problem, because there's no copyright claim. Pretty basic, yes? (Tomorrow''s lesson: fractions and long division.)
There are an awful lot of folks who are pretty well respected who disagree with you. Are you going to teach them long division too?
And the reason you don't know what they teach in law school is because....well, OK--you know where that one is going.
Remind me again, since you know so well, where in the law it says you cannot bring up topics for discussion or express your opinion on them without a law degree?
Thanks. That would be *so* helpful.
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If your pal ASH is originating comments from the US, chances are they are here on a green card or H1B Visa. :-P
Copyright needs to be fixed by Americans, not some other prodigy from another country.
Thanks for listening.
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They do, they should be, and they do.
Why is a tribute handled differently from a parody?
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"Get off this idea that the law treats real property and intellectual property the same because they are both "property.""
I don't think anyone suggests that, I don't know why people keep repeating it in posts. However, intellectual property has much of the same parameters as "real" property, they can be bought, sold, transferred, inherited, etc. The differences are small compared to the similarities.
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Intellectual property:
Bob to Friend: man i wish i had a whopper, i could be eating it right now (insert whopper-holding-technique), taking a big bite (demonstrate whopper-biting-technique)... man good times.
Friend to Bob, yah man a whopper sounds good (demonstrating both techniques).
Physical Property
Bob to Friend: man this whopper is delicious (demonstrates techniques).
Friend to Bob: (insert friend ganking bob's whopper and taking a bite). Yah man it sure is.
Difference, nobody gets mad. when they both have the same "idea". But if u gank bob's whopper....
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Ideas
Look at how they have tried to pervert this anachronism that does not fit anything today.
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Re: Ideas
The idea of an orphan-boy-wizard, etc., is an idea. The story of Harry Potter is an idea. The novel itself (and later, the films) are specific expressions of those ideas. It's not that difficult unless you intentionally want it to be.
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Re: Re: Ideas
Finding out that fact certainly humbled a lot of them, and their ideas about originality in science.
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Re: Re: Re: Ideas
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copyright
D'Artagnan and Cyrano come to mind as two similar characters from the same region with similar traits, yet completely different interpretations, Rostand did not call Cyrano D'Artagnan.
And so on.
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First Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
...which, in the absence of a prohibition elsewhere in the Constitution, places no restriction upon state and local restrictions upon speech, assembly, etc. That prohibition may exist, but it's not in the First Amendment.
I like your observation that the line is not clearly drawn in the "dichotomy" between idea and expression. I find it difficult to imagine any argument that would persuade me that the James Bond character is not a concrete expression of the idea of a Cold War secret service agent. And, yet, you are offering--what--that James Bond in "Octopussy" is a concrete expression of some generalized idea of James Bond?
It seems to me that the lines are rarely drawn clearly when it comes to the law, anyway. Isn't that why judges exist--to referee combat in the gray areas?
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Re: First Amendment
Right, but the argument is that *copyright law* (which is written by Congress) does in fact infringe on the right to free speech. The argument is not a guarantee of free expression, but that Congress has taken that away due to copyright law. That's the complaint people are making.
No one is saying that you have a universal right to free speech, but that Congress violated the "no law" part of the first amendment with the copyright act.
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Re: Re: First Amendment
It is unequivocal statements such as this that significantly take away the persuasive force of many of your arguments/positions. I suggest you run it by your friends who practice law since you seem to rely in significant part on what they tell you. I daresay everyone of them will disagree with the above statement.
Of course, if what you are attempting to say is more nuanced, it would help to elaborate on the metes and bounds of what you are trying to convey.
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Re: Re: First Amendment
Harper & Row v. Nation Enterprises (1985)
Eldred v. Ashcroft (2003)
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Re: First Amendment
> nor prohibited by it to the states, are reserved to the states
> respectively, or to the people.
> ...which, in the absence of a prohibition elsewhere in the
> Constitution, places no restriction upon state and local
> restrictions upon speech, assembly, etc. That prohibition
> may exist, but it's not in the First Amendment.
The 1st Amendment (and the rest of the Bill of Rights) applies to government of all levels. It's been incorporated to apply to the state and local governments through the 14th Amendment.
If the 1st Amendment didn't apply to local governments, the NYPD, for example, could shut down newspapers in the City of New York that are critical of the government, or ban all protest within the city limits, or the city council could declare Christianity the official religion in the city and prohibit the practice of all others.
No, it's well established that if you're a government official of *any* kind, you must abide by the 1st Amendment's restrictions on your power.
