Is There Really An Idea/Expression Dichotomy In Copyright?

from the it's-difficult-to-see dept

Thu, Jul 2nd 2009 7:27pm — Mike Masnick

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.

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.

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.

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Filed Under: catcher in the rye, copyright, expression, first amendment, idea, jd salinger

122 Comments

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Anonymous Coward, 2 Jul 2009 @ 7:34pm

Mike, in many ways, almost every law on the books can be read to infringe on the first amendment in one way other another. What is often missing in the discussion is the concept that your rights are made up of a patchwork of things rather than just what is written directly on the original declaration.

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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Mike Masnick (profile), 2 Jul 2009 @ 7:40pm

Re:
I love this. Three paragraphs telling me I'm wrong and I don't know what I'm talking about... without ONE SINGLE EXPLANATION.

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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Anonymous Coward, 2 Jul 2009 @ 8:15pm

Mike, as I said: Take any law out of context, and it can appear to violate your first amendment rights, from speeding to income taxes.

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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peter (profile), 2 Jul 2009 @ 8:25pm

Coward - Could these things be said about "any law"? -- We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas. Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001). In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind. The court ordered the lawsuit dismissed because The Wind Done Gone’s use of the characters and story line from Gone with the Wind constituted fair use. In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”
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Rose M. Welch (profile), 2 Jul 2009 @ 9:00pm

Re:
Coward got pwnd.
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Michael L. Slonecker, 2 Jul 2009 @ 10:13pm

Copyright law and First Amendment law are always in a state of tension. The very same thing can be said of patent law and antitrust law. Where one leaves off the other begins, and any lawyer who endeavors to represent a client in such matters had better have a good handle on where the lines of demarcation are located. Of course, this is often not an easy task given that such lines seem to move back and forth as new cases and new facts force the courts to address questions that are ones of first impression.

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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Anonymous Coward, 3 Jul 2009 @ 12:32am

Related to this case is the idea that parody gets exemption. (The lawyers claimed that the Catcher in the Rye sequel was a parody.) I have a real hard time with the law on this. What if I make a "parody" of Beavis and Butthead? Would anyone be able to tell the difference? Are certain forms of humor immune to parody by default?

I point this out only to show that the law for derivative works makes no sense.
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Doctor Strange, 3 Jul 2009 @ 12:32am

when that dichotomy doesn't really seem to exist

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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Edward Barrow, 3 Jul 2009 @ 2:27am

follow the money
The idea/expression dichotomy is part of established copyright law, so it informs the way lawyers and judges decide copyright cases. The problem is that in most cases the value lies in the idea, and much less in the expression. So litigants use copyright law to protect their valuable ideas, because their lawyers are well-funded, they use arguments to twist the facts of the case and to extend "expression" to include "idea". This - money driving the evolution of the law - is a universal problem, not a copyright-specific problem. The idea-expression dichotomy is, in my opinion, a much more important defence of free speech than, say, fair use; but it is, undoubtedly, weaker than it should be because of some bad copyright decisions which followed the money.
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Seth Johnson, 3 Jul 2009 @ 2:35am

Read Feist Publications
Read Feist Publications, every word, which will clarify the fact/expression or idea/expression dichotomy very well:

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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Osno (profile), 3 Jul 2009 @ 4:36am

Loving this part:

you are a talking about no doubt come from your usual collection of idols

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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David T, 3 Jul 2009 @ 4:46am

The problem with copyright...
Why is the Harry Potter lexicon illegal if the "ideas" behind Rowling's world weren't covered by copyright? How does a copyright on a song cover every rhythm and beat within if only the expression is protected (e.g. the song in it's entirety)? Would Greek literature or the Shakespearan plays have survived in the present world of copyright litigation?

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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Comboman, 3 Jul 2009 @ 4:58am

No monopoly on ideas.
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 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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Anonymous Coward, 3 Jul 2009 @ 5:05am

Re: No monopoly on ideas.
It's why Mike's ideas are often funny to think about.

