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<channel>
<title>Techdirt. Stories filed under &quot;expression&quot;</title>
<description>Easily digestible tech news...</description>
<link>http://www.techdirt.com/</link>
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<image><title>Techdirt. Stories filed under &quot;expression&quot;</title><url>http://www.techdirt.com/images/td-88x31.gif</url><link>http://www.techdirt.com/</link></image>
<item>
<pubDate>Thu, 10 Jan 2013 03:20:55 PST</pubDate>
<title>Man Who Gave Police The Finger Gets Federal Case Reinstated</title>
<dc:creator>Timothy Geigner</dc:creator>
<link>http://www.techdirt.com/articles/20130107/06395121592/man-who-gave-police-finger-gets-federal-case-reinstated.shtml</link>
<guid>http://www.techdirt.com/articles/20130107/06395121592/man-who-gave-police-finger-gets-federal-case-reinstated.shtml</guid>
<description><![CDATA[ The middle finger, or flipping the bird, or <i>digitus impudicus</i>, is a wonderfully universal way to let someone know what you think of them. We recently told you the story of a delightful woman who fashioned her <a href="http://www.techdirt.com/articles/20121228/06172221506/judge-rules-woman-is-allowed-to-flip-off-neighbors-with-xmas-lights-now.shtml">Christmas lights</a> into the gesture as a way to help her neighbors get into the holiday spirit. What I didn't realize is how many stories there are of people giving the bird to the police while driving around on streets. Quite frankly, it never occurred to me to be driving past someone who has the ability to make me miserable in so many different ways and give them the finger.
<br /><br />
But that's exactly what Vietnam veteran John Swartz of New York did, flipping off an officer and his speed gun as he drove past in 2006. He was subsequently pulled over and arrested for disorderly conduct. He's apparently been fighting back ever since and <a href="http://www.wired.com/threatlevel/2013/01/flipping-off-cop-case/">now his court case has been reinstated by a federal appeals court</a>, who didn't believe the arresting officer's explanation that he pulled the car over because he thought the middle finger was meant as an alert that the female driver, Swartz's wife, needed assistance.
<br /><br />
From the three judge panel:
<blockquote>
<i>Perhaps there is a police officer somewhere who would interpret an automobile passenger's giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.</i>
</blockquote>
On the one hand, it's good that a court recognized that there is no law against flipping off the police and that free speech should be protected from hysterically reaching justifications for revenge arrests like this. On the other hand, it's a little sad that a federal appeals court has to delve into such territory at all. Of course, none of this should be read as some embrace for flipping off police in general, but speech is speech and it should be protected. In any case, this isn't over yet and no date for trial has yet been set, so we'll have to wait for a verdict.<br /><br /><a href="http://www.techdirt.com/articles/20130107/06395121592/man-who-gave-police-finger-gets-federal-case-reinstated.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130107/06395121592/man-who-gave-police-finger-gets-federal-case-reinstated.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130107/06395121592/man-who-gave-police-finger-gets-federal-case-reinstated.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>digitus-impudicus</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130107/06395121592</wfw:commentRss>
</item>
<item>
<pubDate>Thu, 29 Nov 2012 09:45:00 PST</pubDate>
<title>Open Letter To Human Synergistics International In Response To Your Accusation That Techdirt Is Infringing</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121128/02492821166/open-letter-to-human-synergistics-international-response-to-your-accusation-that-techdirt-is-infringing.shtml</link>
<guid>http://www.techdirt.com/articles/20121128/02492821166/open-letter-to-human-synergistics-international-response-to-your-accusation-that-techdirt-is-infringing.shtml</guid>
<description><![CDATA[ To Silvie van Etten:
<br /><br />
Thank you for your letter on November 23rd, 2012, (which we have reposted below in its entirety, minus your contact info) in which you mistakenly suggest that Techdirt has infringed the copyrights of your company, Human Synergistics, via its post from October 5th, 2012, entitled <a href="http://www.techdirt.com/articles/20121005/08405820620/copyright-as-censorship-author-removes-blog-post-after-being-threatened-quoting-4-sentences.shtml">Copyright As Censorship: Author Removes Blog Post After Being Threatened For Quoting 4 Sentences</a>.  First of all, it is astounding that you do not appear to recognize the irony of threatening us over a blog post that goes into detail as to why someone else's use of a tiny snippet of your company's work was quite clearly fair use under US copyright law.  In fact, it leads one to wonder if you even read the post in question before sending your letter.
<br /><br />
Even if we ignore the question of whether or not that original blog post by Patti O'Shea constituted fair use, I can assure you that Techdirt's use is fair use. Furthermore, your claim that a lack of permission to quote your silly exercise (solely for the purpose of  explaining your overaggressive use of copyright law to censor people against your own best interests) is somehow "a direct violation of our copyright" is absolutely false.  It is not just false, but an exaggeration of the rights you hold under copyright law -- a situation called <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244" target="_blank">"Copyfraud"</a> by legal scholar Jason Mazzone. 
<br /><br />
While you appear to be in Germany, I note that Human Synergistics International is actually based in the US.  We, too, are a US company, with US servers, targeting a mostly US audience.  As such, the only copyright law that would reasonably apply is US copyright law, which has clear support for "fair use," especially when used in reporting and comment/criticism.  According to your LinkedIn page, your law degree is from the <a href="http://www.techdirt.com/articles/20110808/02404115428/how-to-make-mockery-your-own-law-school-sue-your-critics.shtml">somewhat infamous</a> Thomas M. Cooley law school in the US, so you must be familiar with US copyright laws, and fair use in particular.  While fair use laws are, at times, open to interpretation, there are few situations as obviously and clearly fair use as ours.  As such, we reject your claim that we have violated  your copyrights as well as your request to remove the quoted sections from our blog.  When something is fair use it neither requires permission nor is it infringement, your suggestion to the contrary notwithstanding.
<br /><br />
Our use is fair use and not infringing.  While courts are free to use their discretion in determining what constitutes fair use in the US, it is common to focus mainly on the four factors prescribed in copyright law.  Looking over those four factors, our use is without a doubt fair use.
<br /><br />
The first factor is the "purpose and character of the use."  Section 107 of the Copyright Act notes that fair use is explicitly "for purposes such as criticism, comment, news reporting." Our use of your text was, in fact, for all three.  We criticized your ridiculous abuse of copyright law to attempt to censor a website discussing your exercise.  We further commented on the matter, using the text in particular to show why your <i>original claim</i> of copyright infringement (leaving aside this latest attempt to double down) would likely fail on fair use grounds.  Finally, we clearly used the text in the course of news reporting, as we were reporting on your excessive behavior, which we believed (and still believe) was a newsworthy event.
<br /><br />
Furthermore, courts will often look at whether or not the use is "in the public interest" (see <a href="http://www.citmedialaw.org/sites/citmedialaw.org/files/2004-09-30-Order%20Granting%20Summary%20Judgment.pdf" target="_blank">Online Policy Group v. Diebold</a>).  Once again, this supports fair use, as it is clear that a company that chooses to abuse copyright law to silence public speech needs to be exposed publicly, so that others who may choose to do business with such a company know the sort of operation they are dealing with.  Given that it was in the public interest to expose your actions, we again stand by our assertion that our use was fair.  In addition, considering we were providing commentary on the over-aggressive nature of your initial takedown, there is no other way to accurately explain your abuse of copyright law without also sharing the brief snippet of text.  This, too, supports the fair use argument.
