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You Can’t Own An Idea

 
Jb8989
 
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08 September 2018 10:11
 
LadyJane - 08 September 2018 10:04 AM

The law seems to agree with the title of this thread.  Maybe it’s time to move on and express some new ideas.

Hence a part of your issue on the matter: The law doesn’t make agreements, people do. The law enforces them or not. Copyright law doesn’t have ideas, it just codifies at which point in their conceptualization process they’re protectable expressions.

 
 
TheAnal_lyticPhilosopher
 
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08 September 2018 10:46
 
LadyJane - 08 September 2018 10:04 AM

The law seems to agree with the title of this thread.  Maybe it’s time to move on and express some new ideas.

Actually it doesn’t.  All it says is that you can’t own an unrealized or unexpressed idea, and no one in this thread has argued otherwise.  What they’ve pointed out, repeatedly, is once an idea takes shape in the real world, you can own it.  No longer calling a realized or expressed idea an “idea” is just a semantic dodge on your part.  It’s not one the law shares, idea/expression dichotomy notwithstanding. 

The colloquial understanding of “owning an idea” once you’ve copyrighted its expression or patented its realization works just fine.  Until 2017, for instance, Amazon owned the idea of “one-click” checkout for online shopping, and now one else could use the idea without their permission and/or paying them a royalty.  As far as I know, they still own the trademark.  Both the method and the expression remain ideas, despite being realized and expressed.

But you’re probably right about moving on.  After such prevarication and hem-hawing in this thread, I’d want to as well.

 

[ Edited: 08 September 2018 10:53 by TheAnal_lyticPhilosopher]
 
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08 September 2018 13:06
 
TheAnal_lyticPhilosopher - 08 September 2018 10:46 AM
LadyJane - 08 September 2018 10:04 AM

The law seems to agree with the title of this thread.  Maybe it’s time to move on and express some new ideas.

Actually it doesn’t.  All it says is that you can’t own an unrealized or unexpressed idea, and no one in this thread has argued otherwise.

Check yourself.  This has been the main argument throughout this thread.  Glance back if ya like.  Pay particular attention to the assumptions that led to insult and outrage.  There isn’t really a solid explanation to counter what I’ve said.  There’s only inferences and reactions to the assumptions.  And it gives me very little to respond to.  Silence isn’t agreement.

When people seem overly eager to disagree with things that they agree with it makes for a rather knotty thread.  I can’t imagine why anyone would want to get tied up over objective subject matter.  Maybe it’s just me.  Coz if the statement above is true then the title of my thread is accurate. 

And…I’m not going anywhere, Princess, so I suggest you get creative.  Or, find someone who can and skirt the copyright infringement.

[ Edited: 08 September 2018 13:08 by LadyJane]
 
 
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08 September 2018 14:21
 
LadyJane - 08 September 2018 01:06 PM

There isn’t really a solid explanation to counter what I’ve said.

Besides the fact that you chose only copyright law and disregarded trade secrets, patents, and trademarks to make your claim, here’s a good example: let’s say that I’m a photographer. The thought occurs to me that using a particular type of camera, lighting, lens, location, filter and angle would really capture a cool perception that I had of this waterfall. I workshop it for days and It eventually comes out beautiful. I copyright it.  Where does the idea begin an end? According to copyright law at the snap, but in reality way before that with the conceptualization and refinement of an idea I had.

Not to mention, hypothetically, this can broach trademark world and maybe that picture is so widely popular that a company wants to use it to brand their new line of upcoming marijuana beverages. They want to buy the right to the property (i.e. the picture) and reproduce it seven different similar ways (the method and the process), and then own the image outright.

That image was the original photographer’s idea no matter how technical the law tries to preclude process monopolies, which is what your probably unknowingly getting at FYI.

Not to mention that your entire argument is rendered moot because patents protect processes, quite literally ideas about how to proceed with inventing stuff. So…

 

 
 
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08 September 2018 15:41
 
LadyJane - 08 September 2018 01:06 PM
TheAnal_lyticPhilosopher - 08 September 2018 10:46 AM
LadyJane - 08 September 2018 10:04 AM

The law seems to agree with the title of this thread.  Maybe it’s time to move on and express some new ideas.

Actually it doesn’t.  All it says is that you can’t own an unrealized or unexpressed idea, and no one in this thread has argued otherwise.

Check yourself.  This has been the main argument throughout this thread.  Glance back if ya like.  Pay particular attention to the assumptions that led to insult and outrage.  There isn’t really a solid explanation to counter what I’ve said.  There’s only inferences and reactions to the assumptions.  And it gives me very little to respond to.  Silence isn’t agreement.