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James Bond
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Re: James Bond
I have seen other commercials in the last several decades that invoked an image of James Bond without copying so many implementations from the movies. Sounds like Honda was too clever for their own good.
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You sir, are wrong.
The films I listed have similarities, and are reasonably close substitutes. Your example of M*A*S*H and I Love Lucy is a poor example and fails the "close substitute" test.
But hey, why not? This approach worked super well for the music industry. See:
http://www.techdirt.com/articles/20081205/1146593034.shtml
If you seek to find similarities, you always can. But you can also almost always find the difference that make them unique speech, and thus non-infringing.
Ah, so speech can be non-infringing but move into products, or the area of "economic activity" and it becomes an issue.
But it isn't. For the most part, the people paying want the product more than they want their money. Nobody has a gun to their heads.
Not necessarily true. Copyright and IP are being misued and abused as a welfare system for labels, recording companies, movie studios and the like. Back 50 years ago when there were few competitors, the businesses protected each other and used Copyright as a tool to eliminate specific competitors. The problem today, is that you don't need a printing press, newsies, or distributors to push your wares. You have the internet.
Today's approach is that it fails to reflect the original intent of copyright protection, which was conceived not as a welfare program for authors but to encourage the creation of new works, and the proverbial deck is stacked against small business who can bring any type of niche product to market- be it a song, movie, invention like the Blackberry, or the like. The point I was trying to make is that it seems that unless they're signed on by a major distributor, production house, or the like, to develop a product/screenplay/song, be it even reinterpretation or derivative, is at a higher risk to be stolen or even sued.
As for Copyright and IP, as it stands now, it certainly *IS* a method for economically exploitation.
We know that stronger copyright protection can increase the market value of companies. But this is a gain to corporate, not societal welfare, and what I believe was not the intended outcome of the USPTO, Copyright or Patents in general.
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Re: You sir, are wrong.
Again, that is only in your mind. You see the connections on "subject matter", while I showed you any number of connections between I Love Lucy and MASH. If you are looking for something, you can almost find it (sort of like the eye in the pyramid on the US dollar).
"Ah, so speech can be non-infringing but move into products, or the area of "economic activity" and it becomes an issue."
Nope, you misread my point entirely - even in economic activity, you can have similar ideas that are not similar expressions, and there there is no issue. You can have harry potter, and you can have "I was a teenage witch", both feature magic but both are different expressions of a similar idea base. You can't copyright an idea base, but you can copyright a collection of ideas together as a product. That is why spy movies abound, but there is only 1 (or 1.5) James Bond.
"We know that stronger copyright protection can increase the market value of companies. But this is a gain to corporate, not societal welfare, and what I believe was not the intended outcome of the USPTO, Copyright or Patents in general."
Unproven concept. As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society. "Societal welfare" is a complicated concept that isn't going to get fixed by cutting copyright in half, example. Removing the economic benefits of copyright could in fact have a major negative on an economy, encouraging companies not to do business and not operate in areas where they don't have a fair exception of profiting from their advancements and products.
My feeling? You have a fairly hard socialist agenda, and I am sure you can go on for hours on ways you can bend the constitution to fit your needs. There is a long line of caselaw that says otherwise.
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Re: Re: You sir, are wrong.
Monopolies causing a loss to aggregate output is very well accepted in economics.
"As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society."
This is like saying "as slave owners get richer they tend to "employ" more slaves and pay more taxes. This does not "enrich" society." Trickle down economics does not work.
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Re: Re: Re: You sir, are wrong.
This is like saying "as slave owners get richer they tend to "employ" more slaves and pay more taxes." This does not "enrich" society. Trickle down economics does not work.
A monopoly may employ more people than any single non - monopoly but the sum of all non monopolies in a competitive market leads to increased aggregate output partly because more people, as a whole, are employed (because you have more people producing products." The notion that monopolies enrich society is an unproven fact.
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Re: Re: Re: Re: You sir, are wrong.
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Re: Re: Re: You sir, are wrong.
Really? I beg to differ. In the past decade, we've seen more off shoring (where labor is cheaper) resulting in crappier products, numerous companies setting up offshore shell companies (like in Ireland) whose sole purpose is to take advantage of legalized tax evasion.
Then those that do get caught somehow still have money to try and find out where to go to jail.
Trickle down doesn't work.
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Re: Re: Re: Re: You sir, are wrong.
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Re: Re: Re: Re: Re: You sir, are wrong.
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Re: Re: Re: Re: You sir, are wrong.
Yup, didn't work at all.
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Re: Re: You sir, are wrong.