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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Jiminy Cricket (profile), 3 Jul 2009 @ 5:14am

Re: Re: No monopoly on ideas.
And Mike smells funny too.
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Anonymous Coward, 3 Jul 2009 @ 5:14am

Re:
You make no sense
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Anonymous Coward, 3 Jul 2009 @ 5:16am

Re: Re: No monopoly on ideas.
Can I name him Bames Jond 700, stired not shaken ?
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Anonymous Coward, 3 Jul 2009 @ 5:34am

Re: Re: No monopoly on ideas.
I am not particularly "pro-copyright," but I disagree with the statement that copyright protects "ideas."

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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MaiiTsoh, 3 Jul 2009 @ 6:00am

This was alluded to in an earlier comment, but I want to repeat it for clarity. Mike, I think you and the person you quote both fall into the trap you're writing about here: failing to accurately make the distinction between idea and expression.

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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Anonymous Coward, 3 Jul 2009 @ 6:05am

This whole idea/expression thing isn't as complicated as this post and the comments suggest. Using James Bond, Fleming owns the characters ( his expression), but not the right to all slick British agents (the idea).

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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Sneeje (profile), 3 Jul 2009 @ 6:22am

Re: The problem with copyright...
But I think this is exactly the problem. What is not clear is the extent to which the ideas are covered because we know that some ideas are covered and some are not. Clearly a book about spies does not infringe upon James Bond, but what about a book about a British spy named James that likes martinis but has no other associated characteristics? Or what about a book about british spies that battle a secret organization called "Ghost"? Both are derivative of James Bond but in different ways and to different extents.

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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ASH, 3 Jul 2009 @ 6:24am

Mike, let me reiterate the point made in post #1. You're often like someone who only reads what's on the medication bottle in his hand, without any concept that taking it could KILL YOU if you're also taking other medication that doesn't happen to be in your hand at the moment.

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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Sneeje (profile), 3 Jul 2009 @ 6:26am

Re: No monopoly on ideas.
@Comboman, I'm not sure you're correct. In today's climate, I would be very nervous about creating that work--if a claim were brought against me I'm not sure I would prevail.
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Anonymous Coward, 3 Jul 2009 @ 6:37am

Re:
You bring up a very good point. If you are writing a book about a suave British secret agent fighting organization (perhaps C.H.A.O.S.), you can refer to another suave British secret agent by the name of James Bond, who drinks martinis shaken, not stirred, and who has a boss named M.

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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Anonymous Coward, 3 Jul 2009 @ 7:28am

Its funny because there are James Bond parodies, ever heard of Get Smart?
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Anonymous Coward, 3 Jul 2009 @ 8:02am

Re:
...the Copyright Act enables speakers to make money from speaking ...

Speakers can make money from speaking without copyright.
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Anonymous Coward, 3 Jul 2009 @ 8:58am

Re:
yes, but even in parody, the name isn't james bond, he didn't drink martinis, and his boss's name wasn't M. The idea was very similar "secret agent", but the expression of the idea was totally different.
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Anonymous Coward, 3 Jul 2009 @ 9:38am

Re:
Parodies have their own legal protections, are not the focus of this discussion thread, and don't bear on this argument.
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peter (profile), 3 Jul 2009 @ 9:48am

Coward - your choice of character to illustrate the simplicity of the consequences of copyright in a character ironically enough undermines your point. James Bond belongs to Ian Fleming? Tell it to the courts that struggled over Danjac LLC v. Sony Corp.(http://reporter.blogs.com/files/0055781p.pdf), which was a lawsuit about whether the guy who wrote the first screenplay for a James Bond movie with Fleming had created a new "movie" Bond who was a different character than the one Fleming had already created (and arguably infringed in his later novels by using the "movie" Bond as the later "literary" Bond). As the court described it: "[T]his case arises out of an almost forty year dispute over the parentage and ownership of a cultural phenomenon: Bond. James Bond." The court did what courts like to do in cases that involve legal issues that are exceedingly difficult to resolve -- it decided it on a different legal issue, leaving the issue you think is so plain unresolved. But then, you do have a tendency to over-simplify. Get off this idea that the law treats real property and intellectual property the same because they are both "property." I went through this in response to you yesterday. http://www.techdirt.com/article.php?sid=20090702/0125045432#c689 And are you suggesting that the court that decided Sun Trust (which by no means is alone in recognizing that copyright restricts expression and therefore is in tension with the First Amendment) is expressing some sort of "purist's" view of free speech that can't accommodate the restriction on yelling "fire" in a crowded theater? Get real. Are you some sort of property purist who believes that you can do anything you want with your property (and therefore that nuisance law, zoning laws, and environmental laws -- just as a start) are unconstitutional? If so, you're the one expressing views with no legal basis.
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Derek Kerton (profile), 3 Jul 2009 @ 10:32am

Re:
I agree that you didn't attack Mike personally.