<br /><br />
Courts also explore whether or not the use is "transformative," (see: <a href="https://bulk.resource.org/courts.gov/c/US/510/510.US.569.92-1292.html" target="_blank">Cambell v. Acuff-Rose</a>). Once again, the answer is a resounding yes.  At no point were we seeking to use your content to have a bunch people sit around and actually take part in the exercise, but rather to specifically demonstrate your company's misuse of copyright law -- a purpose that is transformatively different from the purpose you appear to envision for the text.
<br /><br />
The second fair use factor is "the nature of the copyrighted works."  Again, this prong supports our claim that the use is fair and not infringing.  Our original post talked about how your company appears to abuse the purpose and the letter of copyright law to threaten and bully anyone who quotes a very tiny portion of a common "group training" exercise, involving stranded travelers and a small list of items which need to be prioritized for travel and survival.  As we noted in our original post, there are a variety of similar exercises, all based on the same premise.  That, alone, suggests that the short description of the exercise -- consisting of 4 sentences and 64 words -- has, at most, only weak copyright protection on the few new creative elements.  Furthermore, the "list" of items is, not unlike a "recipe," merely a list of facts and, for the most part, not copyrightable under US law.  Finally, part of the text that you ask us to delete is, in fact, something that we wrote, "she then lists out the items," rather than something from the text you claim copyright over.
<br /><br />
The third factor is "the amount and substantiality of the portion used."  Here, again, it supports that our use -- the tiny segment of the exercise that was quoted in our blog post -- is fair.  As anyone who has done one of these exercises knows full well, the point of the exercise is not the 4 sentence description, nor the list of items, but the actual group prioritization effort, combined with the "expert" prioritization that is often revealed at the end of the exercise in addition to various explanations of what the exercise means / what participants should have learned.  Since the amount that we copied was such a tiny part of the larger exercise, and a minor part of it, at that, this again weighs in favor of fair use.  Furthermore, even if you were to argue that we somehow did use a substantial portion, your argument would fail.   As the Supreme Court makes clear in <a href="https://bulk.resource.org/courts.gov/c/US/471/471.US.539.83-1632.html" target="_blank">Harper &#038; Row, Publishers, Inc. v. Nation Enters</a>, "substantial quotations might qualify as a fair use in a review of a published work or a news account."  Our use clearly was a news account.
<br /><br />
Finally, the last factor is "the effect of your use upon the potential market for the copyrighted work."  It's important to note here, (again referencing back to the Campbell case) that the courts are clear here that they are not addressing whether or not <i>the criticism</i> harms the market, but whether or not the direct use harms the market.  We freely admit that our criticism of your despicable copyright practices may lead organizations to think twice about doing business with your company.  But, as the Supreme Court noted, while "a scathing theater review kills demand for the original, it does not produce a harm cognizable under the Copyright Act."  In our case, the specific use of the text clearly does not harm the potential for your market, because we were not using it in a competitive manner at all.  No one would read our post and use that to administer the exercise in question.
<br /><br />
It's that last point that is the most bizarre in all of this.  The original blog post, by Patti O'Shea, which we were commenting upon, said nothing negative about your organization or the exercise, which she seemed to enjoy.  Most reasonable persons would actually have read it as an endorsement of the exercise itself, which would reflect well on you and could lead <i>more people</i> to wish to hire your organization or license the specific exercise details.  Thus, the end result of your bizarre copyright extremism is that you caused a blog post that would likely drive more business for you to be disappeared from the internet.  In response, you received criticism from us.  And, rather than change your ways, you have now dug yourself an even bigger hole by threatening us with what appears to be a clearly bogus threat.  So you have gone from one mostly positive blog post to an increasing series of negative blog posts criticizing your activities.
<br /><br />
It is unclear how that series of responses from you furthers Human Synergistics' business interests, which must be a part of your job.
<br /><br />
Finally, you should make yourself aware of the <a href="http://scholar.google.com/scholar_case?case=2209471029398314909&#038;hl=en&#038;as_sdt=2&#038;as_vis=1&#038;oi=scholarr">Lenz v. Universal</a> case, in which the courts have noted that copyright holders have an obligation to take fair use into account prior to issuing a takedown notice under copyright law.  While your initial notice is deficient in meeting the qualifications of a DMCA Section 512 takedown notice under copyright law, if you seek to send a complying takedown notice, understanding the implications of Lenz v. Universal would probably be wise.
<br /><br />
While I hope that this response, posted publicly on our site and sent to you directly, constitutes the end of this discussion, I have had this letter reviewed by multiple lawyers who are experts in copyright, fair use and free speech.  If you wish to continue this fruitless effort, I will be happy to put you in touch directly with lawyers who will be representing us in having a court disabuse you of your misunderstanding of copyright law.
<br /><br />
Sincerely,
<br /><br />
Michael Masnick<br />
CEO and Editor<br />
Floor64 Inc. and Techdirt<br /><br /><a href="http://www.techdirt.com/articles/20121128/02492821166/open-letter-to-human-synergistics-international-response-to-your-accusation-that-techdirt-is-infringing.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121128/02492821166/open-letter-to-human-synergistics-international-response-to-your-accusation-that-techdirt-is-infringing.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121128/02492821166/open-letter-to-human-synergistics-international-response-to-your-accusation-that-techdirt-is-infringing.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>fair-use,-learn-it,-love-it</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121128/02492821166</wfw:commentRss>
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<item>
<pubDate>Tue, 25 Sep 2012 15:57:00 PDT</pubDate>
<title>Once Again, If Someone Has The Same Lame Story Idea You Had, It's Not Copyright Infringement</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120921/00170720454/once-again-if-someone-has-same-lame-story-idea-you-had-its-not-copyright-infringement.shtml</link>
<guid>http://www.techdirt.com/articles/20120921/00170720454/once-again-if-someone-has-same-lame-story-idea-you-had-its-not-copyright-infringement.shtml</guid>
<description><![CDATA[ Over the years, we've noted time and time again that people seem to think that if a book, movie or TV show comes out that has some basic similarities to a project they worked on, it simply must be copyright infringement. But, of course, copyright is supposed to apply to specific expression, rather than mere ideas.  As we've noted, over the years, the line on this is unfortunately <a href="http://www.techdirt.com/articles/20110724/01370815220/ideaexpression-dichotomy-is-dead-judge-allows-photographers-lawsuit-against-rihanna-to-move-forward.shtml">blurry</a>, but for some cases, it's pretty clear that there's no infringement at all.  Such is the case in a legal fight over a Disney movie (direct to video, of course) about a dog who helps Santa Claus.  Three guys came up with a similar idea, which they wrote as a short story (it took <i>three</i> guys to come up with such an idea?) and then decided that the movie must have infringed on their copyright.  <a href="http://www.hollywoodreporter.com/thr-esq/disney-wins-dismissal-santa-paws-372746" target="_blank">It did not</a>.  I'll let THREsq's summary explain:
<blockquote><i>
The court acknowledged that the short story and the Disney movies had some elements in common: they all feature a threat to Christmas and a talking dog; all feature a dog named Paws, Santa Paws or Puppy Paws; they all have magical icicles; etc. There also is some similar dialogue. However, "apart from these abstract similarities, the remaining elements of the plaintiffs' short story and defendants' movies are substantially dissimilar," the court notes. "Furthermore, most of the aforementioned similarities between plaintiffs' short story and defendants' works are not protected by copyright law."
