science and the arts through the free use of ideas and the reward of authors’ labors through protection of their expression, it may be “withheld” when the ideas implicated are “of the soft type infused with taste or opinion,” rather than being hard “building blocks of understanding.” See CCC, 44 F.3d at 71–72. Courts accomplish this withholding of merger “by assigning to the idea a different level of abstraction from the expression of it, so that the merger doctrine would not apply and the copyright owner would not lose protection.” Id. at 71. However, “[s]urprisingly little has been said by courts or scholars about how [to] determine the idea behind an expression.” Med. Educ. Dev. Servs., Inc. v. Reed Elsevier Grp., PLC, No. 05 Civ. 8665, 2008 WL 4449412, at *7 n.13 (S.D.N.Y. Sept. 30, 2008).
The parties vigorously debate what information a court may consider when determining the idea and expressions at issue. Defendants argue that because the Second Circuit assesses merger in the context of alleged infringement rather than initial copyrightability, the Court should consider the relevant facts and circumstances that apply at the time of the alleged infringement. Defendants thus frame their idea as the “laws” enacted by the governments that
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