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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lulz, 3 Jul 2009 @ 10:46am

Re: Re: The problem with copyright...
But not of the original copyright holder.
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bigpicture, 3 Jul 2009 @ 10:53am

Ideas
What is being ignored is that in the end it is ALL IDEAS, even the "expression of an idea" is still an IDEA. There is no real confusion with this, just copyright spin trying to cause a distinction, which is causing the confusion. Copyright was originally about control of printing presses, (that replaced scribes) so someone else could not purchase a printing press produce printed copies of something that another printing press owner believed that they had title to.

Look at how they have tried to pervert this anachronism that does not fit anything today.
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lulz, 3 Jul 2009 @ 10:54am

Re:
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.

Good point. I never though about selection bias before
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Anonymous Coward, 3 Jul 2009 @ 11:48am

Re: Ideas
In an effort to get at the big picture, you're skipping over whole swaths of relevant and significant details, which isn't helpful to anyone.

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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Mike Masnick (profile), 3 Jul 2009 @ 11:49am

Re:
Where one leaves off the other begins, and any lawyer who endeavors to represent a client in such matters had better have a good handle on where the lines of demarcation are located. Of course, this is often not an easy task given that such lines seem to move back and forth as new cases and new facts force the courts to address questions that are ones of first impression.

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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Reed (profile), 3 Jul 2009 @ 12:20pm

Re: Re: JK Hamburgler
Anon, 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.

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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Anonymous Coward, 3 Jul 2009 @ 12:33pm

Re: Re: Re: JK Hamburgler
Except that they aren't copies. They are stories of similar nature, but not similar stories.

"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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Michel Ditlove, 3 Jul 2009 @ 2:13pm

copyright
If you like James Bonds character and want to do your own, do so and give him your idea of a name, others have been doing it for centuries, you're just lazy if you don't.

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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Mike Masnick (profile), 3 Jul 2009 @ 2:46pm

Re:
ASH writes for six paragraphs telling me I'm "completely wrong" but nowhere does s/he actually bother to respond to the question presented. Funny... This is a common pattern.
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Anonymous Coward, 3 Jul 2009 @ 2:58pm

Re: Re:
Possibly because you are asking a question best left to lawyers?
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Michael L. Slonecker, 3 Jul 2009 @ 4:15pm

Re: Re:
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!

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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Sneeje (profile), 3 Jul 2009 @ 4:20pm

Re: Re: Re: The problem with copyright...
So what? if they don't execute, why should they be rewarded? If you have the idea to start a coffee shop, but two other people actually put in the effort to make it happen, who should get the reward? People pay for products and services, not ideas. An idea without execution is just that--an idea.
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Mike Housky, 3 Jul 2009 @ 4:56pm

First Amendment
I'm no fan of intellectual property law, but neither am I much impressed by the notion that the First Amendment guarantees the right of free expression. It doesn't say so. All it says is that Congress can't abridge our rights to free speech. Nine amendments down the page comes:

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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ChurchHatesTucker (profile), 3 Jul 2009 @ 5:36pm

Re: Re: Re: Re: JK Hamburgler
"...you just can't go and buy your burgers from MickeyDs, stick a new label on them, and call it new."

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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ChurchHatesTucker (profile), 3 Jul 2009 @ 7:13pm

Re: Re:
"Parodies have their own legal protections, are not the focus of this discussion thread, and don't bear on this argument."

They do, they should be, and they do.

Why is a tribute handled differently from a parody?
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Anonymous Coward, 3 Jul 2009 @ 7:21pm

Re: Re: Re: Re: Re: JK Hamburgler
You got that wrong:

"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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Alan Shore, 3 Jul 2009 @ 7:40pm

Re: Re: Re:
Attorneys? They practice law, which in many ways is based on predictions of outcomes based on previous events. In many ways, it's a very similar method that Meteorologists use in their day-to-day career.

