The mainstream blogs occasionally cover intellectual property. Andrew Sullivan, for example reproduced a few letters from his readers criticizing commentary on Yglesias's blog. I suppose he picked these letters because he thought they were the most sensible? I thought just for fun I would fisk one of them, mostly because it is the kind of nonsense I hear at seminars all the time:

I just wanted to weigh in on the budding IP debate to say that anyone who takes a firm stand on the specific meaning of IP law doesn't really understand IP law.

David: No clue what that means.

Copyright, patent, and trademark law all serve different purposes, and have different statutory regimes precisely because the issue is multifaceted, complex, and must meet various and sometimes opposing interests.

David: Wow, it is complicated? Who'd have thunk it?

Conflating three separate legal regimes as "IP law" can make arguing about it's purpose inherently impossible.

David: You mean the way that the U.S. Constitution conflates copyright and patent? I suppose this letter writer is merely dishonest. Few if any people conflate trademark with copyright and patent law, and in the United States the legal purpose of copyright and patent as established by the Constitution are indeed the same.

For instance, Yglesias points to the Constitutional requirement that the protection be for a "limited time." Well, over the last 200 years as IP laws have evolved, we've decided that "limited time" means something very different in patent law and copyright law. Patents generally last for 25 years, copyrights last for the life of the author plus 75 years (this is a gross simplification, but good enough for our purposes).

David: A very gross simplification unless they recently increase the length of patent protection from 20 to 25 years. I know they keep changing the length of copyright protection at a dizzying rate, but it appears to still be life of the author plus 70 years. I guess this stuff is multifaceted and complex.

Patents cover inventions that increase our standard of living and move society forward.

David: You mean like the swinging on a swing patent?

The inventors of those things should be protected, but only for a short time; after that society as a whole should be allowed to benefit from the increased utility of the technology's wide dissemination.

David: Why is it exactly that they "should" be protected?

More to the point, copyright law protects expression -- the words or notes an artist uses in creating his work.

David: I hear this repeatedly at seminars. How does protecting "expression" give the author the unique right to write a sequel? What does "expression" have to do with Suntrust v. Houghton Mifflin lawsuit over The Wind Done Gone? With the lawsuit over the Harry Potter lexicon? Copyright protects ideas not merely the expression of ideas. Where on earth did this myth that copyright only protects the expression of ideas start?

Though I agree with him on many things, Yglesias is wrong here. Copyright law is very much in the business of protecting the rights of the author. That's why a copyright term lasts so long (copyright terms have been increasing steadily over time, indicating that we are becoming more and more concerned with protecting authors as time goes forward). That's also why copyright protects such a wide range of expressions and has so few formal requirements for securing one. Our copyright scheme is actually quite expansive in its protection of producers' interests.

One could say, as Yglesias does, that copyright protects consumers, but only with very roundabout logic: copyright incents producers to produce copyrightable works, and that allows consumers to consume those works, thus protecting their interest in listening to music, etc. It's much more logically satisfying to accept the basic truth and say "copyright law protects an author's interest in his copyrightable works," and then derive whatever ancillary benefits you want from there.

David: There is a telling difference between what copyright does protect - the interests of the intermediaries involved in distributing copyrightable works - and what copyright is intended to protect - the rights of the public at large. As it happens it does not and is not meant to protect either authors or consumers.

The constitution says nothing about patents, copyright or trademarks. If by "conflating" you mean the use of the term "exclusive right," (while the Constitution does name "works" and "inventions" separately) then use the term "exclusive right", as it appropriately conveys the statutory nature of these regimes. This also gets away from the loaded term "property" and the way "intellectual property" seems to encourage authors and inventors to think of their information products as things they have some sort of presumption of rights over beyond those specifically enumerated in the statute.

