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
    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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