Right. Are you honestly saying that if you were to take a poll do you really think the general populous will agree to your belief that M*A*S*H infringed on I Love Lucy? Come on. I didn't know I was born was yesterday.
Unproven concept. As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society. "Societal welfare" is a complicated concept that isn't going to get fixed by cutting copyright in half, example. Removing the economic benefits of copyright could in fact have a major negative on an economy, encouraging companies not to do business and not operate in areas where they don't have a fair exception of profiting from their advancements and products.
You better be more direct with sharing these types findings outside of your social circle. People in academia are writing PH.d thesis around this statement. :-)
My feeling? You have a fairly hard socialist agenda, and I am sure you can go on for hours on ways you can bend the constitution to fit your needs. There is a long line of caselaw that says otherwise.
Interesting observation, but completely wrong. I am not Socialist nor do I have an agenda, however, the fact you made a conscientious decision to make a personal attack merely shows how wobbly the ladder you stand on is...
Your answer: 'Go read some caselaw' you say.... And that's why the whole lot of Copyright Law needs to be sent back to Congress.
As long as Copyright and IP law are used as tools to prohibit commerce, it is, and only will be used as a tool to exploit people.
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Re: Re: You sir, are wrong.
I suppose if you define an idea/concept as broadly as you like you can always argue that there is plenty of competition. Just like if you re - define a market segment you can argue there is plenty of competition (kinda like how broadband providers in the U.S. simply re - define the market segment to argue that there is plenty of competition despite the fact that other countries are ahead of us in this arena). Also, ideally one is not supposed to have a copyright on an idea but in reality entities may try to argue that a small collection of ideas, as close to a single idea as possible, is copyrightable.
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Re: Re: Re: You sir, are wrong.
I suppose if you define an idea/concept as broadly as you like you can always argue that there is plenty of competition. Just like if you re - define a market segment you can argue there is plenty of competition
Sure. And that's probably why a good portion of art that was created years ago hasn't been re-purposed for the modern age. Take "The Catcher in the Rye" as your example.
What, outside of ego, and the occasional opportunistic family attorney keeps art stuck in time and stagnated?
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Re: Re: Re: Re: You sir, are wrong.
Circular arguments were not used.
"What, outside of ego, and the occasional opportunistic family attorney keeps art stuck in time and stagnated?"
Intellectual property that lasts forever minus one day.
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Re: Re: You sir, are wrong.
Notice the tacit admission that intellectual property is for the "rich" ("As companies get richer") and not necessarily for the benefit of small businesses or society as a whole. Now your only goal is to convince everyone that creating laws that benefit the rich (at the cost of society) only helps the rich because that wealth will trickle down to the rest of society. Might as well argue that not taxing the rich, and taxing everyone else, helps society out as well (because that money will trickle down).
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Re: Re: Re: You sir, are wrong.
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Re: Re: Re: You sir, are wrong.
Using this logic the government might as well just donate tax dollars to the rich because it'll just trickle its way down.
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Re: Re: Re: You sir, are wrong.
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Re: Re: You sir, are wrong.
Copyright/Intellectual property is a form of government intervention, you are the one who is supporting more government intervention and hence your idea is more socialist than those who oppose intellectual property.
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Re: Re: Re: You sir, are wrong.
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Re: Re: You sir, are wrong.
Lets just throw logic away because the only thing that matters here is your personal feelings and emotions.
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freedom of speech in the U.S. Const. DOES include freedom of expression
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First Amendment challenge to copyright? Come on, you would think someone would have gotten around to it in the last couple of hundred years, no? Maybe there is a reason, because the only dichotomy is the one made up by scholars to keep themselves amused.
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Someone has gotten around to it.
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Re: Someone has gotten around to it.
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Re: Re: Someone has gotten around to it.
Heh. I love it. An anonymous coward is telling a copyright law professor he doesn't understand what fair use means? Credibility...
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Ideas
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Copyright dichotomy
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Thoughtful
I found this is a very thoughtful and thought provoking piece. However, I think your conclusion is based on an unstated premise that is in my opinion very debatable. In your first paragraph you concede that the distinction between and idea and expression is difficult to decipher. As the post continues, though, you presume that "expression" is/should be limited to the literal text of a work. I'm not sure that makes sense from either a policy or philosophical standpoint. Learned Hand expressed this concern in Nichols v. Universal Pictures:
"It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case"
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Re: Thoughtful
Then we have the [mistaken] belief that the owners of James Bond somehow endorse Honda. Sounds like deceptive intent.