You're right, copyright jurisprudence constantly bolluxes things, but the principle of the fact/expression or idea/expression dichotomy is fundamental -- in some sense and in general terms (hence the fuzziness), if you're reproducing enough of the factual elements that you're really reproducing the original expression of the author, then you're not doing things at a granular enough level. I highly urge you to read Feist Publications all the way through (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=499&invol=340): it's very interesting, a mini course in key concepts of copyright. It establishes that you have every right in the world to reproduce an entire White Pages phone book, because the factual elements aren't original (not even their selection and arrangement into columns and sorting by alphabetical order). Based on Feist Publications, under copyright you can freely download real estate listings and consolidate them and republish them -- the thing to watch out for would be whether there's a narrative description of the properties, which would likely be regarded as original expression -- but even that you could easily parse and break up into useful bits of info. Plus give some consideration to the ordering of the information, whether that might rise to the level of originality. Its *original* expression, not just expression like the act of expressing distinct from what's expressed. It's that at a certain level originality kicks in in the way things are expressed. That is ostensibly why the Wind Done Gone violates copyright -- it uses elements of the work being alluded to that the court held met the requirement of original expression.

Note that the fact/expression or idea/expression dichotomy in copyright (both phrasings are cited in Feist, I believe) means you have every right in the world to parse a published work and use the factual elements contained in it -- indeed that prospect is the very purpose of copyright: to get stuff published so it can be used by the public.

Copyright does *not* cover ideas -- it covers the way you express them. This "myth" is one of the oldest aspects of copyright jurisprudence, constantly upheld as, for instance, how a copyright regime coexists with free speech.

Oh -- and note that since Feist Publications, the response of the industry has been to put online databases behind clickwrap agreements, agreements that go beyond copyright. So everything I said above applies as far as copyright goes -- what you're dealing with these days in many areas is really the contractual issues that that sort of thing raises -- not copyright. These clickwraps are often called "paracopyright" but that really means it's not really copyright -- it's just what the maximalists are using while they fight for control.

Copyright protects nothing except the suspension of the people's natural right to copy, i.e. it protects the privilege of a monopoly intended for the press. It protects none of the author's natural rights, and only provides expensive recourse in the event the author's natural exclusive right is violated.

The constitution empowered the securing of the author's (pre-existing, naturally imbued, inalienable) exclusive right (to keep exclusive to them those intellectual works that were exclusive to them).

It said nothing about suspending any individual's liberty to copy or perform published works.

It's not surprising that those in power assume power they don't have, and wheedle their way out of any constraints imposed upon them, even pre-election promises they impose upon themselves.

If by copyright one means the specific current legal code and practice regarding granting artificial privileges to authors, then that understanding is very ephemeral, because if the monopolists lobby hard enough, maybe tomorrow the "paracopyright clickwrap" or explicit protection of ideas will be part of the code. I'm not saying this understanding of the term is completely wrong, it might be often useful, but then we mustn't unfruitfuly argue about the "little details".

Seth - I think you've missed David's point about the idea/expression dichotomy. He surely realizes that courts have tried to claim a difference between "ideas" and "expression". But when put into actual practice, this so-called dichotomy just turns out to be lip service.

As a practical matter, copyright DOES cover ideas through the extremely broad protections it gives to "derivative" works. Derivative works are all based on the IDEA behind the original work - not the "expression" of the original work itself.

That is why David brought up the fact that courts banned the "unauthorized" sequel to 'Gone With The Wind' as well as the Harry Potter Lexicon. If copyright didn't protect ideas, then you would not be able to have copyrights in literary characters, since characters exist only as ideas when divorced from the concrete works that they appear in.

If I make my own James Bond sequel with a new actor and without utilizing a single frame of a previous Bond film, I am only borrowing from the "idea" of Bond's original creators - not their expression. And yet, copyright prevents me from making such a work.

That is why it is entirely correct to state that it is a "myth" that copyright doesn't protect ideas. It most certainly does, despite whatever lip-service the courts may state to the contrary.

Defenders of the current copyright regime often try to counter that it depends on what level of "abstraction" the idea exists in (i.e., the character of Bond isn't "abstract" enough to remove it from copyright protections). But as soon as you engage this argument, you've already conceded the fact that David is right. Somewhat less "abstract" ideas are still "ideas". And it is a FACT that copyright protects them.

The only way to claim that copyright only protects "expression" and not "ideas" is to hold an irrational definition of what the term "ideas" mean - a definition so narrowly tailored as to be devoid of any practical meaning. That seems to be the case with current copyright jurisprudence. Hence, David's appropriate use of the term "myth" when discussing the so-called "idea/expression" dichotomy.