The problems is that many Attorneys I know, have no problem billing $140 an hour to discuss the weather.
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Alan Shore, 3 Jul 2009 @ 7:41pm

Re: Re: Re: Re: Re: Re: JK Hamburgler
Ford isn't buying a whack of corvettes and slapping ford badges on them.

I like that. Very good.
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Anonymous Coward, 3 Jul 2009 @ 10:14pm

Re:
Well, first you're missing that Mike didn't bring up Bond. Some other commenter did.
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Anonymous Coward, 3 Jul 2009 @ 10:17pm

Re: Re:
And Harry Potter is in no way original, either. There are actually suits against the author for taking not just the names and changing them only slightly, but the entire ideas /and/ expressions of other authors.
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Richard, 4 Jul 2009 @ 1:50am

Re: Re: Re: No monopoly on ideas.
It was "stirred, not shaken" in the books - think about it - it makes much more sense that way - but somehow "shaken not stirred" sounds better and so that's what the fils went with.
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Anonymous Coward, 4 Jul 2009 @ 5:37am

Re: Re: Re: Re: Re: JK Hamburgler
Or you can go the Dell route, buy a bunch of parts from Fujitsu or wherever, slap them together and say, "Look! Dell manufactured hardware."
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Anonymous Coward, 4 Jul 2009 @ 6:01am

Re: Re: Re: Re: Re: Re: JK Hamburgler
Almost everything is made of parts. There is just a huge difference between assembling parts (purchases legally) and just taking someone else's finished product and slapping your name on it.
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Anonymous Coward, 4 Jul 2009 @ 6:13am

Re:
Actually, it's the perfect point. The current "james bond" material has diverged widely from the original James Bond books. For all the legal that might exist, there are only two potential owners, and Fleming is on both sides. So the issue isn't all that important.

"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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Anonymous Coward, 4 Jul 2009 @ 6:46am

Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
True, but Dell rebrands other's material, they just do it with their permission. For instance, an HP blade server is an HP blade server. An IBM blade server is an IBM blade server. A Dell blade server is a Fujitsu blade server...
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ASH, 4 Jul 2009 @ 7:11am

Re: Re:
"ASH writes for six paragraphs telling me I'm "completely wrong" but nowhere does s/he actually bother to respond to the question presented. Funny... This is a common pattern."

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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ChurchHatesTucker (profile), 4 Jul 2009 @ 8:19am

Re: Re: Re: Re: Re: Re: JK Hamburgler
"Yes, but they still sell them as corvettes. Ford isn't buying a whack of corvettes and slapping ford badges on them."

So you're saying that if I write a Bond inspired novel, I SHOULD use Bond as a character?
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Anonymous Coward, 4 Jul 2009 @ 9:03am

Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
Sure you can - provided you can get the rights from the owners of the characters. Good luck.
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Anonymous Coward, 4 Jul 2009 @ 9:10am

Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
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.
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Mike Masnick (profile), 4 Jul 2009 @ 10:14am

Re: First Amendment
I'm no fan of intellectual property law, but neither am I much impressed by the notion that the First Amendment guarantees the right of free expression. It doesn't say so. All it says is that Congress can't abridge our rights to free speech. Nine amendments down the page comes:

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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Mike Masnick (profile), 4 Jul 2009 @ 10:17am

Re: Re: Re:
Um, that's because you're not presenting a question.

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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Mockingbird, 4 Jul 2009 @ 10:38am

