Maximalist shell-game (was Re: ELDRED)

On Monday, January 27, 2003, at 12:15 PM, Dodi Schultz wrote:

>
> Edward Barrow writes (in reply to my message noting that only expression
> enjoys protection),
>
>>> ... where does the outer protected expression, the work of creative
>>> writers both fiction and non-fiction, end; and the inner,
>>> non-protected, idea, knowledge or information expressed begin?
>
> I don't see why you have a problem ascertaining this. As a nonfiction
> writer, I haven't had any, either as pertaining to material I consult in
> research or to my own writings.
>

Note how the maximalist shell-game works. Those who love long copyright terms tell us not to worry, copyright only reaches to "expression", never to
"ideas". Those who want to broaden the scope of copyright tell us not to worry, copyrights always expire.

An example of this latter type of shell-shifting is found in Jonathan S. Katz,
"Expanded Notions of Copyright Protection: Idea Protection within the Copyright
Act", 77 Boston University Law Review, October, 1997, in which Mr. Katz fulsomeley sings the praises of some cases that found infringenment where,
in his analysis, an earlier generation would have found no infringement on the
basis of idea/expression or some related doctrine. One example Katz cites is
the "total concept and feel" case, Roth Greeting Cards v. United Card Co. (429 F. 2d 1106, 9th Circuit 1970).

  Another case that Katz admires is the Pufnstuf/McDonaldland case, Krofft v. McDonald's (562 F. 2d 1157,9th Circuit 1977.) Katz also likes the outcome in a subsequent case,
Shaw v. Lindheim, (919 F.2d 1353, 9th Circuit, 1990) that applied the Krofft doctrine to
find that

		there were substantial similarities between the two works
		in terms of characters, plot, dialogue, mood, setting, sequence,
		and pace.  In finding that the defendant infringed...the court
		granted protection to a character whose main characteristics
		were that he was a well-dressed person with expensive tastes,
		remained calm under pressure, and wanted to even up the odds
		for the "little guy" by providing assistance when conventional law
		enforcement had failed.  This type of character sounds like many
		other stock action heroes that certainly would not have passes the
		old "story being told" test, and previously would not have been
		eligible for protection.

Katz's centerpiece case is MGM v. Honda, (900 F. Supp.1287, C.D. Calif 1995), in
which a car commercial was found to likely enough to infringe MGM's copyright in
James Bond that the court granted a preliminary injunction. The accused commercial
"depicts a fast-paced, high-tech chase scene in which a young, well-dressed couple
driving a Honda Del Sol are chaced by a 'grotesque villain with metal-encased
arms' who leaps from a helicopter onto the car's roof. The couple escapes when the
tuxedo-clad man releases the car's detachable roof, 'sending the villain into space
and effecting the couple's speedy get-away'".

Katz proposes that "courts...should recognize and welcom the current shift in the line
between idea and expression and protect more 'idea' than ever before". He relies on
the maximalist shell-game to reassure those who view this proposal with alarm rather
than delight:

		Opponents of this interpretation would also argue that it prevents
		the creation of new works because all works necessarily borrow
		elements from the past.  However, copyright is not perpetual....
		Therefore, this interpretation of the constitutional language allows
		authors to profit from their ideas, while at the same time giving
		others an incentive to find and exploit new ideas during the
		period of copyright protection for the work.

So, as noted above, when someone objects that copyright is too long, the maximalists
say, "don't worry, copyright only protects expression". When someone objects that the
line between idea and expression is being drawn in a way that is too generous to
plaintiffs, they say "don't worry, copyright is temporary."

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri Jan 31 2003 - 12:42:13 GMT