Your statement: "Copyright does *not* cover ideas -- it covers the way you express them." is merely a hollow legal talking point - not a statement of practical reality in terms of how we interact with copyright on a daily basis.

David correctly noted ">>Why is it exactly that they "should" be protected?" The answer of course, is that they should not be protected, but in refuting the concept of "protection" we did to disclose how this this so-called "protection" is flawed. So far, I have not seen much discussion pointing out these flaws.

The quest for "so-called protection" is leading us down a road where third parties are being required by the State to inspect content (ISP filtering) for the benefit of some special interest group. Due process as a legal concept is being quashed, those who scream infringement can take an adverse action against a person without even going to court. Ultimately, the ability of any special interest group to accost any citizen who somehow violates their "standards" in the name of "protection" could lead to a paralyzed society since anything we do would somehow violate someones "rights" and would consequently be illegal.

My post above, was long-winded. How about a simple example -> The State has no right to require Person C to intervene to (automatically) protect person A in a property dispute between Person A and Person B.

@Justin: Consider whether the use of a word is the same as the use of a frame or a set of frames from a movie. Frames of a movie aren't the same thing as words, which are a bit more complex than bits yet still generic enough that it is very unlikely the use of a word (other than a trademarked one) would count as anything other than a factual element rather than an instance of original expression. The principle that copyright covers original expression is consistent with the notion that it covers the totality of a frame of a movie, whereas breaking that frame down into digital form and working with those bits in some way would very reasonably be regarded as dealing with factual elements. Likewise, original expression might be argued for in the selection and arrangement of factual elements that constitute the character of James Bond (or the characters and events of Gone With the Wind). This is still consistent with the principle that copyright covers original expression and not the factual elements that make up such expression. In these cases, the courts proceed to consider the questions on other bases, once they've determined that the matter at issue gets past the fact/expression or idea/expression threshold.

Seth - I'm not sure how your comment @ 5:57pm casts any illumination on your earlier position. If I create my own James Bond film using the CHARACTER of James Bond, I am not using a single frame of the original bond work. It is entirely a new work that only utilizes the character of Bond (which only exists as an abstract idea).

Maybe I'm not understanding your point, but it seems to me you are trying to cloud the issue instead of admitting that your position on this is wrong (as is the current legal regime as interpreted by the courts).

Let's say James Bond film # 1 exists. Now lets say I wish to create James Bond film # 2 without using a single frame or fixed sound element from film # 1. What fixed work have I 'copied' exactly? The answer is : none. I have only copied the IDEA of the James Bond character.

It is very simple: Characters are IDEAS. That is ALL they can exist as. They are not fixed expressive works. If copyright really claims to only protect 'expression' and not 'ideas', then characters could not be copyrighted. Only the particular fixed works that the characters appear in could be copyrighted.

Yet, as it stands, the law DOES allow characters to be copyrighted. Therefore, David is right in this instance, and you are wrong. Period.

To suggest that characters are anything other than ideas is simply to bastardize the English language (which regretfully, the courts and legal community routinely does when it comes to this particular issue of copyright law).

@Justin -- I guess you are just not accustomed to thinking about expression in structural terms rather than in terms of abstraction. If you create the character of James Bond based on elements that constitute that character (tuxedo, martinis prepared a certain way, a certain back story, etc.) then that selection and arrangement of factual elements might be held to constitute original expression as a whole.

This isn't about abstraction -- the copyright claim is not about the abstraction; it's about the particular combination (though one might hold that the selection and arrangement is itself a certain kind of abstraction, though a very particular one, about the selection and arrangement rather than an ideal referent separate from expressive symbols that refer to it). Abstraction applies to concepts that transcend particulars, and is useful in some ways (more for patents than copyright I would say, though many try to use that sort of analysis in copyright) but it doesn't pertain to or clarify the fact/expression or idea/expression dichotomy. It isn't about abstract ideas or facts on the one hand versus the fact the author expressed them at all on the other. It's about original expression, which is covered by copyright, being comprised of many individual factual or idea elements, which aren't individually covered by copyright.