James Bond
In effect (though of course not in theory) the idea of James Bond was found copyrightable in the case of Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Calif., 1995). Honda was enjoined by the court from showing an advertisement for the Honda del Sol which featured
a young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter. A grotesque villain with metal-encased arms jumps out of the helicopter onto the car's roof, threatening harm. With a flirtatious turn to his companion, the male driver deftly releases the Honda's detachable roof (which Defendants claim is the main feature allegedly highlighted by the commercial), sending the villain into space and effecting the couple's speedy get-away.
The name "James Bond" nowhere occurred in the Honda ad, but on the basis of the features described above, the ad was found to infringe chase scenes in Bond films, and the Bond character, on this basis:
(1) the theme, plot, and sequence both involve the idea of a handsome hero who, along with a beautiful woman, lead a grotesque villain on a high-speed chase, the male appears calm and unruffled, there are hints of romance between the male and female, and the protagonists escape with the aid of intelligence and gadgetry; (2) the settings both involve the idea of a high-speed chase with the villain in hot pursuit; (3) the mood and pace of both works are fast-paced and involve hi-tech effects, with loud, exciting horn music in the background; (4) both the James Bond and Honda commercial dialogues are laced with dry wit and subtle humor; (5) the characters of Bond and the Honda man are very similar in the way they look and act -- both heros are young, tuxedo-clad, British-looking men with beautiful women in tow and grotesque villains close at hand; moreover, both men exude uncanny calm under pressure, exhibit a dry sense of humor and wit, and are attracted to, and are attractive to, their female companions.
and also on the basis of the following specific similarities:
(1) In "The Spy Who Loved Me," James Bond is in a white sports car, a beautiful woman passenger at his side, driving away down a deserted road from some almost deadly adventure, when he is suddenly attacked by a chasing helicopter whose bullets he narrowly avoids by skillfully weaving the car down the road at high speed. At the beginning of the Honda commercial, the Honda man turns to his companion and says, "That wasn't so bad"; to which the woman replies, "Well, I wouldn't congratulate yourself quite yet" -- implying that they had just escaped some prior danger. Suddenly, a helicopter appears from out of nowhere and the adventure begins.
(2) In "Dr. No.," the villain has metal hands. In the Honda commercial, the villain uses his metal-encased hands to cling onto the roof of the car after he jumps onto it.
(3) In "Goldfinger," Bond's sports car has a roof which Bond can cause to detach with the flick of a lever. In the Honda commercial, the Honda del Sol has a detachable roof which the Honda man uses to eject the villain.
(4) In "Moonraker," the villainous henchman, Jaws, sporting a broad grin revealing metallic teeth and wearing a pair of oversized goggles, jumps out of an airplane. In the Honda commercial, the villain, wearing similar goggles and revealing metallic teeth, jumps out of a helicopter.
(5) In "The Spy Who Loved Me," Jaws assaults a vehicle in which Bond and his female sidekick are trying to make their escape. In the Honda commercial, the villain jumps onto the roof of the Honda del Sol and scrapes at the roof, attempting to hold on and possibly get inside the vehicle.
(6) In "You Only Live Twice," a chasing helicopter drops a magnetic line down to snag a speeding car. In the Honda commercial, the villain is dropped down to the moving car and is suspended from the helicopter by a cable.
These supposed similarities are abstract enough that the court's injunction can be plausibly deemed to protect ideas. And indeed, a scholar named Jonathan S. Katz gave a glowing review of this case in an article titled "Expanded Notions of Copyright Protection: Idea Protection within the Copyright Act", 77 Boston University Law Review, 873 (October, 1997).
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Michael L. Slonecker, 4 Jul 2009 @ 11:35am

Re: Re: First Amendment
Ib>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.

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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Zohan Dvir, 4 Jul 2009 @ 12:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
I'll take a stab at this. There's enough here for 5 posts.

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.

---
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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Anonymous Coward, 4 Jul 2009 @ 1:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
"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."

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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Anonymous Coward, 4 Jul 2009 @ 2:05pm

Re: Re: Re: Re:
Go read a couple of hundred years worth of caselaw, you will find your answer.
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Zohan Dvir, 4 Jul 2009 @ 3:27pm

You sir, are wrong.
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.

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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peter (profile), 4 Jul 2009 @ 4:01pm

freedom of speech in the U.S. Const. DOES include freedom of expression
This just so happened to appear yesterday in the WSJ, written by a guy who is behind the Volokh Conspiracy, a largely right-wing and largely (not entirely) group: "The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same. Speech restrictions -- such as libel, slander, sedition, obscenity and blasphemy -- covered symbolic expression on the same terms as verbal expression." http://online.wsj.com/article/SB124657642816289111.html I could do more than take the first link on a simple Google search, but please don't go around telling anyone the U.S. Constitution does not guarantee the freedom of expression. That's why fair use applies to painting, to writing, to music, or to any other copyrighted form of expression.
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Anonymous Coward, 4 Jul 2009 @ 5:07pm

Re: 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."