When people seem overly eager to disagree with things that they agree with it makes for a rather knotty thread.  I can’t imagine why anyone would want to get tied up over objective subject matter.  Maybe it’s just me.  Coz if the statement above is true then the title of my thread is accurate. 

And…I’m not going anywhere, Princess, so I suggest you get creative.  Or, find someone who can and skirt the copyright infringement.

I’ve checked, both this thread and the topic at hand (at least as you argue it now). 

In one of the opinions that determined what the idea/expression dichotomy means in practice, Learned Hand said:

“It has never been very satisfactorily established, and probably never can be, at what point a plagiarism ceases to copy the expression of an author’s ideas and steals only the ideas themselves.” 

And reflecting on the test he created, toward the end of his career he added:

“The test for infringement of a copyright is of necessity vague. In the case of verbal ‘works’ it is well settled that although the ‘proprietor’s’ monopoly extends beyond an exact reproduction of the words, there can be no copyright in the “ideas” disclosed but only in their “expression.” Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc”

As far as I know there are three competing standards for the idea/expression dichotomy in the appellate case law, none of which is entirely compatible with the other.  While everyone acknowledges that in principle one cannot legally copyright “an idea” irrespective of its expression, no one can specify a clear standard in practice what this distinction means.  As a result, ideas get de facto copyrighted once they are expressed, and this makes perfect sense even as the dichotomy remains technically intact.  For an idea for a novel (its plot, characters, etc) is just an idea for a novel before the novel is actually written, and prior to writing it, the idea cannot be copyrighted.  It’s just a general idea without form.  But once the novel is written, the idea for the novel is protected along with the expression that is the novel itself.  This is why subsequent authors can’t just take the same idea (the same plot and characters) and re-write a new novel based on it, or movie makers make a movie with the same plot and characters but under a different name with newly written dialogue, etc—something that technically fulfills the idea/expression dichotomy, as you are deploying it.  The law may not be able to make perfect sense of what it in fact does, but it manages to do it nonetheless.  As far as I can tell, copyright law is one of these cases.  As much as unexpressed ideas cannot be copyrighted, de facto expressed ideas are copyrighted.  And teasing out where the former ends and the later begins is a case by case and rather ad hoc affair.  It’s not the clear distinction you’re making it.

The same applies to patents, like the Amazon’s “1-click.”  Competing online retailers were not able to say the “idea” of a single click bypassing the shopping cart was still up for grabs, even as Amazon’s “realization” of that idea wasn’t.  In other words, they couldn’t just rename the idea “Instant Buy”, write different code using non-copyrighted programming calls, set this up as a bypass for the shopping cart, and say they “expressed” or “realized” the idea differently.  Whatever the dichotomy that says Amazon can’t technically patent “the idea of 1-click checkout,” that is what it in fact did.  No one else could implement that idea because there was no possible way to do so without violating Amazon’s realization.  So again, to Hand’s point: there isn’t a clear line between the realization of an idea in practice and the idea itself.  In cases like 1-click, the two are one of apiece. So again, for all intents and purposes, the idea was patented despite the dichotomy.

This is exactly why I’ve posted already that the “owning an idea” idea is a probably bad place to start deliberations on copyright and patent law.  This idea of a different starting point is neither unique nor original to me. 

Since you wanted a “creative” account that accommodates what you are saying without agreeing with it, there it is.  As it stands, you’ve shifted and deflected from what you’ve actually argued in this thread so many times when challenged that at this point it’s impossible to tell what it was ever about.  The first response to me that shifted from “taking credit” to “monetary gain” is only the first case in point. 

And for god’s sake if you reply skip the platitudes that situate yourself above argument and just make one.

[ Edited: 08 September 2018 17:05 by TheAnal_lyticPhilosopher]
 
LadyJane
 
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08 September 2018 15:58
 
Jb8989 - 08 September 2018 02:21 PM

Besides the fact that you chose only copyright law and disregarded trade secrets, patents, and trademarks to make your claim, here’s a good example: let’s say that I’m a photographer. The thought occurs to me that using a particular type of camera, lighting, lens, location, filter and angle would really capture a cool perception that I had of this waterfall. I workshop it for days and It eventually comes out beautiful. I copyright it.  Where does the idea begin an end? According to copyright law at the snap, but in reality way before that with the conceptualization and refinement of an idea I had.

