In this chapter, we examine the current foundation of copyright, the expression, and show why "expression" is not an adequate concept to base a system on.
What Is An Expression?
This subsection is not a substitute for gathering a real understanding of copyright. It is a good idea to learn more about this on your own. There are many good resources online, many targeted at non-lawyers. I strongly advise that if you find these issues interesting, that you take the time to learn more on your own. A Google search on the string "Copyright FAQ" turns up ten excellent resources on the front page as of this writing.
But so that we are all on the same page, including any possible misconceptions arising from my non-lawyer nature, let's extremely briefly review the concepts behind copyrights: Copyright's root concept is "expression". From the Findlaw.com Legal Dictionary:
- 1. an act, process, or instance of representing or conveying in words or some other medium: "speech" 2. a mode or means of expressing an idea, opinion, or thought
Copyright protects expressions and nothing else. If you "express" an idea in an essay, you own the expression, but you do not own the idea. You can take anything in this essay, re-express it in your own words, and you will have an "expression" that is every bit as much protected as the one you are reading. It is considered polite to credit the idea, but there is nothing in copyright law that enforces that. There is stuff that covers the use of expressions; if you directly quote this essay, then copyright law constrains what you can do without my permission.
What you can do without my permission is called "fair use". You can quote short snippets for the purpose of commentary, but those quotes must be the minimum necessary for the commentary, and not constitute a large portion of a work. You could not re-publish this essay without my permission with commentary for every paragraph, because that would be a large portion of the work, and thus not be fair use. There are some other things that are "fair use" too, though they aren't as encompassing as many people think they are.
Copyright law is concerned entirely with expressions, how people use them to create other expressions, and how various rights and privileges flow through various economic transactions. The ins and outs of copyright are complex, and in order to truly understand what I am saying here, you really ought to learn more for yourself. But these are the basics: there are expressions, there are protections, and there are some balancing things that people can do without the permission of a copyright holder, mostly for the purposes of free speech.
The other important thing about copyright many people miss is that the protections are not atomic, in the original sense of "indivisible". You can give permission for certain things but not others, which is to say just because you have permission to own a certain expression does not legally mean that you have the right to do whatever you want with it, like copying and re-distributing it. (You may feel you have the moral or ethical right, but that's quite different.) If "Possession is nine-tenths of the law", this is part of the other tenth, where physical ownership of an expression is not very meaningful. Owning a copy of Microsoft Office does not entitle you to make as many copies as you like and sell them to others. Many copyright novices often argue on the grounds that physical ownership confers full rights to them, and they are wrong. (A much, much smaller group of people argue that it should confer full rights, which is a different point entirely.) The "first sale" doctrine does provide certain guidelines on what restrictions can be made on customers; again, consult better resources than this on the first sale doctrine.
Now, you might be wondering why I feel I can just tell you to go look up "first sale" and "fair use" and generally gloss over the details of copyright, when it seems like the details would be important to me. The entire point of this essay is to examine communication issues, and an important part of that is to examine the the historical solutions to these problems. The reason I feel justified in waving away the details of copyright law is that I do not intend to attack "copyright law"; instead, as the chapter title implies I will strike at the concept of "expression", which is the foundation of copyright. With "expression" destroyed, all the rest of copyright law crumbles.
Again, lest you think this simply bombastic rhetoric with little application in the real world, one does not need to look hard to see very real strain in copyright law, both in the various issues covered in previous chapters and in more issues to be covered in chapters to come. Is it really such an extreme claim that the strains come from a fundamental mismatch of the expression doctrine with the real world, rather then merely some transient issues that we can make go away with a couple of laws?
Remember, there's nothing holy about our current system. As demonstrated in chapter 2, as well as the system worked, from top to bottom the copyright system is a system of expedience and purely local targeting. If you need a moment to prepare yourself for the idea that we need to destroy the entire system, I'd understand.
Why Is The Expression Doctrine Dead?
Before software, expressions were dead. Once made, they would not change or develop, just like a boulder does not change. Nowadays, expressions are living, vibrant things, and if you examine the various ways in which they are alive and vibrant, you'll find that modern expressions shatter the old framework, just as the framework we use to deal with boulders shatters if we try to apply it to elephants.