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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Anonymous Coward, 4 Jul 2009 @ 5:58pm

Re: Re: You sir, are wrong.
"Unproven concept."

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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Zohan Dvir, 4 Jul 2009 @ 5:59pm

Re: 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).

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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Anonymous Coward, 4 Jul 2009 @ 6:02pm

Re: Re: Re: You sir, are wrong.
"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.

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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Anonymous Coward, 4 Jul 2009 @ 6:07pm

Re: Re: You sir, are wrong.
"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."

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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Zohan Dvir, 4 Jul 2009 @ 6:29pm

Re: Re: Re: You sir, are wrong.
Your attempt to argue a point (whatever it is) using circular arguments is disingenuous at best.

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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Anonymous Coward, 4 Jul 2009 @ 6:34pm

Re: Re: Re: Re: You sir, are wrong.
"Your attempt to argue a point (whatever it is) using circular arguments is disingenuous at best."

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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Anonymous Coward, 4 Jul 2009 @ 6:37pm

Re: Re: You sir, are wrong.
"As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society."

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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Anonymous Coward, 4 Jul 2009 @ 6:38pm

Re: Re: Re: You sir, are wrong.
sp/only helps the rich /doesn't only help the rich ...
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Anonymous Coward, 4 Jul 2009 @ 6:43pm

Re: Re: Re: You sir, are wrong.
"As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society."

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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Anonymous Coward, 4 Jul 2009 @ 6:46pm

Re: Re: You sir, are wrong.
"You have a fairly hard socialist agenda"

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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Anonymous Coward, 4 Jul 2009 @ 6:48pm

Re: Re: You sir, are wrong.
"My feeling?"

Lets just throw logic away because the only thing that matters here is your personal feelings and emotions.
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Cows Gone Mad, 4 Jul 2009 @ 6:59pm

Re: Re: Re: You sir, are wrong.
"As companies get richer, they in turn tend to employ more, pay more taxes, and generally enrich society."

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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ChurchHatesTucker (profile), 4 Jul 2009 @ 7:16pm

Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
"Sure you can - provided you can get the rights from the owners of the characters. Good luck."

Circular reasoning, thy name is Anonymous Coward.
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Anonymous Coward, 4 Jul 2009 @ 7:38pm

Re: Re: Re: Re: You sir, are wrong.
Not to mention the lobbying efforts to lower taxes for the rich and George Bush lowering taxes for the rich. As the rich get richer they lobby the government more to have taxes lowered for them.
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Anonymous Coward, 4 Jul 2009 @ 7:39pm

Re: Re: Re: Re: Re: You sir, are wrong.
and as they get richer they have more resources to manipulate the government to have their taxes lowered.
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bigpicture, 4 Jul 2009 @ 7:55pm

Re: Re: Ideas
"Skipping over whole swaths of relevant and significant details"??? That is what YOU have to do to find any relevance in copyright at all. In other words taking something completely out of context? If you give some thought to the great big picture and what scientists are finding out today on the very leading edge of quantum physics and the interaction between thought (ideas) and the fundamental stuff of the universe, the concept that an idea is unique to an individual is totally arrogant and egocentric. Nothing is ever brought into existence that did not always exist because it is always there in potential. And before you go on about but it was so and so brought it into actuality, no it is found to be the collective thought process that brings it into actuality.

Finding out that fact certainly humbled a lot of them, and their ideas about originality in science.
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Anonymous Coward, 4 Jul 2009 @ 11:08pm

Re: Re: Re: Re: You sir, are wrong.
..and in the past decade (ignore the last 18 months) the US population as a whole saw the single largest increase in wealth ever.

Yup, didn't work at all.
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btr1701 (profile), 5 Jul 2009 @ 5:14am

Re: Speeding
> Take any law out of context, and it can appear to violate your
> 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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btr1701 (profile), 5 Jul 2009 @ 5:31am

Re: 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.