Say we both have the same idea to take that picture.  And say I’m standing beside you when you snap the photograph of that waterfall only I forgot my camera.  We both share an idea.  We both share the memory.  We both share the memory of an idea.  Then you develop an image of that waterfall and decide to copyright it.  You now have a photograph of a memory we share.  The moment you created the tangible image is the moment it became copyrightable.  Did the idea disappear from our memory?  I can’t sue you for your photograph impinging on my memory anymore than you can own what’s in my mind.  You obtained a copyright on the photograph of the waterfall.  Who owns the idea?

 
 
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08 September 2018 16:39
 
LadyJane - 08 September 2018 03:58 PM

Did the idea disappear from our memory?

 

Irrelevant

LadyJane - 08 September 2018 03:58 PM


You obtained a copyright on the photograph of the waterfall.  Who owns the idea?

if I own the copyright, I own the property picture. Any shared trade custom methods leading into it that the forgotten camera guy contributed - in so far as they objectively advanced the process, and were monetized enough to satisfy a damages claim- are redressable in federal court and probably equity. Whether and to what extent those initial processes are ideas is what’s actually the issue.

Nevertheless, the hypo that I proposed was actually a common IP hypo fashioned of a real case. But you avoided it, added facts, and drafted a new hypo with an inherent personal conflict including a forgotten camera, memories and all sorts of red herrings.

 

[ Edited: 08 September 2018 17:05 by Jb8989]
 
 
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08 September 2018 17:12
 

And here I thought we were just shootin’ the shit.

If it’s a hypothetical then the question remains.  If it’s a real case…common no less…trot it out.

If you own the copyright and you own the property picture…who owns the idea?

 
 
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08 September 2018 18:18
 
LadyJane - 08 September 2018 05:12 PM

If you own the copyright and you own the property picture…who owns the idea?

If you want to get down to it philosophically, sure, nobody.

 

 
 
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09 September 2018 05:20
 
LadyJane - 08 September 2018 03:58 PM
Jb8989 - 08 September 2018 02:21 PM

Besides the fact that you chose only copyright law and disregarded trade secrets, patents, and trademarks to make your claim, here’s a good example: let’s say that I’m a photographer. The thought occurs to me that using a particular type of camera, lighting, lens, location, filter and angle would really capture a cool perception that I had of this waterfall. I workshop it for days and It eventually comes out beautiful. I copyright it.  Where does the idea begin an end? According to copyright law at the snap, but in reality way before that with the conceptualization and refinement of an idea I had.

Say we both have the same idea to take that picture.  And say I’m standing beside you when you snap the photograph of that waterfall only I forgot my camera.  We both share an idea.  We both share the memory.  We both share the memory of an idea.  Then you develop an image of that waterfall and decide to copyright it.  You now have a photograph of a memory we share.  The moment you created the tangible image is the moment it became copyrightable.  Did the idea disappear from our memory?  I can’t sue you for your photograph impinging on my memory anymore than you can own what’s in my mind.  You obtained a copyright on the photograph of the waterfall.  Who owns the idea?

You can construe scenarios where one doesn’t “own an idea” to your heart’s content without saying anything relevant about copyright or patent law.  That’s all this hypothetical does.  Of course owning the copyright to a picture doesn’t mean you own the idea of taking the picture.  When Ansel Adams got the copyright for his pictures of Yosemite, I’m fairly certain no one ever contemplated that he owned the idea of taking pictures of those vistas, or that others couldn’t take pictures of the same vistas and copyright them too.  And more to the point in your hypothetical, no one has ever contemplated “suing for impinging on memory” or “owning what is in someone else’s mind”.  These uses of “idea” exceed anything contemplated under copyright law and are irrelevant to its exposition.

Here’s an alternative hypothetical that is both realistic and captures what patent and copyright law are about, and that shows in what sense “ideas can be owned.”  It is more or less based on a real patent dispute that anyone can look up.

Say we are competitors in the online shopping business.  Unknown to each other, we both have an idea on how to bypass the shopping cart to make an instant purchase while shopping online.  I call it “1-click” and you call it “Express Lane.”  I submit a patent for a ‘method of purchase that bypasses the shopping cart using a single click based on previously entered user data,’ but you don’t, or I submit mine earlier—whatever.  The patent is granted.  Who “owns the idea”?  Under patent law, I do, and I can now sue you for infringing on the idea regardless of whether or not neither of us “owned it” when it was in our respective heads, or even if we both “owned it” when it was.  Our “memories” of the creative process are even less relevant to the question of ownership.  Once the patent is granted, for all intents and purposes I “own the idea” of instantly purchasing an item online with one click that bypasses the shopping cart, and you don’t, and this “ownership” confers certain rights of exclusive use on my part.  Yes, plenty of ways remain in which I don’t “own the idea,” but none of them are relevant to its realization in e-commerce and the question of exclusive use.  In other words, none of them are relevant to copyright and patent law. 