Example: If a boulder is in the road, we know it will not move by itself, so we need to obtain equipment to move it somewhere where it won't bother anyone, like down into the gully. We fully expect it will not crawl by itself back up into the road, so much so that if we do find the rock back in the road the next day, we do not even think of the possibility of it having moved itself; we immediately ask ourselves what human moved the rock back up. If an elephant is in the same road, it doesn't make much sense to spend hours to get a crane, lift the elephant up, and drop it down the gully. By the time you've gotten the crane, the elephant has likely moved; if it's still there, it might attack you, and that's even more likely if you try to lift it with the crane. Elephants require another conceptual framework to handle the problem; I'd recommend one that accounts for elephants' tendency to gore people to death. This is not something the boulder framework needs. It may seem strange when you first think of it, but upon reflection you should see that very little of your understanding about dead things carries over to understanding living things.
As long as we consider only a single expression in isolation, there is no significant difference between software/documents and traditional expressions. Single, indivisible units are handled adequately by traditional copyright law; this should make sense, as this is a very common case in copyright law. Where things start getting complicated is when works start using other works to create our new work.
Under traditional copyright law and with traditional technology, the only way to use another work is to include some portion of the old work in some new work, either modified or not modified. Certain rules govern these uses if the original work is under copyright protection. There are endless details that have been worked out over the past few years, but it all basically boils down to the right to use the work and the right to pass that right on. The only possible way to use that work is to include a copy of it in the new work. That's the nature of conventional technology.
So let's look at a example. Consider a simple page in a magazine, with an advertisement using photos, a book review written by a free-lance author, a fair-use quote from the book, and the logo of the magazine. Look at a diagram of the important copyright relationships and agreements necessary for that page (below).The reason this works is that everything boils down to essentially one question: Does someone have the right to include a copy of some expression in some other expression, or not? There are a lot of details, like whether the permission can be passed on, whether the work can be modified, used only in part, or used only in certain geographical regions, but these are all variations on the same basic question of permission to include copies of expressions.
We can call the tree in the previous image the derivation tree of that expression. It shows what other expressions went into the creation of that expression, and the relationships between those expressions. Despite the fact that a derivation tree of many real-world expressions (such as a real magazine) grow immensely large they are manageable, because they are still quite straightforward.
An expression that does not have a derivation tree, because it is a fully original creation of some kind can be called an atomic expression. For instance, this paragraph considered as an expression on its own is an example of an atomic expression; all the words are fully my own, and as such I and I alone own full rights to it. An expression of some sort, such as a newspaper page or collage, that has some sort of derivation tree associated with it can be called a composite expression. Note that we're still examining the current expression doctrine, so it is still appropriate to use the term "expression". Perhaps someone has more established terms for these; I'd appreciate hearing about them.
Expression and Derivation Tree Equivalence
Let's specify the derivation tree more precisely, so we can compare this to what happens in the software domain precisely.
An expression derivation tree is a standard tree structure. A tree structure connects nodes. Each node can have any number of children. A node can be a child of only one node. Each node has certain properties. The parent-child relationship (represented in a figure with a line connecting them) may also carry certain properties in the connection. For more complete information about tree structures, consult the web (or Wikipedia).
Trees are immensely useful structures, and are used in many different ways. In my derivation trees, all nodes represent some expression, perhaps some text, or a picture, or a movie. Each of these nodes has at least the following properties:
- Some collection of rights distributed to the owners of that expression. Every expression is owned by some set of entities. It can be owned by one entity, several entities (in the case of a collaborative work, for instance), or no entities, in which case we call it public domain. Each entity may have varying rights to the expression. For instance, there may be a primary author who is authorized to distribute some work, while the other collaboration partners may only have full control over their own contributions. If there is no owner, then nobody has any ownership of the expression, and it can be used freely.
- The expression itself that the node represents.
- Links to any children it may have. In the static world, expressions always carry their children with them. (For example, the "magazine page" has as a child the advertisement; every copy of the magazine page has a copy of the advertisement as well.) If this is a composite expression as described in the owner-rights paragraph above, then that work also has as children all the separate pieces. Each of those children would also contain a full set of properties describing who owns it. These are shown in the figure by the arrows.
