Kregos v. Associated Press, 937 F.2d 700 (2nd Cir. 1991)(cert. denied)
The fundamental copyright principle that only the expression of an idea and not the idea itself is protectable, see Mazer v. Stein (1954), has produced a corollary maxim that even expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself. Our Circuit has considered this so-called “merger” doctrine in determining whether actionable infringement has occurred, rather than whether a copyright is valid, see Durham Industries, Inc. v. Tomy Corp. (2d Cir. 1980), an approach the Nimmer treatise regards as the “better view.” See NIMMER ON COPYRIGHT § 13.03[B][3] (1990). Assessing merger in the context of alleged infringement will normally provide a more detailed and realistic basis for evaluating the claim that protection of expression would inevitably accord protection to an idea.
To be sure, we can (and do, for good reason) grant creators of information certain rights; we can even allow these rights to be sliced, diced, poked, prodded, traded, rented, and sold; but we haven’t converted the intangible into the tangible. At the end of the day there remains something fundamentally different between Blackacre and a Britney Spears album.
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While the holy grail of perfect DRM is plainly a major goal of at least some in the copyright industries, I deal in this section with reality. And there are very good reasons to doubt the meaningful impact of DRM anytime soon.
There are cases where using nonfree software puts pressure directly on others to do likewise. Skype is a clear example: when one person uses the nonfree Skype client software, it requires another person to use that software too—thus both surrender their freedom. (Google Hangouts have the same problem.) It is wrong even to suggest using such programs. We should refuse to use them even briefly, even on someone else's computer.
Those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not — indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world. And you have: trading passwords with colleagues, filling download requests for friends.
Ideas almost never remain static on the Web. They are launched like children into the world, where they are altered by the many different environments they pass through, almost never coming home in the same form in which they left.
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Although many would balk at defining themselves this way, the digital young are revolutionaries. Unlike the clucking boomers, they are not talking revolution; they're making one. This is a culture best judged by what it does, not what it says.
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