And you don't have to physically interact with the particular molecules of a particular copy that happened to be delivered to you by the publisher, and take an impression of those particular molecules, to produce an infringing copy made out of your own molecules. You can produce an infringing copy entirely independently of such a "publisher's instance", just putting together elements that are to all intents and purposes the same, to deliver something that happens to constitute originality -- structurally -- the same way the author constituted it -- structurally.

If it is held that a set of factual elements selected and combined a certain way to define the character of James Bond, constitutes original expression, then that is a plausible basis for claiming copyright covers that set of elements selected and arranged in that way. The claim is not about abstraction as such; it's about the extent to which a structural arrangement is original.

The critique based on the sense of abstraction that you want to apply, would be tantamount to saying that nothing should be covered by copyright (everything has abstract aspects, but to disparage a copyright claim based on the idea that original expression is abstract, is to speak in terms of a kind of abstraction that is irrelevant to how the fact/expression or idea/expression dichotomy -- or the reasoning that underlies copyright -- works).

Seth - Again, you merely playing a word game in order to 'win' the argument rather than attempting the central point.

Let's take it in more specific terms:

If you saw the recent James Bond 'reboot' Casino Royale, please tell me what fixed expression was copied from previous Bond works. Don't tell me what IDEAS were copied since we presumably agree that copyright can't protect ideas.

I presume you would agree that Casino Royale doesn't utilize a single frame of any other previous Bond film. The actor is different. The tuxedo he wears is different from previous tuxedos (and even if it was the same, it was shot in diffent angles with different lighting, creating different images). So please explain to me what it is you think has been 'copied' in this instance.

No matter what you use to create a 'character', that character still only exists as an IDEA. You can then utilize that idea in the body of a fixed concrete expression such as a book or movie, but the resulting book or movie is the only expression that then exists. The underlying character remains an idea. And if copyright was serious about not protecting ideas, then other people would be able to use that idea to create their own works with the character. But that's obviously not the way the current copyright regime works.

You can argue that copyright SHOULD protect such ideas and grant people monopolies over them, but its disingenuous of you to then argue that current copyright laws don't cover ideas. They most certainly do, and your responses only confirm what I (and David) have been arguing.

When you state that "you create the character of James Bond based on elements that constitute that character (tuxedo, martinis prepared a certain way, a certain back story, etc.)" - what you are in fact describing is an IDEA, not expression. When you choose to combine ideas, it doesn't constitute expression - it merely constitutes multiple ideas.

When you claim, "that selection and arrangement of factual elements might be held to constitute original expression as a whole". That is FALSE. Selection and arrangement in one's mind does not constitute "expression". Rather, it is FIXATION of the selection and arrangement that constitutes "expression" (hence the Constitutional requirement of fixation). Once you 'fix' the idea, then it stands to reason that copyright should only protect the specific instance of fixation (i.e., the actual film of "Dr. No" and the individual frames that make up the work) - not the underlying ideas behind them (i.e., the concept of James Bond, secret agents with a license to kill, suave personalities who wear tuxedos and like vodka martinis, etc.). If you argue that copyright prevents others from creating expressions utilizing the James Bond elements/ideas, you are in fact admitting that copyright protects those ideas. Hence, David and I are right - and you are wrong.

Your response only confirms what I have argued - you need to twist and bastardize the plain meanings of the English language in order to come to the conclusion that copyright doesn't protect ideas in terms of their practical application today. Even if you argue that some ideas are less 'abstract' than others, they still remain IDEAS apart from the specific fixed instances of creative works that they are utilized in.

People can argue that copyright SHOULD protect ideas the way they currently do today, but I'm confident any honest reader who comes across both our sets of comments will understand the point that I (and David) made and conclude that you were wrong to try and contradict that point.

I encourage you to keep responding in your current vein, since it will only further confirm to the dispassionate reader what I have been arguing all along in this instance.

@Justin -- No, I'm telling you you're using a bogus notion of abstraction, applying it where it's irrelevant and doesn't belong.

I thought you were in this to clarify something you thought I overlooked about the original posting, not to try to dismiss sound sense.