Note that these are integral parts of the expression; if you throw the children away, it is not the same expression. That would represent an expression independently derived, with no children. For instance, in the magazine page instance, if you threw away the advertisement child but the final product remained the same, that would mean that author of the magazine page actually created the advertisement themselves. That's not the same thing at all, because that would imply the author of the magazine page would then have full rights over the advertisement, which they do not. Current copyright law does indeed treat fully independently derived expressions that are the same as separate expressions, in the rare cases where it happens.
Along the links from children to parents multiple things flow:
- The rights to use that expression. Many different kind of rights flow, everything from full rights to just the right to use it that one way. This is determined by the agreement between the copyright holder and the entity using the expression.
This is important to keep track of, because for a given parent expression, different children may communicate different rights. For instance, for a magazine, they might have the rights to publish an advertisement in the magazine issue, but they might not have the rights to put that whole page online on the web, because the advertiser may not grant "online rights" to the advertisement. They could still put their articles on the web, though, because the magazine owns full rights to their own works.
- The instructions on how to derive the parent from the children. This is a subtle point that would be easily missed if we were not eventually going to contrast this with software. For instance, a stock photo used in an advertisement is not generally just placed in the advertisement. It might be rotated 30 degrees clockwise, shrunk by a factor of 2, brightened 20%, and have the text "It's Great!" overlayed in Verdana 24pt font starting on the upper left corner.
This is also an important part of the expression because different legal effects can occur, based on how the work is used. The most important example of this is when the instructions describe a use consistent with fair use. That may mean that the parent has rights to use the expression in the way described with the instructions without permissions from the original copyright holder, but used differently (larger quote, longer snippet, etc.), normal copyright may apply. If we don't carry along the re-creation instructions, then we don't have the full picture of what's going on legally.
It is easy to see with all of this how one can make a living just tracking and enforcing the relationships that arise in the copyright domain. The larger the composite work, the more sources for a work, the more complicated the story becomes.
Note that even as verbose as this image is, and as oversimplified as the example is, even this isn't complete. For instance, does everyone have permission for the fonts used? How often do you think of that? In the real world, everything except maybe the stock photo and the quote would themselves break down into further composite expressions, but this should be enough to give you the idea.
Take a look at the Instructions for the Advertisement: Just because the advertisers bought space in the magazine to print their advertisement does not mean that the magazine can do whatever they like with the advertisement; they are obligated to do neither more nor less then what they agreed with the Advertiser. Also note that there are two instances where the owner of a composite expression, the Magazine Page and the Advertisement, where they also own one of the components. It's important to still show the sub-expressions, so one does not get the impression that the advertisement consists solely of a stock photo, which would be unlikely to be a compelling advertisement unless you got really lucky with someone's stock photo.
It is a common misconception that once you create an expression, you own full rights to that expression no matter what. In reality, what you own is certain rights to control how your work is used in other works. It is possible that someone else will completely independently come up with an effectively identical expression, and they will own full rights to it as well. It is recognized by the court system that fully independently coming up with the same expression is a very remote possibility, but it has happened before, especially in domains such as "musical melodies" where there are not necessarily a whole lot of distinct melodies to be copyrighted.
The derivation tree is just an equivalent way to represent the expression, one that highlights the complicated legal status of the expression; it is neither more nor less true, it's another view of the same thing.
Each of the resources in a given composite expression in the static case are physically proximal, because in order to be included, they must exist in a physical form, right on the final expression. One can not display a picture on a newspaper page without printing a copy of that picture in ink on all of the printed newspapers. This may sound stupid, but it will make more sense when contrasted with the software domain.
In particular, the most important example of physical locality is between the consumer and the expression itself. In the old, static case (think 1970's again), there is no way for many people to consume an expression at a distance. A fully independent copy of the expression must be delivered physically to the user in order for the user to experience the message; this is why the Reader is shown at the top of the derivation tree in the figure, because without the reader this is all an exercise in futility. For any media the user can capture and use (video via VCR, physical possession of a book, etc.), the user will always possess a copy, no matter what the original copyright holder may desire, short of theft or confiscation by the government.