</i></blockquote>
While we can point to cases like this and say that the system is working, just the fact that such cases so often get filed shows a real problem.  We've so built up this perception of copyright-over-all and "ownership society" that people really do think that anyone having the same idea as them must have infringed -- and are so sure of it that they're willing to go to court.  That's a symptom of a much bigger problem with the system and the way people view it today.<br /><br /><a href="http://www.techdirt.com/articles/20120921/00170720454/once-again-if-someone-has-same-lame-story-idea-you-had-its-not-copyright-infringement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120921/00170720454/once-again-if-someone-has-same-lame-story-idea-you-had-its-not-copyright-infringement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120921/00170720454/once-again-if-someone-has-same-lame-story-idea-you-had-its-not-copyright-infringement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>just-saying</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120921/00170720454</wfw:commentRss>
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<item>
<pubDate>Tue, 11 Sep 2012 19:55:44 PDT</pubDate>
<title>Tweets... In... Space....</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120910/02244520324/tweets-space.shtml</link>
<guid>http://www.techdirt.com/articles/20120910/02244520324/tweets-space.shtml</guid>
<description><![CDATA[ I was just recently listening to Radiolab's excellent <a href="http://www.radiolab.org/blogs/radiolab-blogland/2012/aug/20/rebroadcast-space/" target="_blank">episode about "Space"</a>, which contains a really great talk with Ann Druyan, the widow of Carl Sagan, about how they worked together to produce a "record" that was shot into space with the original Voyager expedition (and about how they fell in love while doing so).  One of the things that's striking about that is how much thought went into figuring out what exactly to "send into space" and how much effort it took to then launch that message.  But, these days, it's getting easier and easier to communicate and easier and easier to send stuff into space.  So a pair of artists, Nathaniel Stern* and Scott Kildall, are doing something of an art project to see if they can <a href="http://tweetsinspace.org/" target="_blank">launch a bunch of tweets into space</a>:
<blockquote><i>
Tweets in Space beams Twitter discussions from participants worldwide towards GJ667Cc &#8211; an exoplanet 20 light years away that might support extraterrestrial life. Simply add #tweetsinspace to your texts between 8:30 and 9PM Mountain Time on September 21st 2012, as part of the International Symposium on Electronic Art in New Mexico (<a href="http://www.isea2012.org/">ISEA2012</a>). We will collect your tweets and transmit them into deep space via a high-powered radio messaging system. Our soon-to-be alien friends might receive unmediated thoughts and responses about politics, philosophy, pop culture, dinner, dancing cats and everything in between. By engaging the millions of voices in the Twitterverse and dispatching them into the larger Universe, <em>Tweets in Space</em> activates a potent conversation about communication and life that traverses beyond our borders or understanding.
</i></blockquote>
Perhaps it's not nearly as impressive as the record on the Voyager, but in some ways <i>that's</i> the point.  One of the amazing things about the communications revolution we're living through today is how anyone can communicate just about anything, no matter how banal.  Of course, mixed in with all of that are also some amazing insights and stories.  And they don't need gatekeepers choosing who passes them along.  Even if the likelihood of this project actually getting any tweets read by alien life forms is close to nil, conceptually, it's a fun idea that highlights how quickly the world of communications is changing.
<br /><br />
<i>* Disclosure: Stern and I went to college together and I consider him a friend, even if I haven't seen him in something like fourteen years.</i><br /><br /><a href="http://www.techdirt.com/articles/20120910/02244520324/tweets-space.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120910/02244520324/tweets-space.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120910/02244520324/tweets-space.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>an-art-project</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120910/02244520324</wfw:commentRss>
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<item>
<pubDate>Fri, 20 Jul 2012 07:26:00 PDT</pubDate>
<title>Couple Arrested For Dancing On NYC Subway Platform</title>
<dc:creator>Timothy Geigner</dc:creator>
<link>http://www.techdirt.com/articles/20120710/08455719645/couple-arrested-dancing-nyc-subway-platform.shtml</link>
<guid>http://www.techdirt.com/articles/20120710/08455719645/couple-arrested-dancing-nyc-subway-platform.shtml</guid>
<description><![CDATA[ Perhaps some day, if I manage to live long enough, somebody somewhere will be able to explain to me why the seemingly benign combination of dancing, cameras, and police tends to result in threats, beatdowns, and arrests. Recall a year ago when I had the privilege to write about protestors getting bodyslammed at the <a href="http://www.techdirt.com/articles/20110602/04271714524/do-little-dance-make-little-loveget-bodyslammed-tonight-jefferson-memorial.shtml">Jefferson Memorial</a> for the horrific crime of silently dancing on the premises? <br /><br />
Well, <a href="http://www.techdirt.com/profile.php?u=yakkowarner">Yakko Warner</a> writes in with the story of two nefarious characters, code named George Hess and Caroline Stern, who had the gall to dance on a New York City subway platform and <a href="http://www.nypost.com/p/news/local/manhattan/waltz_the_charge_officer_8jQ7kbvZwVhaU4PxNi917K#ixzz20DitOgl0">were taken to the ground and arrested for their trouble</a>. As that New York Post piece explains, the couple found themselves near a musician playing on steel drums: <blockquote><p><i>&ldquo;We were doing the Charleston,&rdquo; Stern said. That&rsquo;s when two police officers approached and pulled a &ldquo;Footloose.&rdquo;<br />&ldquo;They said, &lsquo;What are you doing?&rsquo; and we said, &lsquo;We&rsquo;re dancing,&rsquo; &rdquo; she recalled. &ldquo;And they said, &lsquo;You can&rsquo;t do that on the platform.&rsquo; &rdquo; <br /></i>
</p></blockquote><p>And so, as their training manuals surely instructed them to do, the officers demanded to see their IDs. Because they were dancing. Where someone was playing the drums. In the most cosmopolitan and culturally-rich city in America. In any case, when Hess could only produce a credit card (which had his name and photo on it), this happened:
<blockquote><p><i>"The officers ordered the couple to go with them &mdash; even though the credit card had the dentist&rsquo;s picture and signature. When Hess began trying to film the encounter, things got ugly, Stern said.&ldquo;We brought out the camera, and that&rsquo;s when they called backup,&rdquo; she said. &ldquo;That&rsquo;s when eight ninja cops came from out of nowhere.&rdquo;<br /></i>
</p></blockquote></p><p>The ninja cops then alledgedly tackled Hess to the floor, cuffed both of them, and detained the pair for twenty-three hours. The initial charge was apparently impeding the flow of traffic of what is reported to have been three other people on the platform. The police then added other charges, such as resisting arrest. </p><p>All charges were subsequently dropped when the paperwork was finally reviewed by the NYPD's Not Crazy Department. The couple are now suing in Manhattan courts, but maybe it's time a national memo went out to law enforcement agencies reminding them that dancing people with cameras don't necessarily need to be tackled?</p><br /><br /><a href="http://www.techdirt.com/articles/20120710/08455719645/couple-arrested-dancing-nyc-subway-platform.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120710/08455719645/couple-arrested-dancing-nyc-subway-platform.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120710/08455719645/couple-arrested-dancing-nyc-subway-platform.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>waltz-the-problem-with-dancing?</slash:department>
