Re: lawsuit on copying ideas

On Sun, 26 Mar 2000, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
>
> Strictly speaking, any idea per se is uncopyrightable, of course.

Good. Glad we agree on this. And don't we want to speak strictly when talking law?

> However, it is not that simple. An idea is not well defined
> and the boundary between idea and expression is arbitrary.
> What is an idea to a judge may be an expression to another
> judge. What is an expression to a judge may be an idea to
> another judge. Judges have to rely on their feelings and
> guidances and even misguidances from the plaintiffs,
> defendants, other court cases and decisions, and
> legal scholars.

True enough. But it doesn't change the rule. It changes the application of the rule and makes it have very fuzzy lines. Relatively little in the area of copyright is susceptible to bright line tests.

> When I speak of "specific ideas", I am speaking of many
> specific things such as specific plots, specific characters,
> specific concepts, specific actions, specific sequences of
> anything, and so on.

So it becomes an Alice in Wonderland Humpty Dumpty problem -- a question of who is the master -- you or the words.

Furthermore, many of these things are scenes a faire and stock items which are not protectible -whether idea or expression. The idea/expression dichotomy is not the only filtering principle in copyright.

> Is a plot in a story an idea or expression? The answer is
> both and it is entirely up to a judge to make the call.

Well, at times it is a jury question.

> At the top of the hierarchy system of all known plots ever
> devised on the earth, the plots are very general that they are
> not copyrightable. The judges will recognize them as ideas.
> As we go down through the branches, the plots become more
> specific (which is what I mean by "specific ideas"). They
> have increasing chance of being recognized as expressions
> by the judges. At the bottom, all very unique plots are never
> recognized as ideas even though they are descended from the
> ideas at the top. Where a judge should draw a boundary
> across the hierarchy system is anybody's guess.

Learned Hand made this point quite a bit more elegantly some 60 years ago or so. Though the idea is not so much hierarchy as levels of abstraction.

> The statement that all ideas are uncopyrightable is simply
> unworkable in the reality.

Once again it is the Humpty Dumpty problem - and this statement ignores the distinction between the legal term "idea" and the colloquial usage of the term.

> Else, I would go in a library, borrow a novel, go home, open it,
> harvest 1,000,001 specific ideas from it, return the novel back
> to the library, go home again, and create a new novel in my own
> words using the same harvested 1,000,001 ideas. Because my new
> novel is so similar to the original novel even though I do not
> copy any expression from the original novel and even though my
> new novel is wholly based on specific ideas, any judge will
> declare that I infringe the original novel's copyright. Nimmer
> has a fancy name for it: "Comprehensive Nonliteral Similarity".

One of the constant tensions in copyright arises from the problem of non-literal copying and another is the copying of discrete elements or pieces of a whole. But calling each element of a story an "idea" doesn't help understanding or analysis - and doesn't prove anything but that the law in this area is mushy and fuzzy.

But that is hardly news. And the difficulty of using the idea/expression dichotomy for non-literal copying is not news.

But the examples used and the conflation of one test for another and the conflation of the legal term with the colloquial term does not help understanding or use of the law.

The dichotomy is with us and no one has come up with a way to avoid it.

I'm glad that Mr. Riolo understands that the idea/expression dichotomy is not a bright line test; no copyright expert has ever thought it was.

But no matter what Mr. Riolo says, copyright is not about protecting ideas; it is about protecting original expression of ideas. As soon as one gets beyond literal copying, it gets complicated. And the idea/expression dichotomy is only one of the tools used to sort it all out - a critical, fundamental tool - but still only one of the tools.

--
Prof. Steven D. Jamar, Director LRW Program              vox:  202-806-8017
Howard University School of Law                          fax:  202-806-8428
2900 Van Ness Street NW                        mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008        http://www.law.howard.edu/faculty/pages/jamar/

Essay: A loose sally of the mind; an irregular indigested piece; not a
regular and orderly composition. 

Samuel Johnson, Dictionary (1755)