Archive for the ‘General IP’ Category

IP protection for Fashion Designs

September 4, 2007


Patently-O serves up some fresh links on IP protection for Fashion Designs. A bill has been proposed to provide protection for fashion designs. I think this would be inadvisable for a number of reasons.

First, as others have stated, the fundamental motivation behind Intellectual Property rights is to ensure that a public good that is easily copied will not be under produced. I have not heard any arguments that fashion is underproduced because designers are not able to capitalize on their works. In fact, such an argument would be predicated on the misconception that designers sell designs. Designers do not sell designs: they sell status, and status cannot be protected by the newly proposed Intellectual Property law.

Status is already protected by current Intellectual Property law in the form of Trademark law. The blackmarket fashion “pirates” who do attempt to “pirate” status do so by producing an exact replica of the “real thing,” which includes wrongfully using trademarked designer labels and logos, as well as copyrighted fabric designs. Thus, these “pirates” are already breaking existing laws and can be prosecuted under those laws.

This newly proposed legislation is instead targeted at low-status retail outlets from Nordstrom to Walmart who produce fashion similar to the high-status designs of the more exclusive shops. However, these mass-produced “knock-offs” do not carry the same status or cache as their more exclusive counterparts. These “knock-offs” therefore do not compete with the originals and thus do not prevent innovation in fashion design. In fact, these low-status copies encourage innovation: high-end designers are constantly forced to find new ways to distinguish themselves from their mass-market counterparts. In the meantime, more and more Americans are able to participate in the business of being beautiful.

Even if IP protection would increase the number of fashion designs, I would question whether additional fashion designs provide any added social benefit. I am certainly not anti-fashion. I am the only heterosexual male I know who reads InStyle magazine. While fashion itself is valuable in that it gives us a common language of expressing ourselves with our clothing, the actual number and content of designs is fairly arbitrary. If the toga were considered the dress of a dignified and professional man, everyone commenting on this blog would wear one to the office.

Furthermore, I can see this type of legislation being enforced very asymmetrically. It will be used by big name designers to prevent small retailers and chain stores of lesser prestige from copying their styles. However, when that same big name designer goes into a trendy youth hot spot and spies some new fashion innovation and then uses that innovation in their next fashion collection, will the trendy innovators be able to assert their rights against the big designers? Seems unlikely. The upshot is that this law will be used to ensconce big name designers in their position as the arbiters of fashion.

Three Ideologies walk into a Bar…

April 19, 2007

Those involved in IP issues generally come from one of three perspectives: IP Maximalism, IP Pragmatism, and IP Abolitionism.

1) IP Maximalism

In the view of IP Maximalists, Intellectual Property is directly analogous to physical property. Rights in creative works should be perpetual and absolute. In this viewpoint, fair use is an inconvenient notion that was a product of a time with higher enforcement costs, but nowadays can be eliminated through digital rights management technology. IP maximalists are the driving force behind the DMCA, the Sonny Bono Copyright Term Extension Act, and the globalization of the US intellectual property regime. In an IP maximalist world view, intellectual property rights will do for the information revolution what the enclosure movement did for the agricultural revolution: clearly defined property rights will allow for an efficient allocation of capital thus creating economic growth. Piracy, then, is theft and must be minimized, if not eliminated. Major proponents of this view are the largest corporate rights holders (media, software, and pharmaceutical companies) and the IP Bar. Being that these companies have the most resources, are small in number, and have concentrated interests, the logic of collective action tells us that they will have the most success in lobbying for IP law reform in their favor.

2) IP Pragmatism

The Pragmatist view of IP comes straight from the Article 1, Section 8, Clause 8 of the US Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This embodies the traditional view of IP Laws as solving a public goods problem: because intellectual works can be copied effortlessly and without compensation to the creator, creative works and inventions will be underproduced unless the law requires the public to compensate the artists and inventors in some way. Traditionally, this has been through the grant of a temporary monopoly as in the case of patents and copyrights, but in other circumstances has taken the form of private copying levies or other schemes. Although they are interested in protecting intellectual property rights, IP Pragmatists generally tend to balance enforcement against public interests. In this view, enforcement of IP rights should occur only when piracy has a significant negative effect on the production of new creative works. For example, non-commercial copying of music may be tolerated while piracy of software by small businesses, sale of pirated movies, and importation of infringing pharmaceuticals would be punished harshly. Fair Use then becomes a central issue in the IP Pragmatists view: the Pragmatist wants Fair Use to be broad enough so that otherwise useful applications (such as scholarship and parody) are not suppressed, while at the same time limited enough that a healthy market for protected works is maintained.

This view is the traditional view, and probably the default view of most people who don’t have a horse in this race, though the general public is mostly unaware of how IP laws effect them and thus have no opinion at all. The tech industry has several proponents of this view. Some, like RIM and Hynix (makers of Blackberry) have been burned by patent litigation. Others, like Google and Apple, hope to profit from a broader view of fair use laws. Still others, like Intel and IBM, sell products that are largely unaffected by IP laws and would gain from and increased consumption of technology goods that would result from a more flexible IP regime.

3) IP Abolitionism

Complete opposition to Intellectual Property is a recent product of the Internet Era. This school of thought originated in the early computer research labs of MIT and Berkeley and spread throughout the emerging computer hobbyist culture of the 70’s and 80’s. In these non-commercial utopian environments, unfettered exchange was considered a virtue which allowed the community grow, and people to learn from one another. The explosive growth of the Internet allowed this culture to spread world wide, in the form of Linux and the Open Source Movement. As the Internet started affecting society at large, the powers-that-be started taking an interest in controlling and regulating the Internet. The Communications Decency Act and the Clipper Chip initiative stirred the heretofore unorganized IP Abolition Movement to action. They gained significant credibility among a growing online population by adding the protection of privacy and free speech to their causes. A new generation of internet users raised on Napster and Peer to Peer software has further swelled their ranks. The success of some Open Source Software (particulary Linux, Apache, and Firefox) have won them some friends in the high tech industry. However, despite their numbers they are still a small minority and have been unable to achieve significant changes in public policy.

See: Richard M Stallman, Electronic Frontier Foundation, “Against Intellectual Monopoly” by Boldrin and Levine, Lawrence Lessig


One major player hasn’t been mentioned here: Where does the Patent Office fall on this scale? My impression is that the Patent Office has its own institutional and administrative interests in mind, first and foremost, but otherwise tends to hew to the Pragmatist line as encoded in much of 35 USC and 37 CFR.