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<pubDate>Tue, 24 Apr 2012 15:55:00 PDT</pubDate>
<title>Author Discovers Assassin's Creed Uses Same Cliche'd SciFi Trope As His Book... Sues For Infringement</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120420/03272918575/author-discovers-assassins-creed-uses-same-cliched-scifi-trope-as-his-book-sues-infringement.shtml</link>
<guid>http://www.techdirt.com/articles/20120420/03272918575/author-discovers-assassins-creed-uses-same-cliched-scifi-trope-as-his-book-sues-infringement.shtml</guid>
<description><![CDATA[ Ah, ownership society.  We see this all the time with successful <a href="http://www.techdirt.com/articles/20110107/10015012572/court-dismisses-harry-potter-plagiarism-case-strains-credulity.shtml">books</a>, <a href="http://www.techdirt.com/articles/20111223/17122817184/can-you-keep-up-with-everyone-suing-over-how-avatar-stole-its-story.shtml">movies</a> and <a href="http://www.techdirt.com/articles/20090130/0226433580.shtml">TV shows</a> -- where suddenly someone (generally a complete nobody) discovers that a popular media vehicle is based on a similar generic idea that they once wrote about too... and they insist that the successful work must be infringing.  I guess we can add video games to that list as well.  Ubisoft has apparently <a href="http://www.gamesindustry.biz/articles/2012-04-18-ubisoft-sued-by-author-over-assassins-creed-copyright-infringement" target="_blank">been sued by an author you've likely never heard of</a>, John Beiswenger, who wrote some book whose premise has a vague similarity to the premise of Ubisoft's popular <i>Assassin's Creed</i> game.  Both stories apparently involve genetic memory -- the idea that memories can be passed down from your ancestors.
<br /><br />
But that seems to be about as far as the similarities go.  One would have hoped that a lawyer would have explained to Beiswenger that copyright only covers specific expression, rather than generic idea, but apparently that didn't happen.  Of course, as Julian Sanchez <a href="https://twitter.com/#!/normative/statuses/192756326630305793" target="_blank">points out</a>, the idea of "genetic memory" is such a common sci-fi trope that there's a whole page dedicated to listing out <a href="http://www.enotes.com/topic/Genetic_memory_in_fiction" target="_blank">stories that use the concept</a> -- many of which predate Beiswenger's book (and nearly all of which were significantly more successful).  Don't expect this lawsuit to go very far.<br /><br /><a href="http://www.techdirt.com/articles/20120420/03272918575/author-discovers-assassins-creed-uses-same-cliched-scifi-trope-as-his-book-sues-infringement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120420/03272918575/author-discovers-assassins-creed-uses-same-cliched-scifi-trope-as-his-book-sues-infringement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120420/03272918575/author-discovers-assassins-creed-uses-same-cliched-scifi-trope-as-his-book-sues-infringement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>genetic-history?-really?</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120420/03272918575</wfw:commentRss>
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<item>
<pubDate>Fri, 27 Jan 2012 08:25:00 PST</pubDate>
<title>UK Court Says You Can Copyright The Basic Idea Of A Photograph</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-you-can-copyright-basic-idea-photograph.shtml</link>
<guid>http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-you-can-copyright-basic-idea-photograph.shtml</guid>
<description><![CDATA[ We've talked a lot in the past about the "idea/expression dichotomy."  This is an important concept in copyright law that says you can only copyright the specific <i>expression</i>, and not the <i>idea</i>.  This is <i>supposed</i> to protect people from getting accused of copyright infringement for basically making something <i>similar</i> to what someone else made.  Unfortunately, as we've been noting with dismay over the past few years, the idea that there's some bright line between "idea" and "expression" has been slowly fading away, and courts are, increasingly, effectively wiping out the distinction.  In the US, we've seen this with the ridiculous case between a photographer, David LaChapelle, and the singer Rihanna, because some of her videos were clear <a href="http://www.techdirt.com/articles/20110724/01370815220/ideaexpression-dichotomy-is-dead-judge-allows-photographers-lawsuit-against-rihanna-to-move-forward.shtml">homages to his photographs</a>.  The expression was entirely different, but the judge didn't think so, and Rihanna ended up having to pay up.
<br /><br />
Over in the UK, though, we have an even more ridiculous ruling, as pointed out on <a href="http://boingboing.net/2012/01/25/insane-english-copyright-rulin.html" target="_blank">Boing Boing</a>, where a judge has ruled that a photograph using a similar <i>idea</i>, but totally different composition <a href="http://www.amateurphotographer.co.uk/news/photographers_face_copyright_threat_after_shock_ruling__news_311191.html" target="_blank">is infringement</a>.  You can see the two photographs here:
<center>
<a href="http://imgur.com/IDuO0"><img src="http://i.imgur.com/IDuO0.jpg" width=560 /></a>
</center>
As you can tell, the expression is totally different.  Obviously, the idea is quite similar, but ideas aren't supposed to be protected.  You can read <a href="http://www.bailii.org/ew/cases/EWPCC/2012/1.html" target="_blank">the full ruling here</a>, in which the court seems persuaded by the fact that the original photographer had to do some Photoshopping to the image.  Now, it's true that European copyright laws are much more open to "sweat of the brow" arguments for copyright (which is not the case in the US), but even so, this ruling is ridiculous and troubling.  The court even admits that the basic elements of the photograph (Big Ben, Parliament, London bus) are pretty common.  It also admits that highlighting an object in color on a black and white background is pretty common.  But it still finds that this is infringing.
<blockquote><i>
I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of cliched London icons.
<br /><br Although the techniques used by Mr Fielder to achieve the effect he did may have been simple, the result has an aesthetic quality about it which is the product of his own work. The blank sky serves to emphasise the buildings and gives the whole image a dramatic appearance and the bright red bus stands out even more prominently. This has been reproduced. The basic composition of the image has the Routemaster driving from right to left on the bridge but there is more to it than that. The bus is actually framed by the building. Although the framing is a little different in Annex 2, to my eye the essence of the framing effect has been reproduced. Although the bus is larger in Annex 2 than Annex 1, in both images the bus roughly in scale with the facade of the Houses of Parliament. Also the riverside facade of the building is a prominent feature. There are no other vehicles clearly visible and although there are some small people visible they are not prominent. This all gives the image an element of simplicity and clarity. 
</i/></i></blockquote>
What troubles me here is that this seems to turn the judge into <i>an art critic</i> in order to determine how the different pieces are put together and what counts as expression vs. idea, and what parts are "copied."  Perhaps even more troubling is the following sentence:
<blockquote><i>
Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word "monopoly" in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted. 
