Can you state the difference between an idea and the expression of that idea? Don’t worry if it doesn’t slip off your tongue. This distinction is one of the most difficult areas of copyright law but far from academic because copyright law doesn’t protect ideas, but it does protect expressions of ideas. And this distinction remains key to technology copyright cases.
Ideas themselves, separate from their expression or the form in which they are embodied, aren’t protectable under the Copyright Revision Act of 1976, although they may be protectable if they qualify under trade secret or patent law. If an idea hasn’t been patented and if it doesn’t qualify as a trade secret, it’s okay to copy it. But it’s not okay to copy the particular expression of an idea. As stated by the Ninth Circuit in Sofa Entertainment, Inc. v Dodger Prods. (9th Cir 2013) 709 F3d 1273, 1279, “Copyright only attaches to an original work fixed in a tangible medium of expression, never in the underlying ideas or facts.”
But how can you determine whether something is an idea or an expression of an idea, particularly when it comes to new technology? This idea-expression dichotomy doesn’t lend itself to a simple explanation; if it did, there wouldn’t be a Wikipedia article dedicated to it! The Ninth Circuit itself has admitted “[i]t is not easy to distinguish expression from ideas, particularly in a new medium.” Apple Computer v Microsoft Corp. (9th Cir 1994) 35 F3d 1435, 1443. A good way to begin to understand the distinction between expression and idea is to look at how courts have considered it under differing facts.
Apple Computer v Microsoft Corp. was epic litigation towards the beginning of the digital age, in which Apple sued Microsoft over Microsoft’s use of windows as a graphical user interface in Microsoft’s Windows operating system. Affirming the federal district court’s finding of no copyright infringement, the Ninth Circuit used a process of “analytic dissection” to separate unprotectable ideas from potentially protectable expression. 35 F3d at 1443. After the unprotectable elements are eliminated, what’s left is an author’s particular expression of an idea, which is protected.
The court found that both Apple’s and Microsoft’s operating systems included similar elements—i.e., windows, icons representing familiar objects—but these were ideas, not subject to copyright protection. “Elements of expression that necessarily follow from an idea, or expressions that are as a practical matter, indispensable or at least standard in the treatment of a given idea are not protected.” Dream Games of Ariz., Inc. v PC Onsite (9th Cir 2009) 561 F3d 983, 985.
The idea-expression distinction is used to analyze the protectability of computer software programs and graphic user interfaces. Iconix, Inc. v Tokuda (ND Cal 2006) 457 F Supp 2d 969, 996. The Ninth Circuit used it in Ashton-Tate Corp. v Ross (9th Cir 1990) 916 F2d 516, 521, when it ruled that a list of computer commands wasn’t copyrightable.
In another case, the First Circuit held that a menu command hierarchy—i.e., a set of menu commands and a menu structure—was an uncopyrightable “method of operation” within the meaning of 17 USC §102(b). Lotus Dev. Corp. v Borland Int’l, Inc. (1st Cir 1995) 49 F3d 807, aff’d (1996) 516 US 233. The menu command hierarchy was different from both the screen displays and the underlying computer code, which the court suggested were copyrightable subject to the usual limitations. The court applied this analysis to Lotus’s “Key Reader” feature, which allowed the program to process macros written for the Lotus 1–2–3 program, finding that what was copied was part of the uncopyrightable method of operation.
The ideas versus expression distinction isn’t getting easier to discern, but business law practitioners will need to consider and understand the difference as it arises in new ways. For an overview of copyright law, including a look at protection and infringement issues, check out CEB’s California Business Litigation, chapter 7 and Internet Law and Practice in California, chapter 1.
Other CEBblog™ posts you may find interesting:
- Founding Member of Eagles Doesn’t “Take it Easy” About Copyright Infringement
- Copyright Law in the World of Social Media
- Toymaker Clashes with Beastie Boys Over Fair Use
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