There is one time where we can ignore the children in a derivation tree, and that's if some entity owns full rights to some expression. This is often the case for music. Large music companies often buy all of the rights to some band's song. As long as the band had the right to all other expressions they may have used to create that song (like sounds from sound effect libraries), and all rights are transferred to the music company, then there is no need to show the children of the song on any graph the song may appear in, because the status of the children has been made irrelevant. The music company, and by extension its customers, do not need to worry that some piece of the song may not be used in certain contexts. The music company has effectively encapsulated the rights of that song and made it as if the song was a totally original expression.
This is strong encapsulation. If we are only concerned about some subset of activities, such as publishing a magazine, then we can drop off the parts of the rights transfer that don't matter to whatever we're concerned about, and we'll see weak encapsulation, which happens all the time. For example, in the magazine page we say the "Advertiser" owns the "Advertisement Copy", even though in reality the copy was written by some individual, who immediately transfered that copyright to the advertising company since it was a work for hire. Since the transfer was full, the Advertising Copy's original owner is hidden by the encapsulation, and we can say that the Advertiser owns it. For a more relevant example to you personally, you do not need to worry about the legality of using the clip art that Microsoft Office ships with; if you read your EULA closely, I believe you will find that one of the few rights actually granted to you and not reserved for Microsoft are the rights to use those pictures in most any way you would care to use them. (Of course this can change anytime, so don't take my word for it.) You can't resell them, but who really cares? For the sake of simplicity, we usually just encapsulate the rights and pretend we have full rights to them.
Notice that with both of these encapsulations, the tree is simplified substantially. The magazine need not worry about whether or not the advertisement violates any copyright, because the advertiser takes care of that. The simplification in the tree reflects the simplification in reality. In the previous paragraph, when I speak of encapsulating the rights to the advertising copy, I am really referring to the mental model you would use. These 'derivation trees' are simplified models of the real trees.
Unfortunately, encapsulation totally depends on the fact that the only type of derivative works are the ones so far described. The ability to encapsulate depends on the ability to make reasonable assumptions about what a person can do to an object. Not to beat a dead horse, but in the static domain, all one can do is copy and use in an expression.
A Thousand Cuts
So why did I bother enumerating all the properties of expressions, such as locality and encapsulation, and going to such effort to show how the expression model works? To show how each and every one of them is broken by modern communication.
Digital expressions enable many more relationships between expressions. While conventional law might be modified to take one or two of these into account, I think you'll agree that when all is said and done, there is a qualitative difference between static and dynamic expressions, just as there is a qualitative difference between dead and living matter. Trying to patch the concepts and thus the law is a lost cause.
In order to use a conventional expression, you must have a copy physically present with you. Even television and radio programs must be transmitted to your physical receiver, where with the right equipment you can make a copy of the expression. With dynamic expressions, this is not true. A program can live on a foreign server and it may be impossible to get a copy for yourself.
What does this mean? It is impossible to archive a copy of these expressions. It's impossible to copy these expressions at all, for instance to make "fair use" of them, or to use one's "first sale" privileges.
The entire "ASP" (Application Service Provider) buzz of 2000-2001 was built around this idea that companies can host applications on servers that anybody can use from anywhere (or so the theory goes). It may be convenient, but it also means that if some company decides to purchase service from some ASP, it is technically impossible for them to obtain an archive copy of the "Service" (which consists of software) without the agreement of the ASP. We have the legal right to archive certain types of content, but in order for us to archive something, there has to be something local to archive! Much of the drive around ASP's on the business end derived from the impossibility of pirating the applications (or indeed even canceling your subscription in some cases, if the data was held hostage on the ASP servers, rather then the user's local hard drive), and allowing the ASP to fully control the use of the application.
The "ASP" label died with the dot-com crash, but the concept still lives on in almost every dynamic web page on the Internet. For instance, try archiving the software Microsoft uses to run Hotmail. You can't even access that software expression. You can only see the results of the software expression's execution as the Hotmail web pages.