Any individual fact or idea you get from a copyrighted work you are perfectly free to use. *Except* if the way you arrange those facts or ideas constitutes -- structurally -- original expression like the original author's expression.

I guess you're not just unaccustomed to thinking in structural terms, you've just never heard of it. Google "structuralism selection combination" for a whole theoretical body of knowledge. This is not directly describing copyright, but it explains that expression does come from selection and arrangement. Google "syntactic axis" and "paradigmatic axis." Google "Saussure" and "Levi Strauss." Google Jacques Derrida, Roland Barthe.

That's all not directly describing copyright, but the concept of structure constituting expression is well-understood. I guess you didn't read Feist Publications as I suggested in my first post, or you wouldn't spend all this effort trying to dismiss the point I've now made repeatedly.

I even gave you that you could say that some form of abstraction is controlled by copyright, but I guess it bothers you that I limited it to simply the idea of the arrangement in itself, rather than the character-as-pure-idea notion you cling to and so dearly love. I can give you that a character is an idea in some sense, but I wouldn't give you that what's covered by copyright is just the idea -- it's the originality of the "idea" -- which, once again, is about how it's constituted, not about the pure idea as such.

Can I include the pure idea of James Bond in a work of my own? Sure -- the name is so recognizable all I'd have to do would be to name a guy, have him leaning against a bar in a tuxedo sipping a martini (even those details wouldn't be necessary -- everybody knows 007 by name alone), and we're golden. Not likely to be an infringement, because in this example (just because it's my example) it's not a whole story about James Bond that seems like it could be very much like those works by Ian Fleming or the Broccoli movie producers -- though I could imagine an author attempting a plausible claim like that. NOTE WELL: that claim would be presented in terms of a structural description of elements that are claimed to combine to constitute the originality of the character of James Bond. The next step after establishing the originality of the expression would be to see whether the use went beyond fair use.

Next step. After. And then.

The whole notion of database copyright is about the original expression that would be constituted by the structural selection and arrangement of data. Those are the terms used in the law that was passed covering collections of information: selection and arrangement (those are also the terms used by the Supremes when they considered database claims -- in that ruling mentioned that would have explained all this to you so clearly, as I indicated in my first posting).

Roman Jakobson (a Russian formalist, pre-structuralist) defines poetics in purely structural terms as "the projection of the principle of the axis of selection onto the axis of combination." This is a ridiculously technical way of describing figurative expression in structural terms: what's conveyed (expressed) through figurative techniques like rhyme, parallelism, meter. Google "juxtaposition structuralism." Structuralism analyzes expression in structural terms in order to achieve a degree of objectivity that other forms of analysis can't profess to achieve. Just mentioning this to give you an idea about structural analysis.

But no, copyright does not cover ideas. Might make it hard to use some ideas, sure. But you're barking up the wrong tree.

Uh, hard to use some ideas *in certain ways.* Not hard to just use some ideas -- that's easy. As I illustrated.

Google "syntactic axis" and "paradigmatic axis." Google "Saussure" and "Levi Strauss." Google Jacques Derrida, Roland Barthe.

Google "fixed expression".

@Nobody Nowhere -- I wasn't going to get into that. But fixation has no bearing on the discussion. It seems to have been brought in as if it implies that infringing copies must directly copy an instance of fixation of the original work. Somehow we go from copyright applying to a fixation, to copyright covering copies that duplicated themselves off of that fixation. And beyond that, the idea that this implies that the copying copyright is concerned about is only that kind of copy -- I'm guessing this conveniently suggests in some inchoate way that a copy must be identical, look the same, or actually come out of the work being copied. All utterly ridiculous notions. I could only parse the stressing of "fixed expression" in those terms. I really didn't want to rehearse everything all over again in that connection. But I didn't bother commenting because it's irrelevant, not just because it made no sense.

It would be amusing if someone made a fantasy film and a set designer specified the construction of a previously unknown device that was nevertheless practical, e.g. Archimedes' screw.

If someone then made another film in the same genre that copied no other element except the same device, would that be a copyright infringement?