</i></blockquote>
While he's right that all intellectual property rights are a form of monopoly, the question here is whether or not this is an appropriate monopoly.  The reason Davis pointed out that this was a problem was because, as the court admitted earlier, the fact is that this would be creating a monopoly on <i>commonly used photographic elements</i>.  That's the problem.  Either way, it's yet another example of copyright law being used to lock up culture.<br /><br /><a href="http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-you-can-copyright-basic-idea-photograph.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-you-can-copyright-basic-idea-photograph.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-you-can-copyright-basic-idea-photograph.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>say-what-now?</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120126/10515817552</wfw:commentRss>
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<item>
<pubDate>Fri, 22 Jul 2011 19:39:00 PDT</pubDate>
<title>Is There A Difference Between Inspiration And Copying?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copying.shtml</link>
<guid>http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copying.shtml</guid>
<description><![CDATA[ We were just talking about the extremely fuzzy border between <a href="http://www.techdirt.com/articles/20110718/02155715123/what-ideaexpression-dichotomy-microsoft-sued-having-sorta-similar-commercials.shtml">idea and expression</a>, and how that leads to problems and the stifling of creativity.  Well, how about a similar discussion between "inspiration" and copying?  We hear this all the time.  Whenever we show widely accepted pieces of art that are actually quite similar to something earlier, defenders of copyright insist that this is fine, because it was just "inspired" by the original, rather than a direct copy.  But where's the border between inspiration and copying?
<br /><br />
Take this case, which was first called to our attention by <a href="http://c4sif.org/2011/07/at-what-point-does-inspiration-turn-into-copyright-infringement/" target="_blank">Stephan Kinsella</a>, in which photographer <a href="http://www.petapixel.com/2011/07/14/at-what-point-does-inspiration-turn-into-copyright-infringement/" target="_blank">Janine Gordon sued photographer Ryan McGinley</a> claiming that 150 of McGinley's images were "substantially based" on her own photos.  The site PetaPixel (linked above) has posted some of the "evidence," which should immediately make it clear how ridiculous this lawsuit is:
<center>
<img src="http://i.imgur.com/oGQip.jpg" />
<br />
<img src="http://i.imgur.com/6NkLk.jpg" />
<br />
<img src="http://i.imgur.com/P2uBZ.jpg" />
<br />
<img src="http://i.imgur.com/Wr1FU.jpg" />
</center>
Honestly, it's difficult for me to even say that McGinley's are "inspired" by Gordon's, let alone copies.  Yes, some of them cover similar subject matter, but is Gordon seriously claiming that only she has the right to show "a couple kissing passionately" if the "girl on the right has long silky straight brown hair and her eyes are closed"?  Separately, in that one, she highlights that the girl has high cheekbones, but I don't quite see how the high cheekbones are part of Gordon's copyright at all.  And the one of the guys jumping?  She's really claiming a copyright on the fact that arms are curving, and the <b>legs are in a v shape</b>?  I don't know if Gordon has looked at people's legs in a while, but they're all pretty much "in a v-shape" quite a lot.
<br /><br />
Gordon is apparently seeking $30,000  per infringement, which is the maximum statutory rate... though, to be honest, I'm surprised she isn't going for the full $150,000 by claiming these are "willful" infringement.  Either way, it's yet another example of how the state of "ownership culture" today leads people to think that they can lock up ideas, and anyone who does anything even remotely (perhaps very, very remotely) similar, somehow must owe them money.
<br /><br />
It's a sad statement on the state of culture today.<br /><br /><a href="http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copying.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copying.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20110718/02490115124/is-there-difference-between-inspiration-copying.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>I-think-so,-but...</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20110718/02490115124</wfw:commentRss>
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<pubDate>Mon, 18 Jul 2011 11:26:31 PDT</pubDate>
<title>What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20110718/02155715123/what-ideaexpression-dichotomy-microsoft-sued-having-sorta-similar-commercials.shtml</link>
<guid>http://www.techdirt.com/articles/20110718/02155715123/what-ideaexpression-dichotomy-microsoft-sued-having-sorta-similar-commercials.shtml</guid>
<description><![CDATA[ Copyright law is supposed to have an idea/expression dichotomy, in which the copyright only covers the <i>specific expression</i>, and not the idea.  We're often told this when we worry about the expansion of copyright law being used to block out ideas.  And yet, as we've <a href="http://www.techdirt.com/articles/20090629/0317365399.shtml">explained</a> in the past, it's not clear there's any <i>real</i> idea/expression dichotomy when it comes to copyright.  That's because, if a judge doesn't like something, he or she will often come up with some convoluted explanation for how the "expression" covers the basic idea.
<br /><br />
And, of course, once people begin to realize that there's no real idea/expression dichotomy, lawsuits begin to show up pushing the boundaries even further.  Take for example, this lawsuit, in which a novelty gift firm called Cellrderm has <a href="http://thenextweb.com/microsoft/2011/07/13/microsofts-sued-over-really-windows-phone-ads/" target="_blank">sued Microsoft and its ad agency</a>, CP&#038;B, for "copying" some of its commercials.   You can see the four commercial below, showing the (terribly produced) Cellrderm commercials, followed by the supposedly "infringing" Microsoft version:
<center>
Cellerdrm, Bedroom ad:<br />
<iframe width="560" height="349" src="http://www.youtube.com/embed/DlAZuQHpe4U" frameborder="0" allowfullscreen></iframe>
<br /><br />
Microsoft, Bedroom ad:<br />
<iframe width="560" height="349" src="http://www.youtube.com/embed/k6__UnrRSGo" frameborder="0" allowfullscreen></iframe>
<br /><br />
Cellerdrm, Urinal ad:<br />
<iframe width="560" height="349" src="http://www.youtube.com/embed/Sq4E_njDM4s" frameborder="0" allowfullscreen></iframe>
<br /><br />
Microsoft, Urinal ad:<br />
<iframe width="560" height="349" src="http://www.youtube.com/embed/7Z3KbFBf89Y" frameborder="0" allowfullscreen></iframe>
</center>
If you watch the ads, they may have (sorta, kinda) similar <i>ideas</i>, but the expression is way, way different in both cases.  And yet... Cellrderm is trying to claim that it actually copies the expression:
<blockquote><i>
The Microsoft Commercials copy both the sequence of events and the character interplay found in the Cellrderm Commercials.... The Microsoft Commercials also copy other copyrightable expression, including but not limited to clothing, gestures, character appearance, camera angles, and other visual elements from the Cellrderm Commercials.