This example can be tweaked in various ways that both bring it more in line with your own hypothetical and illustrate other aspects of “owning an idea,” such as us initially being collaborators who jointly developed the idea, but I break off and file for the patent, or even worse, it was your idea and I break off and file it—that sort of thing.  Each of these permutations gets at other aspects of “owning an idea” without getting bogged down in the red herrings of “impinging on memory” or “owning what’s in someone else’s mind.”  But these permutations, not those red herrings, are what are relevant to the question of “ownership” under patent and copyright law. 

So yes, you are right LadyJane.  No one can own an idea in the sense you are using “idea.”  It’s just that not owning an idea in that sense is irrelevant to any questions of patent or copyright law, and this make the issues you raise in the thread about either entirely moot under the very stipulations that make the title as “accurate” as you insist it is.  For contrary to the title, there is a legal sense in which one can “own an idea,” even if that ownership is technically limited to one of its expressions and not to any sense of the “idea as such.”  Just what that difference means in practical terms gets worked out on a case by case basis, where these questions of infringement and misappropriation are decided.  For as inconsistent as it sounds, the law recognizes, simultaneously, that while an idea absent expression can’t be owned, expression is still more than a particular arrangement of words; therefore de facto the idea organizing those words, by virtue of its expression, gets some protection too.  In this limited sense of protection through rights of exclusive use, ideas—once expressed—can be owned. 

Anyway, that’s how I understand these issues.  On my read, this duality between expression and idea is what (at least according to Learned Hand) makes copyright litigation such a gray area in the non-obvious infringement cases.  In other words, the complexity of this duality is why there is as of yet no clear-cut test for deciding those cases, one analogous to the Lemon test for religion-related legislation.  Like Hand noted, these cases are being decided ad hoc by more or less groping in the dark.  Well, maybe by a dim reading light, ‘cause I don’t want to imply anyone is blind…

Unless you have arguments and case law that suggest otherwise.  If so, then I stand under potential correction.

 

 

[ Edited: 10 September 2018 04:24 by TheAnal_lyticPhilosopher]
 
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11 September 2018 05:03
 

It’s shame to see such an interesting conversation die out.  Here’s my effort to continue it after continuing it for myself.

There are two ways in which copyright law de facto confers ownership to ideas by protecting their right of exclusive use, even as it says, as a term of legal art, “ideas” cannot be copyright protected, only their “expression” can—in other words, “one’s expression of an idea is copyrightable, the underlying idea one uses is not.”

Photographs

When Ansel Adams approached a vista in Yosemite, he had an idea on how to take the shot.  This wasn’t just the idea “take a picture of this vista.”  Rather the idea involved how to frame the vista in the picture, what lighting to expect, what camera settings to use to capture this lighting and other effects, what settings to use to manipulate these effects to produce elements the naked eye can’t pick up… and so forth.  In effect, his idea was far more than just “take a picture of this vista in Yosemite.”  It was a conception of what the scene could look like once depicted with a camera manipulated in a certain way, under certain conditions.  Copyright right law de facto protects this idea, even as it says no idea can be copyrighted.  Not the underlying idea “a picture of this vista in Yosemite” but rather the idea as an anticipation of what a picture could look like after doing x, y, and z when a, b and c occur.  For it is well established that if a photographer chooses “subject matter, camera angle, lighting, etc., [and] copies and attempts to duplicate all of such elements as contained in a prior photograph, then even though the second photographer is photographing a live subject rather than the first photograph ... such an act would constitute an infringement of the first photograph (Gentieu v Muller).  So as a legal term of art, Adam’s “idea” to take a picture of a specific vista in Yosemite is not copyright protectable, but his idea in the more concrete sense—the sense that matters for the artistic creativity of photographs—is protected.  Copyrights for photographs de facto protect the more specific idea of how to capture the subject matter and produce a specific visual effect, even as it does not protect the general “idea” of photographing the subject matter itself.

The doctrine of “substantial similarity”

Two creative works are substantially similar if “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.”  They are also substantially similar if the “total concept and feel” are the same to said ordinary observer.  Understood properly, the doctrine of substantial similarity de facto protects specific ideas even as is in principle it doesn’t protect general ones. 