What if someone manufactured the device as a child's bath toy? Or even as an agricultural product to assist with irrigation? Would the copyright holders of the original film be able to prosecute?

Fixation has no bearing on the discussion.

A ridiculous statement.

http://www.copyright.gov/title17/92chap1.html

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Fixation is obviously at the very heart of the matter.

LOL Mr. Nobody Nowhere

So . . . um, . . . *how* is it relevant?

You could simply address the bogus inferences in my previous posting to you (No one), inferences that seem to have been stacked up by Somebody Somewhere out of this requirement that copyrighted works be fixed:

It seems to have been brought in as if it implies that infringing copies must directly copy an instance of fixation of the original work. Somehow we go from copyright applying to a fixation, to copyright covering copies that duplicated themselves off of that fixation. And beyond that, the idea that this implies that the copying copyright is concerned about is only that kind of copy -- I'm guessing this conveniently suggests in some inchoate way that a copy must be identical, look the same, or actually come out of the work being copied.

Or:

Be specific as to how the notion of fixation has any bearing on these statements by Somebody Somewhere:

Derivative works are all based on the IDEA behind the original work - not the "expression" of the original work itself.

If I make my own James Bond sequel with a new actor and without utilizing a single frame of a previous Bond film, I am only borrowing from the "idea" of Bond's original creators - not their expression. And yet, copyright prevents me from making such a work.

Somebody Somewhere seems to *want* to relate fixation to the following assertion. Explain how it helps to understand how it is relevant:

If I create my own James Bond film using the CHARACTER of James Bond, I am not using a single frame of the original bond work. It is entirely a new work that only utilizes the character of Bond (which only exists as an abstract idea).

Somebody Somewhere seems to think that it somehow makes the following question sensible. Explain how this is not a ridiculous example of the sequence of bizarre inferences and bogus notions in my immediately previous reply to you, Mr. Nobody Nowhere. Barring that, just explain how the "copying" in question is not of a fixed work. Never mind trying to explain how there's any copyright question involved at all if there's no fixed work:

Let's say James Bond film # 1 exists. Now lets say I wish to create James Bond film # 2 without using a single frame or fixed sound element from film # 1. What fixed work have I 'copied' exactly? The answer is : none. I have only copied the IDEA of the James Bond character.

Explain how Somebody Somewhere's reasoning in the following passage is relevant -- either in the ridiculous senses I enumerated in my previous posting to you, Mr. Nobody Nowhere, or in any other sense:

Once you 'fix' the idea, then it stands to reason that copyright should only protect the specific instance of fixation (i.e., the actual film of "Dr. No" and the individual frames that make up the work) - not the underlying ideas behind them (i.e., the concept of James Bond, secret agents with a license to kill, suave personalities who wear tuxedos and like vodka martinis, etc.).

For bonus points -- if you really, really want to show the relevance of fixation to the discussion -- explain how, as Somebody Somewhere implies (appearing to build Someone's position around this) a copyright claim arises based on the use of the IDEA of a character, and not based on a fixation in a new work of elements that constitute that character.

That's all. Just show me how the notion of fixation brings any insight (any insight AT ALL) to this discussion -- and doesn't simply represent the core of Somebody Somewhere's sloppy reasoning.

Seth wrote:

LOL Mr. Nobody Nowhere

So . . . um, . . . *how* is it relevant?

Er ... if you still have to ask, after I posted the link to the parts of the copyright legislation that mention that only fixed expressions are copyrightable, then you've probably been smoking too much of that wacky tobacky.

Especially seeing as how the rest of your post is almost totally unintelligible, you appear to be misattributing somebody else's comments to me, and you can't even seem to keep my name straight from one sentence to the next.

Perhaps you should rethink the issue and post again after you've had some time to sober up.

And? How is it relevant to the discussion?

You can certainly explain on your own terms, if you don't care to address Somebody Somewhere's reasoning.

I'm sorry. You seem to have miscalculated. 15 minutes is nowhere near enough time to sober up. Go to bed, take a strong black coffee first thing in the morning, give it a couple of hours to take effect, and THEN post.

