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
    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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