</i></blockquote>
Yes, you read that right.  They're complaining that the <i>clothing</i> and <i>gestures</i> in these commercials was copyrightable.  One hopes that a judge will tell Cellrderm to stick to gag gifts, and get out of the gag lawsuit business.<br /><br /><a href="http://www.techdirt.com/articles/20110718/02155715123/what-ideaexpression-dichotomy-microsoft-sued-having-sorta-similar-commercials.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20110718/02155715123/what-ideaexpression-dichotomy-microsoft-sued-having-sorta-similar-commercials.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20110718/02155715123/what-ideaexpression-dichotomy-microsoft-sued-having-sorta-similar-commercials.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>oh-come-on</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20110718/02155715123</wfw:commentRss>
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<item>
<pubDate>Wed, 23 Feb 2011 14:56:00 PST</pubDate>
<title>Is Copying The Idea For A Magazine Cover Infringement?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20110222/12002913212/is-copying-idea-magazine-cover-infringement.shtml</link>
<guid>http://www.techdirt.com/articles/20110222/12002913212/is-copying-idea-magazine-cover-infringement.shtml</guid>
<description><![CDATA[ We're always told by copyright system defenders that there's an "idea/expression dichotomy" in copyright law that prevents copyright from really getting in the way of free speech.  This is <i>supposed</i> to mean that it's perfectly fine to copy the <i>idea</i>, so long as you don't copy the fixed expression of that idea.  In practice, this gets a lot <a href="http://www.techdirt.com/articles/20090629/0317365399.shtml">trickier</a>, with courts seeming to find all sorts of copied "ideas" infringing, even if they don't copy specific expression.  So where is the line?
<br /><br />
The folks at Chicago Magazine are apparently quite upset and are <a href="http://www.chicagomag.com/Chicago-Magazine/The-312/February-2011/Krasnodar-Magazine-in-Russia-Copies-from-Chicago-magazine/" target="_blank">calling in the lawyers</a> after discovering that a magazine in a small Russian city, called Krasnodar, copied the idea for the cover of a recent issue of the local magazine.  There's no doubt that the idea was copied:
<center>
<img src="http://i.imgur.com/K63Fk.jpg" width=225 /><img src="http://i.imgur.com/0q4EU.jpg" width=225 />
</center>
The guy behind the Russian magazine (who happens to be an American from Boston) seems perfectly willing to admit that he copied the idea, noting:
<blockquote><i>
"This is a tempest in a teapot if I've ever seen one. All creative inspiration is derivative. Some more so than others."
</i></blockquote>
Chicago Magazine seems to think it's a bit more serious, and claim that this is a violation of its copyright:
<blockquote><i>
There is a difference between a work that is inspired by another and one that is copied. Copyright laws are written to enforce that difference, and our lawyers are sending Krasnodar magazine a stern note.
</i></blockquote>
So, where is the line?  As far as I can tell, the specific expression here is different.  The idea is obviously copied, but the execution is different.  Is it infringement?  And, if so, where is that line between idea and expression?<br /><br /><a href="http://www.techdirt.com/articles/20110222/12002913212/is-copying-idea-magazine-cover-infringement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20110222/12002913212/is-copying-idea-magazine-cover-infringement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20110222/12002913212/is-copying-idea-magazine-cover-infringement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>idea-vs.-expression</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20110222/12002913212</wfw:commentRss>
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<pubDate>Thu, 2 Dec 2010 04:17:12 PST</pubDate>
<title>Do We Want To Monetize Every Business Idea?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20101129/00061812029/do-we-want-to-monetize-every-business-idea.shtml</link>
<guid>http://www.techdirt.com/articles/20101129/00061812029/do-we-want-to-monetize-every-business-idea.shtml</guid>
<description><![CDATA[ For many years we've pointed out that <a href="http://www.techdirt.com/articles/20080604/0223551307.shtml">ideas are easy</a> but execution is hard.  Unfortunately, as a society, we seem to romanticize and celebrate the idea over the execution -- and our policies, such as patent policies -- codify that into law.  This is unfortunate -- especially for anyone who has actually executed and built a real business, since you quickly learn that the original idea is quite frequently meaningless by the time you build a successful business.  Earlier this year, we noted that Dilbert creator Scott Adams had <a href="http://www.techdirt.com/articles/20100604/0954389689.shtml">jumped on board</a> the whole "ideas vs. execution" dichotomy, and he's apparently still working that theme.
<br /><br />
In a recent blog post, he not only reiterated the "ideas are worthless, execution is everything" claim but tried to take it further by suggesting (as an idea) that it might help if there was a business to <a href="http://www.dilbert.com/blog/entry/?EntryID=526" target="_blank">bring ideas together with people to execute</a>.  Now, of course, this is just an idea and, according to Adams' own rules, it's pretty worthless.  My guess is that if people tried to execute on this particular idea, they'd find that it didn't work quite the way Adams' predicts (which is sort of the point).  The basic idea is that people with ideas would tape themselves in a video talking about the idea and then others who might provide related services -- such as management, capital, legal, sales, etc. -- could join up.  If a "complete team" was put together via this system, then they could go execute.  The concept is to remove some of the inefficiency in executing.
<blockquote><i>
In my imagined future, you start by making a home video of yourself pitching your idea, just as you would to an investor. You upload your video, along with a detailed description of your idea, to a web site where other entrepreneurs around the world are doing the same thing. But instead of simply soliciting funding, you solicit an entire team, based on whatever skills your business requires. The key to making this work is that no one quits his existing job, or provides funding, until all of the resources for the idea are lined up. The main function of the system is making sure everyone's conditions for participation have been met before any risks are taken.
<br /><br />
Now imagine that the legal contracts for your new business partners are based on standardized agreements that have been created by the online business to be fair to both sides. There's no wrangling about the legal details. All you need to agree on are the "fill in the blank" stuff, such as who does what, and for what equity or salary. Likewise, the funding agreements are standardized.
<br /><br />
As the entrepreneur, you might have a hundred people vying for the job of marketing for your new company. Each person would submit a resume, perhaps some text on how they would approach this specific job, and a minimum compensation requirement. The entrepreneur might choose a marketing expert with weaker experience to keep payroll low, which might in turn cause another potential team member to back out if he thinks the marketing person is too weak for the job. This process of adding and subtracting potential team members would repeat until everyone was happy with the contribution and compensation of everyone else. And during the process, all potential team members could communicate with each other to negotiate deals and refine the idea.
</i></blockquote>
Of course, to some extent, things like this have already been tried.  There are incubators out there.  There are standard legal forms.  There are all sorts of entrepreneurial groups that try to bring such people together.  But, for the most part, they don't seem to work all that well -- and a big part of the reason for that is the basic worthlessness of ideas.  For an idea to really be executed, you don't just need the ten pieces that Adams lists out -- you need a real champion.  Ask most angel investors and venture capitalists what they invest in, and it's not the idea but, quite frequently, it's the team and their overall ability to execute.  Working on a startup with cofounders is, in many ways, similar to a marriage.  Making sure those people can actually execute well together is a key part of it -- and this setup seems to minimize that, again focusing on the "idea" as the central focal point.
<br /><br />
In reality, however, if you're so focused on the idea, when the market changes or reality sets in, the team is less able to adjust and to change and to adapt.  Adams' basic premise is correct: ideas are worthless compared to execution but the response to that is aiding with execution in a way that lets people adapt quickly over time, rather than still setting up the key "idea" as the focal point.