LOL again, Mr. Nobody Nowhere:

You entered this discussion, clearly claiming that the copyright statute pertaining to fixation is relevant. You can either relate it to the extant discussion, or introduce your own commentary. I can only ask what you mean. You remain a bare interjection.

I have offered the best reasoning I could come up with for how Somebody Somewhere might mean it:

It seems to have been brought in as if it implies that infringing copies must directly copy an instance of fixation of the original work. Somehow we go from copyright applying to a fixation, to copyright covering copies that duplicated themselves off of that fixation. And beyond that, the idea that this implies that the copying copyright is concerned about is only that kind of copy -- I'm guessing this conveniently suggests in some inchoate way that a copy must be identical, look the same, or actually come out of the work being copied.

I also presented the best passages I could find that might pertain to Somebody Somewhere's reasoning.

But what is your point? There's no connection visible between your interjection and the discussion -- except that the words fixation and fixed expression keep getting bandied about.

Let's see. My opponent cannot see how fixation is relevant to copyrightability even after reading the relevant statutes. He cannot seem to keep track of his opponents' names. And he cannot even tell the time!

How am I supposed to have a rational debate with such a man?

Ah, there you are! I'll just wait and see when you've actually decided to explain how the copyright statute on fixation is relevant to the discussion.

To quote from the US Copyright Office:

Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.

So fixation is clearly relevant to any discussion of whether some particular thing is copyrightable or not.

If a completely novel James Bond movie is made, what fixed medium of expression has been copied?

Riddle me that.

That is indeed a riddle. I refer you to the questions I originally presented to you. You are now echoing Somebody Somewhere.

1) What the hell is a "completely novel James Bond movie?" 2) Regardless -- the answer is a big Duh: the original James Bond movie is the fixed medium of expression that has been copied. It's quite astonishing to hear this question asked twice in this thread (maybe more, I'm getting tired of backtracking and checking), but certainly by by Nobody Nowhere and Somebody Somewhere.

Now, for you edification, note:

- assuming you're talking about duplication in a new (fixed!) work of just the bare "idea" - and this assumes you're talking about the discussion that was afoot, meaning Somebody Somewhere's exposition -- of course your question is phrased in a completely nonsensical way, so unless that's what you mean, you'll have to clarify what you -- Mr. Nobody Nowhere -- mean. So: assuming you mean just the bare "idea" in some way. Let's say just to keep it clear how that is accomplished: you simply name somebody James Bond and you only barely have him behave and exhibit enough attributes for audiences to get that you mean that very character and not just somebody who happens to have the same name as the character from the James Bond movie.

-- then on those assumptions, you likely haven't duplicated enough of the James Bond movie's expression to constitute original expression, and there's really only a specious claim to copyright infringement if at all. It is really easy to use the idea of James Bond without getting close to duplicating the original expression of the original author's work to such an extent that it constitutes infringement. Granted, it is hard to draw the line between, say, how much similarity of story and how much the character's character is a part of the story, constitutes a violation of the original expression, and how much you can actually have the character in a story that's decidedly similar to the original, if the new story is very original itself. But note that using the *idea* of James Bond is easy enough. Using a lot of it, and how you use it, obviously gets you into the question of duplicating original expression, so it gets riskier. This is the same situation as for any other thing that might go into an expressive work: words, phrases, sentences, plot, characters, etc. You can use the ideas freely -- it's when you're doing it enough and in such a way that it duplicates the way another author expressed themselves, that copyright questions arise.

Note that fixation has nothing to say about any of this. And note that what's going on is the accretion of details and what they add up to -- it's not that any of the ideas are restricted from you. Parody is a pretty safe way to get into complex expressive acts that really make hay with the original work's original expression. Or you can take a gamble and do a Wind Done Gone. But it wasn't the use of any idea (other than the idea of how the ideas are arranged) that done Wind Done Gone wrong.

(Sorry -- I should have previewed -- a bunch of indentations and paragraph breaks, using dashes as bullet points, disappeared in that. I might come back and reformat later)

A troll writes:

the original James Bond movie is the fixed medium of expression that has been copied

Identify which frame(s) of which pre-existing James Bond movie were copied.