For instance, consider Atari’s lawsuit against the makers of a rival game, “Meteors.”  There the doctrine of substantial similarity was applied in terms of the requirements of copyright law, and it was ruled that given the common elements in the two games, the defendants, “to put it bluntly,” “took the plaintiff’s idea.”  Nevertheless, the games were ruled substantially different, with a different overall “feel.”  For instance, while both games had identical elements of shooting moving bodies in space from a rotating ship, “Asteroids” is a black-and-white two-dimensional object game in an empty black space, while “Meteors” is a color three-dimension object game in starry space.  Also, in “Asteroids” the two-dimensional objects move in fixed profile across the screen, but in “Meteors” the three-dimensional objects rotate, like real asteroids would.  With these and a few other differences in mind (like pace of game play), the ‘total look and feel’ and ‘aesthetics’ of the games are substantially different, even though they both rely on the same underlying idea.  In this case, the court ruled that the underlying idea was not protected, only its specific expression in the actual game.

There is another way to read this case that is consistent with its ruling and the notion that copyright still protects ideas.  It all depends on how one understands the ideas it protects.  For consider, while true that the makers of “Asteroids” had an general idea for a game about a ship shooting asteroids in space, their specific idea was for a two-dimensional black-and-white game of a ship shooting asteroids in space.  The law, as a term of art, calls this difference between a general and a specific idea an “idea” and its “expression,” but in fact the difference is the difference between general and specific ideas.  The makers of “Asteroids” had both a general idea for a game and a specific idea of how to make it, but both were ideas.  Similarly, the makers of “Meteors” had a general idea for a game—which they “blatantly” took from Atari—but they had a different specific idea of how to make it.  Their specific idea was for a more realistic, less abstract game. In their specificity, both ideas are copyright protected.  One cannot, for instance, make another two-dimensional fixed-object black-and-white ‘asteroids’ game without running afoul of “substantial similarity.”  Similarly for the specific idea of a three-dimensional color rotating object game.  But in order to preserve the free commerce of general ideas, the law operationalizes the difference between these two games in terms of an “idea” and its “expression,” despite the fact that both games remain ideas—just specific ideas.  So another way to read this case—and copyright law in general—is that copyrights protect only specific ideas, not general ones.  Legally the former is an “expression” and the later an “idea,” but in reality were actually talking about general and specific ideas.

So, at the end of the day, whether one can “own an idea” hinges on how one uses the term “idea”—as a term of legal art, which is really a legal name for a general idea, or as an everyday term (or even as a philosophical one, which often drives the everyday ones).  As a term of legal art, one cannot own an idea, but as a matter of fact about what ideas really are, one can own one.  It’s just that in the case of copyright law, what one owns is quite specific, and in this sense very limited.  It’s a specific idea, the ‘specificity and generality’ of which is decided on a case by case basis, challenge by challenge.  What’s free is any general ideas that guided the specificity, or that can be derived from it.  In this way, the law tries to balance the needs of free speech and the free commerce of ideas with the need to confer exclusive rights to originality.  It does this in terms of “idea” and “expression” as technical terms of legal art, and it says “one’s expression of an idea is copyrightable, [but] the underlying idea one uses is not”.  But in fact what is does is confer ownership to specific ideas while keeping general ones free.  As I see it, the heart of copyright litigation is precisely this question of whether an idea is sufficiently general to be free or sufficiently specific to be owned.  Although framed in terms of “ideas” and “expression,” this former question is what the law is de facto deciding.
 

[ Edited: 11 September 2018 05:39 by TheAnal_lyticPhilosopher]
 
Brick Bungalow
 
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12 September 2018 23:25
 

(Any and all legal professional please correct anything I get wrong here. I’m repeating what I’ve been told)

As I understand it the holder of a copyright is actually responsible for pursuit of all known infringements of that copyright as part of the contract for holding it. I believe this is true of business trademarks at any rate. Essentially if it becomes apparent that the owner neglected to follow up objectively on some known instance or otherwise was selective or prejudicial in their pursuit it harms their standing in all future mediation.

This was explained to me when a local charcuterie that I frequent had to change its name due to being served a cease and desist by the Olympics. Apparently the powers that be actually did not want to harass independent delicatessens but were in fact required to do so.

I believe that many of the Starbucks cases were of this variety. Starbucks had to serve an independent barista of the same name who had actually been in operation well before the company existed but had never registered anything formally. Purportedly they did not want to but rather they had to.

 

 
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