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Re: Thoughtful
All of these overlap throughout historical instances of writing--the first instance of rhyme should not have received a copyright on rhyming, nor should Shakespeare(who whomever was first) have had a monopoly on iambic pentameter, and I can't tell you how many times I've read through the same tired plotlines.
I presume you would think of specific character names, personalities, histories, etc. but these are ideas, not expressions. The expression is the specific manner in which these abstract creations are manifested textually, or I could just write a book composed of all possible new permutations of 2, 3, 4, 5, 6 letters and so on and have a copyright on the 'expression' of those names that I have created by referencing first.
You cannot merely disprove Mike's assertion by quoting relevant case law, because his assertion is that certain precedents established in copyright law are contradictory of other precedents, i.e. the First Amendment. It certainly seems to me that what the courts are apparently defining as 'expressions' now are actually 'ideas', because if you go much beyond the literal text used to express an idea, there's not much left to go on.
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Re: Re: Thoughtful
I respectfully disagree with your viewpoint. When you copy a name, James Bond, and you copy his history, for example that he fought characters named Goldfinger, Blofeldt, that he was in locations such as the sunken Queen Mary, a stealth space station, and he consorted with women named Pussy Galore, etc., you have moved from ideas to implementation; to match the implementations cited, the ideas would be to creatively name the character without referencing any previously created or actual persons so that you character would be uniquely identified with your stories, characters named for their tastes or for their similarity to a certain poisonous fish, that the agent visited exotic locales that included sunken or partially sunken ships and a secret space station, and consorted with women with exotic names that seemed to describe their behavior, portions of their anatomy, or were just darn clever names. In fact, if you use the ideas rather than the implementations, you will almost certainly not have any copyright issues.
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Re: Re: Re: Thoughtful
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Re: Re: Re: Re: Thoughtful
Bond's history was all implementation. The moment you start copying his history, then you are copying implementation, which may be "fine" for you, but is not fine from a copyright infringement viewpoint. Instead of trying to find where the line begins, just make your own stories. Do you really need to copy James Bond to have an effective story, or are you doing so to piggy back off Bond's success?
Incidentally, if your story is that great and it requires the implemented James Bond universe, why not approach the copyright holder and try to sell them the story?
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Re: Re: Thoughtful
Not true at all. What you would have is a collection of names that mean nothing without more to go with it. So, call a character Valentine Michael Smith ("Stranger in a Strange Land," by Robert A. Heinlein), have him visit an exotic South American or Central American location ("Raiders of the Lost Ark"), where he locates a woman by the name of Miss Moneypenny (James Bond series; in fact, there is a company called Moneypenny Assistants that has nothing to do with James Bond), who is busy investigating the activities of a couple of boy detectives named Frank and Joe (the Hardy Boys series). Do you have copyright infringement yet? Though I am not a copyright attorney, I would say no. These are "implementations," but they are not sufficient to invoke the original books or movies that they came from.
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Re: Re: Re: Thoughtful
Now expand it. You add a gender to the name--male. Someone else can still name a male with your name. Now say its a 40-year-old American male. Someone else can still have a character with those traits, and so on. Where do you draw the line? You're still taking an idea of a character with particular traits and history, you're just not spending the majority of your work expressing it in the same manner as the original work.
So I don't see how you can prevent an author from taking the Bond character and writing a book about an entirely new adventure that has never been expressed before if you can't prevent an author from writing about a 40-year-old man with your name. If you cross that line, there isn't much free 'expression' left, in my opinion.
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Re: Re: Re: Re: Thoughtful
Again, I disagree. Can you write a book using a character named James Bond? Sure. Can you write a book about a 40-year-old man named James Bond? Sure. Thus far, these are ideas.
However, if you are going to James Bond, a suave international spy, with a boss named M, a lab guy named Q, he drinks his martinis stirred, not shaken, etc., etc., you have clearly crossed the line. If you are merely copying everything about a character that someone else developed and putting that character into a new adventure, but keep everything from the old adventures, then you have crossed the line into copyright infringement.
Why not develop a new suave international spy named Ryan Lace, who drives around in hot sports cars, visits exotic locales, has a boss named X, a lab guy named Tinker, and a woman by the name of Lotta Leggs? Thus far, because none of these have been incorporated into an internationally known series of books and movies, these are ideas. Now, go implement them. If, after your stories are famous, you wish to permit others to build off your universe (which others have done), then congratulations to you!
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Read first, comment later
Would be grateful if someone could provide the URL.
(wish people would make a better habit of linking to original source material)
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