None. In the example I helpfully provided, the only details that were copied were the name and a few attributes (probably wears a tux, could have him hold a martini, pull out some sort of gadget for a moment)

Note that copying and copying original expression are two different things. As I noted, but you aren't really interested in actually thinking here.

(Still waiting for the relevance of fixation here)

I wrote:

Identify which frame(s) of which pre-existing James Bond movie were copied.

The troll admitted:

None.

And there we are.

(The troll also posted another volley of unwarranted, pointless personal attacks, but I feel no need to dignify each such with a point-by-point response, and only remark on them now to note that we are clearly not dealing with someone who is capable of purely reasoned argument.)

Still waiting. Still no explanation of the relevance of the copyright statute on fixation to this discussion.

The troll writes:

Still waiting. Still no explanation of the relevance of the copyright statute on fixation to this discussion.

THE ONLY COPYRIGHTABLE THINGS ARE FIXED EXPRESSIONS. NO FIXED EXPRESSION IS DUPLICATED IN THE HYPOTHETICAL BOND FILM. GOT IT NOW???

Thank you. It is as I thought Somebody Somewhere had it:

It seems to have been brought in as if it implies that infringing copies must directly copy an instance of fixation of the original work. Somehow we go from copyright applying to a fixation, to copyright covering copies that duplicated themselves off of that fixation. And beyond that, the idea that this implies that the copying copyright is concerned about is only that kind of copy -- I'm guessing this conveniently suggests in some inchoate way that a copy must be identical, look the same, or actually come out of the work being copied.

There's no inference to make from copyright applying to fixed expressions, to either 1) copyright applying only to an image in a frame -- taken as a whole or even taken as static pieces of that specific image, or 2) copyright infringement being found only from a duplication of that image. All the fixation statute says is that before copyright applies at all to a work, it must be fixed. It doesn't say that you have to duplicate the fixed image itself to be in infringement. You can have an infringement by telling the same story but with different actors, different sets, different camera angles, etc. You infringe by combining elements in a way that captures the same originality as in the original work.

The troll writes:

There's no inference to make from copyright applying to fixed expressions, to ... copyright infringement being found only from a duplication of that image.

Ha! Copyright infringement -- without any copying? That makes about as much sense as taking coffee, using distillation to extract and purify the water content, and then calling the resulting water "decaffeinated coffee".

Now we're back to structural elements constituting expression. Now we have two identities who aren't accustomed to the concept of selection and arrangement. I advise you, Mr. Nobody Nowhere, to do as I advised Somebody Somewhere, and go and read Feist Publications.

I told you you weren't interested in actually thinking. Here is exactly what I posted previously:

All the fixation statute says is that before copyright applies at all to a work, it must be fixed. It doesn't say that you have to duplicate the fixed image itself to be in infringement. You can have an infringement by telling the same story but with different actors, different sets, different camera angles, etc. You infringe by combining elements in a way that captures the same originality as in the original work.

Now, sure, you can copy the exact image and that would very likely be duplication of original expression, even infringement. You're just not thinking about what I've actually said:

There's no inference to make from copyright applying to fixed expressions, to either 1) copyright applying only to an image in a frame -- taken as a whole or even taken as static pieces of that specific image, or 2) copyright infringement being found only from a duplication of that image.

You're now being silly, blithely ignoring such useful terms as "only."

Anyway, gonna break away as I seem to have sorted out the confusion. Maybe later . . .

The troll smoked some more of that wacky tobacky, and then wrote:

I told you you weren't interested in actually thinking.

You've told me all sorts of lies, to the point that I've lost track.

Besides the above unwarranted personal attack, there were several more personal attacks posted by the troll.

But no rational argumentation.

Now riddle me this: in the hypothetical new, unauthorized Bond movie what proportion of a pre-existing work was copied?

Oh yeah. You already admitted: zero.

"But no rational argumentation"

LOL

Oh, now proportionality! Nah, not today. I covered what I sought to lay out, despite your foolish insistence on a bogus reading of the fixation statute.

Maybe later. Catch you later dude!

:-)

The troll writes:

[insults deleted]

No, you're the fool.

None of the nasty things that you have said or implied about me are at all true.