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.

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


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  1. identicon
    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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