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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Arudis, 5 Jul 2009 @ 5:57am

Re: Re:
Pwned w/ a capital P
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Arudis, 5 Jul 2009 @ 6:01am

Re: Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
Where do i sign up to get paid for name-slapping?
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Arudis, 5 Jul 2009 @ 6:09am

Re: Re:
"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."

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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Michael L. Slonecker, 5 Jul 2009 @ 8:09am

Re: Re: First Amendment
I neglected to mention the seminal cases directed to the "idea/expression dichotomy":

Harper & Row v. Nation Enterprises (1985)
Eldred v. Ashcroft (2003)
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Anonymous Coward, 5 Jul 2009 @ 10:14am

When I read all of this, I can only think of the wingnuts that think that US citizens shouldn't pay taxes or that they have the right to carry bazookas or whatever. They have been proven wrong in the past and will be proven wrong again in the future, but they continue to go on about what should have long been settled.

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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peter (profile), 5 Jul 2009 @ 10:48am

Someone has gotten around to it.
Coward - why do you speak without even reading the thread you're a part of (much less doing a bit of reflection and, um, research)? See above http://www.techdirt.com/article.php?sid=20090629/0317365399#c59 Fair use is a consequence of the right to free expression, and saying so as a legal matter is uncontroversial.
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Anonymous Coward, 5 Jul 2009 @ 10:58am

Re: Someone has gotten around to it.
Call us back when you understand what fair use really means.
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Anonymous Coward, 5 Jul 2009 @ 2:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler
You Mr. Davir, have just won 2 Internets.

Use them wisely.
http://img.chan4chan.com/img/2009-02-21/1235225809851.jpg
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Mike Masnick (profile), 5 Jul 2009 @ 5:28pm

Re: Re: Someone has gotten around to it.
Call us back when you understand what fair use really means.

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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ASH, 5 Jul 2009 @ 10:06pm

Re: Re: Re: Re:
"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?"

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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Mike Masnick (profile), 6 Jul 2009 @ 1:11am

Re: Re: Re: Re: Re:
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.

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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ASH, 6 Jul 2009 @ 1:55am

Re: Re: Re: Re: Re: Re:
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?
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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David Dock (profile), 6 Jul 2009 @ 2:00am

Ideas
If you give some thought to the great big picture and what scientists are finding out today on the very leading edge of quantum physics and the interaction between thought (ideas) and the fundamental stuff of the universe, the concept that an idea is unique to an individual is totally arrogant and egocentric. Nothing is ever brought into existence that did not always exist because it is always there in potential. reviews
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Mike Masnick (profile), 6 Jul 2009 @ 2:39am

Re: Re: Re: Re: Re: Re: Re:
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.

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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Anonymous Coward, 6 Jul 2009 @ 2:53am

Re: Re: Re: Re: Re: Re: Re: Re:
Protip: Based on sentence structure, they are not US-educated. Maybe India, Mexico, or another Germanic language. I wouldn't waste time on them unless you know something I don't.

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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ambulantic, 6 Jul 2009 @ 5:25am

Copyright dichotomy
I've been reading "remix" by Lessig. There the idea is that the distribution of something should be allowable if no profit is directly gained from the artefact, the something being a version of something already providing an income to someone. So the question is since when did the 1st Amendement become defence of income from a "creation" not wholely an artefact? It reminds me of the Bush Snr era issue of the use of the Stars n Stripes in artwork. I mean there's a whiff of precendent attainment in the air.
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Anonymous Coward, 6 Jul 2009 @ 6:25am

Re: Re: Re: Ideas
Faster than light drive is there in potential. Unfortunately, the gap between idea and invention is huge. Unicorns and dragons exist in abundance in idea, but in practice? You speak of philosophy, not of science, engineering or fact.
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Anonymous Coward, 6 Jul 2009 @ 6:28am

Re: Re: Re: You sir, are wrong.
Socialism is inherently anti-IP. Uniform distribution of the output of an individual is part of socialism. Recognizing the worth of the output of individuals (inventions, writings, etc.) is part of capitalism. Get your "isms" straight, please.
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Anonymous Coward, 6 Jul 2009 @ 6:30am

Re: Re: Re: You sir, are wrong.
How did you tie "intellectual property" to "rich companies"? In fact, about 1/3 of all patents are held by individual inventors rather than companies. Most of these inventors are middle class, though some are poor. Intellectual property and wealth are not synonymous.
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Anonymous Coward, 6 Jul 2009 @ 6:47am

