IED stands for “Idea/Expression Dichotomy.” The idea/expression dichotomy is one of those core concepts of common law that for some reason eludes the anti-copyright organizations behind so-called “Fair Use Week.”
So I take it these raw elements of punk are firmly in the ideas rather than expression category. What do they consist of? Rhythmic motifs? Maybe note sequences? Punk is fairly atonal and perhaps not the best example. I’m reminded of this anecdote that I read years ago in Wikipedia:
[Stephen] Schwartz uses the “Unlimited” theme as the second major motif running through the score. Although not included as a titled song, the theme appears as an interlude in several of the musical numbers. In a tribute to Harold Arlen, who wrote the score for the 1939 film adaptation, the “Unlimited” melody incorporates the first seven notes of the song “Over the Rainbow.” Schwartz included it as an inside joke as, “according to copyright law, when you get to the eighth note, then people can come and say, ‘Oh you stole our tune.’ And of course obviously it’s also disguised in that it’s completely different rhythmically. And it’s also harmonized completely differently…. It’s over a different chord and so on, but still it’s the first seven notes of ‘Somewhere Over the Rainbow’”.
It does say it’s an inside joke, so perhaps he wouldn’t have been sued for “stealing” a ninth note, or is that where “fair use” (maybe in scare quotes?) comes in? Is a specific note sequence copyrightable? What about a player piano roll? Or a MIDI file? What about sheet music? Certainly the copyright notice on P/V/G editions sold to the public contain dire warnings that it is illegal to use the sheet music for public performance. Is there no irony if it is a well known fact (as is commonly enough the case) that the band whose song is marked thus in some P/V/G or guitar tab songbook, happened to start out as a “cover band?” Is the very concept of a cover band illegal?
What about fanfic? I’ve heard horror stories about people in the Star Trek fanfic community being ceased and desisted because Paramount (or CBS, or whoever is the rightsholder this round of acquisitions) owns not only the TV series, movies, books, merch, but the core concepts such as the Federation, transporters, communicators, etc. Perhaps that’s why the new series The Orville makes a belabored point about having an alternative terminology for every organizational or technical concept in its particular universe–the Planetary Union instead of the Federation of Planets, quantum drive instead of warp drive, dysonium instead of dilithium, synthesizers instead of replicators, etc. Perhaps the “raw elements of science fiction” are less developed in the realm of expression and consist simply of facts about science.
Then there’s the ongoing Disnification of culture. What will be this year’s Disney blockbuster, with the happy meal tie-ins, the Hallowe’en costume tie-ins, the doggie chew toy tie-ins, etc.? This year, will it come from folklore, or classic literature? Maybe the latter, a dead-long-enough-to-be-out-of-copyright author such as Hans Chistian Anderson, perhaps? When re-telling of stories take place, I take it, the stories are ideas and the re-telling are expression? What about the characters of the stories? Certainly the particular visage of the (now) Disney character is a very hot intellectual property, but what about the image of the same character that forms in your mind as you read the dusty copy of the old book (or download DRM-free from a classic literature repository such as Project Gutenberg)? What if you saw the movie before you read the book? Does Disney then own a few of your brain cells?
One thing you probably remember if you watched any broadcast television during the DVD era (what, basically 10-20 years ago?) was the frequency with which movie studios (particularly Disney) would announce the DVD release of some blockbuster feature with the ad copy “buy it to own this Tuesday.” I’m not sure whether there is some business model reason that DVD release day was always on a Tuesday. I’m also unsure whether it was necessarily the case that the DVD’s were released to the “buy it to own” market prior to being sold to stores such as Blockbuster that existed back in those days, where one could rent DVD’s. CD’s and DVD’s are an interesting type of cultural artifact in that they’re clearly digital technologies, but they’re also clearly physical objects that one can carry around, eject from one player and insert in another, get autographed by the artist, sell into the used market, pretty much toss around like any other physical object. Thing is, even back then, the distributors of these media knew that the content, being digitally encoded, was basically one large binary number. So, while the ad copy giveth the impression of a thing you can “buy to own,” the fine print on the box states, circuitously but unambiguously, that the purchaser is purchasing license, not content. Same with the clickwrap boilerplate on boxed software titles, which were also an actually-existing thing during the DVD era.
Because the digital representation of an expression is literally nothing other than a large integer, creators are between a rock and a hard place. There is literally no way they can get paid reliably or fully if their distribution media are things, because the things can be pirated, thanks to original creations such as DeCSS. The inevitable end result is that what’s offered in the consumer market (and probably other markets) is not only a license rather than a copy, but is billed on a “per use” basis. If not on a “per use” basis, then a “per month” basis or some other basically finite license to access the content. Publishers of periodicals knew this decades ago; hence higher subscription rates for libraries than for individuals.
So it is that today’s fair use advocates misapprehend the idea/expression dichotomy. But there’s another dichotomy. This is also a true, rather than false, dichotomy. It is rooted not in legal precedent but in mathematics itself. You can have authorial rights over digital content or you can have general purpose computing. Pick at most one. It really is that simple, and it really is that starkly and truly dichotomous.