<br /><br />
In the end, I tend to think Adams' idea for "monetizing" ideas is about as likely to work as the following idea from another well-known comic creator, Randall Munroe, whose <a href="http://xkcd.com/827/" target="_blank">recent xkcd</a> covers the same topic from a slightly different angle:
<center>
<a href="http://xkcd.com/827/"><img src="http://imgs.xkcd.com/comics/business_idea.png" title="We didn't believe you at first, but we asked like three people who were at that party. They not only corroborated your story, but even said you totally mentioned wanting to start a company someday. Sorry! If this isn't enough money, let us know." alt="Business Idea" width=560/></a>
</center><br /><br /><a href="http://www.techdirt.com/articles/20101129/00061812029/do-we-want-to-monetize-every-business-idea.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20101129/00061812029/do-we-want-to-monetize-every-business-idea.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20101129/00061812029/do-we-want-to-monetize-every-business-idea.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>not-really-sure-that-makes-sense...</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20101129/00061812029</wfw:commentRss>
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<pubDate>Wed, 22 Sep 2010 16:31:00 PDT</pubDate>
<title>Judge Recognizes Separation Of Idea &#038; Expression; Rules That Disturbia Didn't Infringe On Rear Window</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100922/01243011101/judge-recognizes-separation-of-idea-expression-rules-that-disturbia-didn-t-infringe-on-rear-window.shtml</link>
<guid>http://www.techdirt.com/articles/20100922/01243011101/judge-recognizes-separation-of-idea-expression-rules-that-disturbia-didn-t-infringe-on-rear-window.shtml</guid>
<description><![CDATA[ We've complained in the past that the so-called "idea/expression dichotomy" that's supposed to protect copyright law from <a href="http://www.techdirt.com/articles/20100914/21345411016.shtml">violating the First Amendment</a> seems to be getting so blurry as to <a href="http://www.techdirt.com/articles/20090629/0317365399.shtml">barely exist</a> in some arenas.  Thankfully, it seems that some courts still understand this.  A district court has <a href="http://news.yahoo.com/s/nm/20100922/lf_nm_life/us_disturbia_1?utm_source=twitterfeed&#038;utm_medium=twitter" target="_blank">rejected a copyright claim against Steven Spielberg and DreamWorks</a> by the trust that owns the rights to the Cornell Woolrich story, <i>Rear Window</i>, which they claim Spielberg infringed with the movie <i>Disturbia</i>.
<br /><br />
There's no doubt that there are some similarities between <i>Disturbia</i> and <i>Rear Window</i> (which was also, famously, made into a Hitchcock film in the 50s... with a license).  It seems like pretty much every review of <i>Disturbia</i> pointed that out.  But, there's a difference between being <i>similar</i> and being a <i>copy</i>.  Even if it's based on the same <i>idea</i>, that doesn't mean it's copying any of the <i>protectable expression</i> from the original.  And, that's what the judge found in this case:
<blockquote><i>
"The main plots are similar only at a high, unprotectible level of generality," New York District Court judge Laura Taylor Swan wrote in her ruling that dismissed the complaint.
<br /><br />
"Where 'Disturbia' is rife with sub-plots, the short story has none. The setting and mood of the short story are static and tense, whereas the setting and mood of 'Disturbia' are more dynamic and peppered with humor and teen romance," the judge added.
</i></blockquote>
 While this is appears to be a good ruling that understands these issues, it's still a bit troubling that this whole setup often turns judges into <i>critics</i>, concerning the level of similarities.  Last year, of course, in a similar case, a court <a href="http://www.techdirt.com/articles/20090702/0125045432.shtml">banned the publication</a> of a book that was an unofficial sequel to <i>Catcher in the Rye</i>.  It seems clear that such a situation also may have used similar ideas and plot points -- but did not copy the specific expression.  Unfortunately, the judge-as-critic in that case decided otherwise, leading the US court system to ban a book (something that's not supposed to happen).
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<slash:department>nice-to-see</slash:department>
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<pubDate>Fri, 21 May 2010 05:57:32 PDT</pubDate>
<title>Yet Another Person Sues, Claiming James Cameron Copied The Idea For Avatar</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100520/0217349506.shtml</link>
<guid>http://www.techdirt.com/articles/20100520/0217349506.shtml</guid>
<description><![CDATA[ People really have an incredible ability to assume that only they could possibly have a very common idea.  Lots of people have pointed out that James Cameron's <i>Avatar</i> seems similar to all sorts of stories.  In fact, the site io9 put together a <a href="http://io9.com/5460954/the-complete-list-of-sources-avatars-accused-of-ripping-off" target="_blank">giant list</a> of books and movies that some claimed were copied by Cameron.  And, of course, we've already mentioned <a href="http://www.techdirt.com/articles/20100310/0245268495.shtml">two separate lawsuits</a>.  Well, now we can add <a href="http://thresq.hollywoodreporter.com/2010/05/avatar-ripoff-lawsuit.html?utm_source=twitterfeed&#038;utm_medium=twitter' target="_blank">a third one to the list</a>, and it has just as much a chance to succeed as the others.  In this case, it's made even more ridiculous by the fact that the book in question was written <i>after</i> Cameron was already working on <i>Avatar</i>.
<br /><br />
In most of the cases with these types of lawsuits, it seems like those suing are really just filing what they likely know is a bogus lawsuit to get publicity for their book/movie/etc. (which is why we're not naming the book in this case).  But, it does highlight an important point that we've discussed plenty of times in the past: lots of people have ideas that are similar.  Ideas, by themselves, are neither unique nor protectable.  It's the execution or (within the copyright realm) the expression that is unique.  Yet, too many people overvalue the idea and assume that only they could possibly have had it.  The <i>idea</i> behind the story of Avatar is pretty simplistic and common, really.  It's been done plenty of times before.  The reason the movie is getting so much attention is because of the execution.<br /><br /><a href="http://www.techdirt.com/articles/20100520/0217349506.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20100520/0217349506.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20100520/0217349506.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>and-on-and-on-and-on</slash:department>
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<pubDate>Mon, 3 May 2010 08:57:00 PDT</pubDate>
<title>Catcher In The Rye Sequel Fight Could Lead To Forced Licensing Rather Than Injunctions In Some Copyright Suits</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100502/2139279268.shtml</link>
<guid>http://www.techdirt.com/articles/20100502/2139279268.shtml</guid>
<description><![CDATA[ You may remember that last year, before he died, JD Salinger <a href="http://www.techdirt.com/articles/20090602/0734325094.shtml">sued</a> the author of an unofficial "sequel" to <i>The Catcher in the Rye</i>, called <i>Coming Through the Rye</i>, which had already been published overseas, but was slated for publication in the US.  Pretty much everyone agrees that this unofficial sequel isn't particularly good, and it likely would have quickly faded into obscurity if Salinger hadn't brought the lawsuit.  Instead, however, a court <a href="http://www.techdirt.com/articles/20090804/1129495769.shtml">banned the publication</a> of the book, claiming it was copyright infringement.
<br /><br />
This is <i>massively</i> troubling if you believe in the First Amendment.  Just think about it for a second: this is a book that was published around the world, but is banned in the US -- the supposed bastion of freedom of speech and expression.
