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Copyright: Idea Expression Divide

    Section 102(b) of the copyright statute, located here, states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." It has long been settled law that ideas cannot be copyrighted. Had this been allowed in the U.S., it is almost certain that the American "economic miracle" would not have occurred.

    It is the expression of ideas, fixed in a tangible medium, that are protected. But what happens when there is simply only one way to express an idea? Here the law treats the idea as having "merged" with the expression and denies copyright protection. Were it to be allowed under these circumstances then essentially the copyright holder would "own the idea" having been given the "bundle of rights" to the only mechanism for expressing it.

    From the discussion above it should be clear why copyright law is often considered to be "metaphysical law." What may be apparent in the written word (i.e. the statutory language) quickly turns into "layers of abstraction" that courts are forced to contend with. How does a court decide that there is only one way (or an extremely limited number of ways) to express an idea?

    In Morrissey v. Procter & Gamble (5th Cir. 1967) the court denied protection to rules for conducting a contest related to a particular product. The issue was not whether there was only one way to express a particular rule in question, but rather, whether there were so fews ways to do so, that a clever plaintiff might copyright all the common variations so as to completely appropriate the subject matter. In this regard the court stated: "we cannot recognize copyright as a game of chess in which the public can be checkmated" and held for the defendant.

    This doctrine is also known as the idea/expression dichotomy. Invariably when this doctrine is discussed the case of Baker v. Selden (USSC 1879) is cited, despite being well over a hundred years old. Why? Because it clearly illustrates the idea/expression divide, and is also useful for pointing out the differences between copyright law and patent law. Baker wrote a book (with forms) illustrating the core ideas around double entry accounting. Selden borrowed the idea, including the forms, and implemented them for his own use. Baker sued under a copyright theory and the court held for Selden, indicating that Baker's copyright did not extend to the idea of double entry accounting and that a book purporting to teach, could not thereafter complain that its methods were used by consumers. If Baker wanted to protect the method, he would need to seek a patent, which requires a significantly higher hurdle to meet before it is granted.

    Infringement suits regarding software present even more knotty issues related to the separation of ideas and other non-protected elements from that which can be protected. This is especially true with respect to user interface issues. A leading case here, where the "filtration" concept was applied, is Computer Associates v. Altai, wherein after the filtering process was applied by the court found there was nothing left to protect.

     
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