In terms of derivation trees, it is as if that top link to the consumer has been severed. All of the links in the past required the physical presence of a copy, which implied the ability to do certain things, like make more copies of it. Some of these abilities were codified into what is now called the "First Sale Doctrine". If you do not have a local copy, suddenly those 'rights' become meaningless, because it is impossible to physically perform the acts necessary to copy something. This is having the very real effect of causing people to question the First Sale Doctrine, and some people with economic interests in not having the First Sale Doctrine around are trying to take advantage of this questioning to assert that the First Sale Doctrine should be eliminated entirely.
Note that a normal static web page is not non-local, as the web page itself is downloaded to your computer, and you can make a copy of that. For a dynamic web page, the static web page you receive is local, but the instructions on how to create that web page remain non-local, residing only as software on the original web server. This leads us quite naturally to the idea of...
Expressions That Generate Expressions
A static expression like a book will never generate another expression... it's a book, and nothing more. Dynamic expressions can lead much more interesting lives, where expressions can themselves generate more expressions, without the human intervention that's implied whenever one static expression is used in the creation of another static expression.
This happens all the time in the real world, but I think one of the clearest examples of this is the Gallery of Random Art page. The author of the Random Art page, Andrej Bauer, created the Random Art program. Considering the sorry state of post-modern Art, this qualifies as Art... in my humble opinion much more so then many other things labelled "art". Yet nobody sees the Random Art program, only the random art results. Some of these results are quite good, as shown in the archive on that page, although most are not; if they were a more normal desktop resolution many of them would make great desktop backgrounds.
So, here's the question: Who owns the copyright on those expressions? Technically, since Andrej Bauer wrote the program, he is the only human candidate to hold the copyright, so one may probably safely assume they default to him. But in a very real sense he did not create the thousands of art pieces output by the program. Furthermore, you used to be able to get a screen saver for Windows NT that also generates random art. If you grab one of the results of that program's execution, who would hold the copyright? In this case, modern law would say that the owner of the computer running the program holds the copyright. Yet in a way, these expressions are springing forth from nothing at all, with no distinct author. This is an extreme case, where the user has absolutely no input into the process at all.
Perhaps one could argue the works are not copyrightable, as there is no creativity in the pictures, only the program. (Of course the program's copyright is held by the author.) But those are awfully complex pictures to say that they have no more creativity to them then the phone book, and had a human an absolutely identical expression, we would say they are creative works deserving of copyright protection.
The ability of an expression to generate another expression makes it really hard to draw the line of where one begins and another ends, and if we can't even define what an expression is without ambiguity, the whole copyright system comes crashing down.
I picked Random Art as an example because of its extreme nature; the Random Art program essentially accepts nothing as input and creates output. In the real world, most expressions that generate expressions, such as Microsoft's Hotmail programs, take other expressions and do something with them.
A Deeper Philosophical Issue
I'd like to highlight one aspect of the above that is for the next generation to work out. What is creativity? As computers continue getting more powerful, it will get increasingly difficult to determine by examination whether a work was created by a human or a computer. Can the computer's work be said to pass the creativity test for copyright? If so, then why doesn't the computer hold the copyright?
Consider the Random Art program. Like I said, if a human were creating those works none of us would think twice about granting the human copyright over the works. When we refer to a work as "creative", are we referring to an intrinsic property of the work, such that no matter how it is created it is "creative", or a property conferred upon the work by how it is made? I can imagine arguments in support of both answers.
One assumption that copyright law is based on is the assumption that only humans are doing the creating. It won't affect my analysis, which is intended for the current time frame, not the future, but it will be an issue soon enough, and is interesting to ponder.
Programmatic Content Manipulations
The power of software expressions to manipulate other expressions is one of the reasons software is so useful, but it causes confusion as well. There is a whole variety of ways that an expression can take other expressions and manipulate them, beyond the standard copying to a new destination.
Framing & Context Shifting
One simple way of manipulating other expressions that doesn't even include what most people would consider "programming" is the one called "framing". Framing is when you create a website that splits the browser's screen into two or more pieces. One piece shows some website with presumably useful information, the other shows other content, typically ad banners or other money-making material, that has nothing to do with the useful site. The issue of whether this is legal or acceptable has come up several times in court, but (unfortunately) they all ended up settling out-of-court.
