Trotter Hardy <thardy[_at_]mail.wm.edu> writes:
>If a court wants to declare that a copyrightable interface has
>become so useful to the public that it can no longer receive
>copyright protection, then the court should ask the executive
>branch to initiate condemnation proceedings, set a fair market
>value on the interface (which presumably will be quite high,
>since everyone is asserting that they must have that interface
>and no other), and pay that price to the originator. That's the
>Constitutional way of turning private property over to public
>use.
Trotter, let me suggest to you that the entire scenes a faire doctrine makes uncopyrightable a slew of things that were deemed expressive and protected when they showed up the first time, but have since become trite and obligatory. No condemnation proceedings were held or were required. When some arguably expressive feature seems to lie close to the line between idea and expression (or the line between system, process, method of operation and expression), one of the things that can influence a court to hold the feature expressive is precisely what appears to have persuaded Judge Keeton: the fact that it seems to the court that the feature is particularly original. Now, you and I might know that the originality of a feature ought to have nothing to do with whether it is deemed idea or expression, but courts find (and historically have found) it very tempting to hold anything that seems unique and creative to be within the ambit of copyright protection. Once the feature is no longer so unusual, courts may hold that it isn't expression after all. That ability of some aspect or portion of a copyrighted work to be treated as private property on Tuesday and as incapable of being property on Wednesday inheres in a system that relies on drawing essentially subjective lines between the protectable "expression" part of the work and the unprotectable "idea, procedure, process, system, method of operation, concept, principle or discovery" part of the work.
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