Is There Really An Idea/Expression Dichotomy In Copyright?

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

Copyright system defenders often trot out the commonly accepted wisdom that copyright does not protect "ideas" and that there's an important "idea/expression" dichotomy, where it's only the specific expression that's protected, not the ideas. However, the reality is that both individuals and courts seem to have a pretty difficult time distinguishing between the two, and always have. While perhaps there's some platonic ideal where it's easy to tell the difference between an idea and the expression of that idea, it's much harder in practice. Recent studies have shown how notoriously difficult this distinction is in practice, leading to serious questions about how copyright violates the First Amendment.

The latest example of this is the ruling banning the publication of the "modern" sequel to The Catcher in the Rye. If there really were a distinction between the idea and the expression, then a sequel would never be seen as infringing, unless it used significant text directly from the original. Yet, in this case, the ban on publication is making some wonder where that mythical idea/expression dichotomy really exists:
First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.

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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  1. icon
    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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