As early as 1997, TotalNEWS.com linked to hundreds of news sites on the web and showed them in a frame, surrounded by TotalNEWS.com's sidebar, and showing TotalNEWS.com's URL (because that's how frames work). An out-of-court agreement allowed TotalNEWS.com to continue linking, but to stop framing. In 1998, a dental website, Applied Anagramic Inc, framed content from another dental website, Futuredontics Inc. The court decision that resulted was ambiguous, saying:
... the Court finds that the cases cited by the parties do not conclusively determine whether Defendants' frame page constitutes a derivative work.
Neither case manages to provide any guidelines beyond "Framing might be bad." Despite the amount of time this issue has been with us, court cases have only given loose guidelines against deceptive framing, with little clear definition on what deceptive framing is. The solution to this problem was that the problem simply went away. Convenient, but doesn't leave us with much precedent.
The essence of framing is shifting the context of an expression. One example of this is the McSpotlight site protesting against McDonald's. In their own words:
McSpotlight hijacks McDonald's new site (using Frames) and deconstructs its carefully worded PR spiel.
Emphasis mine. Compare the context surrounding McDonald's web site to the context of the McSpotlight's tour. The entire purpose of McSpotlight's tour is to change the context with which you view McDonald's page, and thus change the message sent to the viewer. Unfortunately for the purposes of this essay, McDonald's web site has changed and the only part of the tour that works now is the home page and a couple of other isolated links, but you can get the gist.
Despite the legal ambiguity, several sites continue to frame content, even large ones like Ask.com and About.com.
While framing has attracted significant attention, it is by far the least technically sophisticated example of content manipulation I can think of. It does not actually affect the original content. If we take one step up on the complexity ladder, we find content-blind replacement scripts. These programs situate themselves between the receiver and the transmitter, intercept the message, and perform some of replacement on the words, paying no attention to the actual content of the page. For instance, you can see a Swedish Chef-ified version of my home page.
I call such manipulation techniques "content-blind" because they are not really looking at the content of the web page. Regardless of the contents of the web page, some manipulations will be performed on whatever is available. No matter what web page you run these scripts on, the results will be essentially the same.
One of the most interesting variations on this theme is the Shredder. The Shredder is an artistic statement about the nature of the web, which ties in rather nicely with the points I'm trying to make in this essay. From about shredder:
The web is not a publication. Web sites are not paper. Yet the current thinking of web design is that of the magazine, newspaper, book, or catalog. Visually, aesthetically, legally, the web is treated as a physical page upon which text and images are written.
Have a look at iRi through the Shredder. What's really interesting about Shredder is that it is itself an artistic expression, absolutely independent of the web pages it may produce as a result of use. The Potatoland.org website appears to contain many other expressions of a similar nature.
While behind each of these scripts lies some static source code, upon which somebody holds the copyright, the static source code does not reflect the true nature of the program/expressions. When you look at the iRi through Shredder, where does iRi end and Shredder begin? The only way to understand Shredder is in its relation to other expressions, which has no equivalent in the static expression world. Considered on its own, Shredder is meaningless; only when acting on something does it have any existence as an expression.
On the highest end of the complexity scale, there are programs that can take some content and dynamically alter it to some specification. Some censorware attempts to work this way, by "bleeping out" profanity and blocking pornography. Another example is translation programs like Babelfish that attempt to translate web content from one language to another. These can be very complex and the only limit to what they can do is human imagination and technical skill. What does that mean about the ownership and liability of the expression that comes out of such manipulation? Is there any legal difference between this and content-blind manipulation or framing? These are not easy questions to answer.
Once a static expression is created, it never changes. Yesterday's newspaper edition will be the same, even if you look at it a hundred years from now. A "web page" changes all the time. The homepage of CNN.com changes extremely frequently. Yet appearances can be deceiving. What exactly is changing?
It is entirely possible that the index page of a dynamic site, such as a weather site that allows you to specify your location, will never appear the same way twice, not even to the same person. On a truly mundane level, there may at least be a clock on the page that always shows the time the page was accessed. Yet when you reload a page twice, separated by two minutes, and only the clock changes, in some very real sense we want to say that intuitively, the page hasn't changed. The message changes on a moment by moment basis in the most literal sense, but that's not how we think of it.