Re: Re: Re: Re: You sir, are wrong.
I believe post-Reagonomics analysis indicates that "trickle down" economics not only worked, but created budget surpluses and an extended length of prosperity. Unfortunately, the dot com bust, Bush monkeying with the economy and the housing bust all pretty much toasted the economy. Note that "monopolies" had little or nothing to do with these issues - except to the extent that the government rules too often without the will of the people - or without the people expressing their will.
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Anonymous Coward, 6 Jul 2009 @ 6:52am

Re: James Bond
So, fundamentally, the commercial had at least 11 implementations, not ideas, from James Bond movies. I am far from being a copyright expert, but if you "borrow" 11 implementations from a well-known movie series, you are asking for trouble.

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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Anonymous Coward, 6 Jul 2009 @ 6:56am

Re: Re:
Kind of funny how many speakers copyright their works...
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C.T., 6 Jul 2009 @ 7:58am

Thoughtful
Mike.

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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Anonymous Coward, 6 Jul 2009 @ 8:29am

Re: Thoughtful
You mean, copyright covers copying so many portions of an implementation that, even though infringement is not literal, it appears that the original implementation is being copied? Who knew that could happen? So, copyright infringement is not for ideas, but copying so much of an implementation that it readily invokes the implementation.

Then we have the [mistaken] belief that the owners of James Bond somehow endorse Honda. Sounds like deceptive intent.
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Ryan, 6 Jul 2009 @ 9:23am

Re: Thoughtful
Okay...so which other aspects of writing fall within the "particular expression"? Structure? Grammar? Plot?

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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Anonymous Coward, 6 Jul 2009 @ 10:21am

Re: Re: Thoughtful
Here is an actual, honest, disagreement. One person claims that "implementation" is copying so much of a work that its only existence is because of the work it copies. Another person claims thatn when you copy names, personalities, history, etc., of a fictional character in a book, that these are not implementations, but "ideas."

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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Anonymous Coward, 6 Jul 2009 @ 10:30am

Re: Re: Thoughtful
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.

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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Ryan, 6 Jul 2009 @ 11:04am

Re: Re: Re: Thoughtful
My point in that statement was not that if you use a particular name in a work, that it can never be used again. It's that by merely using the name, that you don't have rights to the name(which, at least for now, seems to be safe for the most part in current copyright law). Someone else can still use the name because the rest of the their work is different.

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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Ryan, 6 Jul 2009 @ 11:12am

Re: Re: Re: Thoughtful
See my other reply but just to reiterate: I don't think you can just confine the 'idea' to the name. It's still an idea if the name is attached to a gender, to an age, to a nationality, to a profession, etc. Yes, the adventures become specific, but what is the line? It's all still just an idea--you can conceive of Bond and all his history in your head, but it means nothing to others until you put it down on paper for their amusement. I think it's fine to reference all of those things and utilize the character created by Fleming, just so long as you don't spend your work retelling the same stories without inputting new expression for the benefit of readers, and certainly not for telling all new stories with mere references to Bond's history.
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Anonymous Coward, 6 Jul 2009 @ 11:24am

Re: Re: Re: Re: Thoughtful
Ryan:

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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Anonymous Coward, 6 Jul 2009 @ 11:28am

Re: Re: Re: Re: Thoughtful
Ryan:

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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lawgeeknz, 7 Jul 2009 @ 7:15pm

Read first, comment later
Seems that a lot of comment on this decision feeds off media analysis (which often takes a particular perspective and therefore picks and chooses the quotes to suit). I always like to actually read ALL that the judge has to say and make my own mind up but I've been unable to actually locate a copy of the decision online.

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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Anonymous Coward, 10 Jul 2009 @ 9:01am

Re: The problem with copyright...
Every rhthym and beat of a song is protected because that recorded version of the song is protected.

As for the Harry Potter lexicon, I thought that court ruling was pretty wrongheaded.
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Elizabeth, 30 Oct 2010 @ 1:37am

Re: Re:
He has not taken the law out've context and is not the only individual to have queried the dichtomy between idea and expression.

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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