<br /><br />
The problem is that, despite the fact that copyright is <i>supposed</i> to recognize the difference between the idea and the expression (and only protect the specific expression), lately the courts have been <a href="http://www.techdirt.com/articles/20090629/0317365399.shtml">blurring that distinction massively</a>.  If you honestly believe that copyright only protects the expression -- as the courts have said -- then someone creating a totally different expression should not... no, <b>cannot</b> be barred.  But, the reality is that many people -- including some judges -- don't seem to recognize the difference between an idea and an expression, and what copyright is supposed to cover.
<br /><br />
Anyway,  <a href="http://yourpredator.com" target="_blank">Esahc</a> points us to the news that the lawsuit <a href="http://thresq.hollywoodreporter.com/2010/04/catcher-in-the-rye-copyright-case-to-be-reconsidered.html" target="_blank">has been sent back to the district court</a> by the appeals court, to determine whether or not the publication of the unauthorized sequel would cause any "harm" to the original publication.  However, the reasoning here is a bit surprising.  The court <i>did not</i> find any problems with the copyright infringement ruling -- and, in fact, claimed that it thought Salinger (and his estate) would likely prevail on that point if the case was appealed.
<br /><br />
Instead, the Appeals Court simply questioned whether or not the <i>injunction</i> was the proper response to the infringement, and told the lower court to apply the rules the Supreme Court set out in the <a href="http://www.techdirt.com/articles/20060515/118257.shtml">MercExchange ruling</a> four years ago.  This is a bit surprising, since MercExchange focused on whether or not injunctions were the proper response in <i>patent</i> cases, not necessarily copyright -- but it does appear that various courts have been trying to apply MercExchange to other types of cases.  As such, the test that the court needs to decide is whether or not Salinger's estate would suffer  "irreparable harm," if the publication of the unauthorized sequel went forward.  That might be a very difficult standard to live up to, as I can't see any harm at all caused by the sequel (in fact, I would imagine the opposite would occur, in that it would drive more interest in the older book).
<br /><br />
So what might that mean?  If the MercExchange patent rulings are any indication, if the courts find that the unauthorized sequel did infringe on copyrights, it could require the author and his publisher to pay a set fee to the Salinger estate, and still allow the publication -- creating a de facto compulsory license.  Actually, the book <a href="http://books.google.com/books?id=7Bjmb_u1G9wC&#038;printsec=frontcover&#038;dq=no+law&#038;hl=en&#038;ei=Tm7eS4CRPIvY7AO5nKylBg&#038;sa=X&#038;oi=book_result&#038;ct=result&#038;resnum=1&#038;ved=0CDYQ6AEwAA" target="_blank"><i>No Law</i></a>, has argued that just such a result would actually bring copyright law much more in line with the First Amendment -- allowing people to be free to express themselves, but requiring they pay up if they infringe.  However, it would represent a pretty major shift in copyright law.  You can read the full decision below -- and here's a <a href="http://www.prnewswire.com/news-releases/court-overturns-jd-salinger-book-ban-92534169.html" target="_blank">press release</a> from the publisher, hyping up the ruling much more than it deserves.  The Salinger estate will almost certainly push for the injunction to be put back in place, and we'll have to see what the court decides, before we know if this book ever gets published in the US.  But just the fact that it's saying the MercExchange rules should be used for copyright infringements is a big, big deal.
<center>
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 ]]></description>
<slash:department>mercexchange-for-copyright?</slash:department>
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<pubDate>Wed, 30 Sep 2009 14:34:00 PDT</pubDate>
<title>Coldplay Sued Again For Copyright Infringement... But Is It Actually A PR Stunt By No Name Musician?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20090930/1345176375.shtml</link>
<guid>http://www.techdirt.com/articles/20090930/1345176375.shtml</guid>
<description><![CDATA[ The more successful you are, the more likely you are to get sued over some bogus claim of copyright infringement, it seems.  Having just <a href="http://www.techdirt.com/articles/20090914/0258286177.shtml">settled</a> a <a href="http://www.techdirt.com/articles/20081205/1146593034.shtml">silly lawsuit</a> from Joe Satriani, it seems that others are stepping forward to see if Coldplay will settle with them.  This latest one is seriously ridiculous.  Peter Friedman has the details of a guy who is suing Coldplay for copyright infringement, because in a recent video <a href="http://blogs.geniocity.com/friedman/2009/09/ideas-originality-and-copyright-coldplay-accused-of-infringement-again/" target="_new">they used the idea of interacting with things happening on a chalkboard</a>.  Seriously.  Check the two videos out:
<center>
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<br><br>
<object width="425" height="349"><param name="movie" value="http://www.youtube.com/v/LvEuvtBBG0s&rel=0&border=1&color1=0x6699&color2=0x54abd6&hl=en&feature=player_embedded&fs=1"></param><param name="allowFullScreen" value="true"></param><param name="allowScriptAccess" value="always"></param><embed src="http://www.youtube.com/v/LvEuvtBBG0s&rel=0&border=1&color1=0x6699&color2=0x54abd6&hl=en&feature=player_embedded&fs=1" type="application/x-shockwave-flash" allowfullscreen="true" allowScriptAccess="always" width="425" height="349"></embed></object>
</center>
The <i>only</i> thing in common is the concept of interacting with chalk on a wall.  Even the actual themes of the video are entirely different.  And, of course, there have been many other videos predating this other guy's.
<br><br>
My guess is that the guy suing knows all of this (or had a lawyer explain it to him), but he's still suing for one reason: because it may get his video and his name some attention (which is why we're not naming him directly in this post).  These are the types of lawsuits for which there should be serious sanctions against those bringing them.  It's almost certainly a bogus lawsuit.  Copyright doesn't cover an idea, and the idea itself wasn't even that original.  The videos are entirely different.  This has a high likelihood of simply being abuse of copyright law and the court system because some unknown musician wants extra attention.<br /><br /><a href="http://www.techdirt.com/articles/20090930/1345176375.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20090930/1345176375.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20090930/1345176375.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>idea-expression-anyone?</slash:department>
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<pubDate>Thu, 2 Jul 2009 19:27:00 PDT</pubDate>
<title>Is There Really An Idea/Expression Dichotomy In Copyright?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20090629/0317365399.shtml</link>
<guid>http://www.techdirt.com/articles/20090629/0317365399.shtml</guid>
<description><![CDATA[ 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 <a href="http://www.yalelawjournal.org/112/1/1_jed_rubenfeld.html">notoriously difficult</a> this distinction is in practice, leading to serious questions about <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=267848" target="_new">how copyright violates the First Amendment</a>.
<br /><br />
The latest example of this is the <a href="http://www.techdirt.com/articles/20090702/0125045432.shtml">ruling</a> banning the publication of the "modern" sequel to <i>The Catcher in the Rye</i>.  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 <a href="http://www.againstmonopoly.org/index.php?perm=593056000000001176" target="_new">wonder where that mythical idea/expression dichotomy really exists</a>:
<blockquote><i>
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.
<br /><br />
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.
<br /><br />
I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels. 
</i></blockquote>
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.<br /><br /><a href="http://www.techdirt.com/articles/20090629/0317365399.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20090629/0317365399.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20090629/0317365399.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>it's-difficult-to-see</slash:department>
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