It is very hard to make a systematic, formalized definition that matches our intuition, though.
One of the key characteristics of an "expression" is its concrete nature. If something is not concrete, it isn't protected by copyright.
Copyright protects "original works of authorship" that are fixed in a tangible form of expression. [Emphasis mine.]
For instance, if somebody makes a speech and no recording of it is made, there is no concrete representation and thus no protection. If a recording is made, then it is protected. Since there was no such thing as a non-concrete expression when these laws were made, many definitions don't even talk about it.
The problem is, software does not have to be concrete. At all. Not even close.
With all the various browsers, all the various personalization options, and all the various times that people visit, it is possible that no two people visiting a modern dynamic website will see the same combinations of pixels, even if they were sent exactly the same expression (HTML code), which may never happen. With many browsers, a simple keypress like "CTRL-+" or "CTRL-" can generate a different looking page then the one you are looking at now without receiving a new communication at all! Yet clearly, there is a pattern of similarity there; clearly there is something concrete there that should be protected. Even with a static web page, all browsers receive the same raw HTML source, yet the appearance of the site may change drastically from browser to browser. So we might guess that the set of all possible renderings of a site is also protected under copyright law. Unfortunately, for even a single page, that is a large set, and there are a lot of overlaps. For instance, imagine two pages that are identical, except for an important image which is different. Both pages can be freely rendered without images by a text-only browser, thus the representation for those pages would overlap, despite the fact the two pages are distinct.
We need a cleaner way of thinking about these amorphous expressions. It should probably match up to our intuition of when sites are 'stealing' from each other, because our intuitions are quite clear and pretty much everybody agrees that when it comes to online theft of design, layout, or even content, they know it when they see it.
And now the flip side of the patent debate: While software may be expression, it is undeniable that it can still perform real work, both in the digital domain and even in the physical domain, with the help of robots. In fact, any manipulation of information, and theoretically any manipulation of matter, can be described as a program running on the right hardware. Yet this software is still just communication, no matter what actions it can take. Along with the enumeration of all the differences between static and dynamic expressions I just took you through, dynamic expressions can do anything you can imagine.
Dynamic expressions (software) can and have directly killed people before; for example, see this list of injuries caused by software. For an example of several actual deaths, see entry 32, which was the focus of the now-classic paper (at least in software engineering circles) "An Investigation of the Therac-25 Accidents". (It reads more like a 60 Minutes special than a software engineering paper.) I daresay no novel has ever killed anyone directly, though the book it was contained in might have harmed someone.
How can the old framework hope to keep up with such a different beast?
It's worth noting that with programs, it's possible to violate the encapsulation of a message, because the program can sometimes reach into a final expression and extract the original parts, in a way not possible for static documents. For a classic example of this, see Online Snafu exposes CIA names, where the New York Times released a PDF document with selected portions "blacked out" to hide names, but did it in such a way that it was still possible to extract the original content from the PDF file.
This doesn't really add any issues that weren't already raised by smart messages, but it's interesting to add to pile of things smart expressions can do that old software can not.
Conclusion (The Funeral Procession)
The world "real" appears a lot in this chapter, more then good writing style would normally dictate. There's no way around the fact this chapter sounds so theoretical... well, there's one way, which is to make it about four times longer and show four or five examples of each point, but there's no way you'd sit through that. Instead I want to emphasize that each and every point here is backed up in the real world by real events. I've listed several examples already, there's more where that came from, and if you keep your eye out, you'll see more go by. As abstruse as this seems, each little point is manifesting itself in real effects, and the cumulative strain on the concepts currently used to think about copyright is cataclysmic.
The fundamental problems that copyright law was created to address still exist. There can be no denying it; in fact the problems have gotten much worse as the economic stakes rise. Unfortunately, the legal structures created to address these problems were based on certain foundational assumptions which no longer hold true.
If every foundational assumption of old copyright law no longer applies... expressions need not be in the consumer's hands, expressions can be promiscuous, expressions can't even be cleanly delimited... only one thing can be done: Throw out the old system! It's a bold statement, but there's just too many differences between the world of living, vibrant, intelligent software-based expressions and dead, static, constant matter-based expressions.
Next Chapter: A New Model for Copyright