The University of Chicago Law School Faculty Blog

Bjork, the Swan, and Fashion's Low-IP Regime

A few notes responding to Randy and James:

(1) Randy, we haven't been able to find evidence of fashion industry lobbying for design protection between the fall of FOG and HR 5055.  We spoke with the head of the CFDA, which is the principal trade association for U.S. fashion designers, and he confirmed what we've seen in the public record -- i.e., that they hadn't done any substantial lobbying before.

The Core Idea

It is true, as Randy points out in his post, that the core claims of The Piracy Paradox have not been much criticized by the mobblog. Up till now I thought that was because, well, everyone just agreed with our excellent arguments. But clearly I was being overly-optimistic.

One can certainly view induced obsolesence thru the lens of credible commitments. If the IP regime protected fashion designs, a firm could credibly commitment to limited runs at high prices. To some degree this exists in the real world. Living in Hollywood has proven useful for this project. Down the street from me is one of the world's largest high-end denim retailers, American Rag. In it are Japanese jeans that sell for well in excess of $1000. They come in wooden boxes with certificates assuring buyers that they are a limited edition. (Limited editions can be found in the sneaker world, too. Up the street from American Rag is Undefeated, a specialist in rare sneakers that is always mobbed, ironically, by young Japanese tourists). The $1300 Japanese jeans can do this because pocket stitching, the most visible part of a pair of jeans, are often trademarked, and the jeans in question have expensive appliqués of the sort that IP law does protect. In a high-IP world, firms could likewise commit to buyers that none of their clothes will be widely distributed.

Industry Structure and Shoppingnorms

In my previous post, I suggested that Raustiala and Sprigman raise some very interestng issues about the structure of the fashion industry. Randy Picker asked similar questions about the industry's copying practices. I'd like to circle back to those questions, by way of a little speculation about copynorms.

Raustiala and Sprigman cite a very interesting paper by Fauchart and von Hippel on norms among haute cuisine French chefs. That paper observes that norms of attribution and originality among chefs sustain a level of innovation in recipes even in the absence of formal IP protections. One way of reading The Piracy Paradox is as claiming that norms also sustain an innovation-rewarding system in the fashion industry, again without reliance on formal IP protections.

Optimal Durability and Fashion

Notwithstanding a very lively discussion over the last four days, we have spent almost no time on the core claim of the paper, namely, that a “piracy paradox exists,” that is, “counter-intuitively, copying is not very harmful to originators” and that “copying may actually promote innovation and benefit originators” (p.5). I confess to skepticism about that claim. Let me lay out the idea as I understand it and then explain my doubts.

Industries, Practices, and Boundaries

Thanks to Kal and Chris for their thoughtful responses on "negative space."  I have one follow-up comment for each, less to push on the responses themselves and more to share how their comments have pushed my own thinking: 

Is Fashion the Future?

Another interesting question raised by Kal & Chris's paper goes something like this: Is Fashion the Future?

One thing that strikes me about the protection for fashion is that it's driven, as our authors say, by trademark and a focus on protecting and nuturing the brand.

This may be a stretch. In fact yes it is. But I wonder how similar the actual legal regime of fashion is to the de facto regime that is beginning to emerge for alot of easy-copy content, like alot of internet content, and like this blogging.

I think I am hardly the first to suggest that many content industries may be slowly migrating toward a trademark- or brand- driven industry dynamic. In other words, one where authors care less about copying itself, and more about attribution, or getting their content out there. An authorship dynamic that values exposure over control -- get famous, and then money somehow.

The question is whether Fashion is such an example -- I'm not sure. The other question is whether the future I've described actually is the future, which is a much larger question).

Negative Spaces & Meta IP

I want to first comment on the negative space discussion, which is very interesting.

The question of copyright's negatives is closely related to the question of meta-IP, which also no one understands. Why are some things protected by copyright? Others by patent? Others by nothing at all?

One theory is maybe something like a historical public choice theory. In other words, behind every grant of an IP right lies (1) a group who wants protection against misappopriation, (2) organized enough to press its claims, (3) without powerful opposition. Where that pattern has existed over time, you find a trail of intellectual property rights.

This leads to a highly path dependent, or founder's effect driven shape to the various IP domains. Copyright begins by dealing with one problem (books), makes up rules for books, and then moves on to everything that seems analogous. Patent begins with things like wrenches, makes up rules, and then goes onward from there. Under this theory there's no use looking at the nature of things, as opposed to the interest groups and litigants who were in a position to ask and get protection.

Maybe by analogy, if we were studying a tree that grows in Africa, if someone asked, why don't we find this tree in South America, the answer is that the organism didn't quite get there, and instead another tree is growing where it might have.

That explanation may be one of the more accurate, but perhaps less fun. I think there's alot to think about in Clarisa Long and Henry Smith's approach to these problems, which is to look at the information costs created by the items in question and the IP regimes in question. So, for example, (as Mike pointed out), copyright has a tendency to cling to physical things that, well, can be easily copied. Patent, at least traditionally, was stuck to the physical ebodiment of an invention. So some of the negative and positive spaces in IP might be helpfully understood this way.

Copyright's Domain

Michael is absolutely right that we do not offer an encompassing theory of copyright's domain in The Piracy Paradox. In part we felt we had taken on enough by tackling the links between fashion and IP. But at the same time we wanted to highlight what we saw as a deeper question at the core of IP theory generally. With limited space (and intellect), we merely laid out the question and offered some food for thought.

It is nonetheless striking to me that the project of delimiting what is in--and what is out--of copyright has received so little attention. Certainly others we cite in the paper, such as Jessica Litman, have pointed to some anomalous areas such as cuisine. But positive theories of copyright's domain are scarce. In part I see this as a species of a broader genus. Legal scholarship is often consumed, perhaps understandably, with what the law is. Fixing broken doctrines and explaining how they fit together are common projects in the legal academy. But less common is the project of delimiting when law is used or applied and when it is not. (In the other field I write in, international law, scholars have written reams of articles on treaties, but very little on informal, tacit, or non-binding agreements.)

Certainly work of this sort exists; Lisa Bernstein's fascinating paper on the diamond industry comes to mind, as does the story of Shasta Country ranchers told by Robert Ellickson. More is needed. Chris argued that we need to do this inductively and have a granular understanding of different industries before we go forward. I think a deductive approach is also possible. Either way, I'd certainly like to offer more thoughts on this in the years to come, and I hope others do as well.

More Cass on Libertarian Paternalism

Cass Sunstein recently gave a talk at the Woodrow Wilson School at Princeton on a topic he's addressed here before: "Libertarian Paternalism is Not an Oxymoron." If you'd like to hear it, you can go to their page, or just click here.

Some negativity about a positive theory of IP's negative space

Thanks to Mike Madison for his comments, which quite properly note (and lament) my reluctance (and Kal's) to supply a overarching theory of copyright's (and IP's) negative space. 

I feel Mike's pain, but at the moment I can't offer much relief.  I just don't feel that we know enough to have a general theory, or really that we need one yet.  Most importantly, I don't want to replicate what I think is the major problem with copyright law generally, which is over-reliance on a general theory of innovation without more than a passing acquaintance with the facts of any particular industry's innovation culture.  I'm less interested, at this point, in theories of copyright than I am in practices of innovation.  And before I arrive at a theory that crosses industries, I think we need to build up a set of observations about each industry in the negative space.