The Negative Space of Copyright
First, many thanks to Kal and Chris for offering their paper for the mobblog, and thanks to Randy for inviting me to join.
Second, in this post I'd like to focus on Part III of the paper, which, as Kal and Chris write, asks "whether the fashion industry has anything to say about the orthodox justification for more IP rights more generally." While I like the question, I'm a little bit disappointed by their answer, which seems to be: maybe. Part III compiles an intriguing and seemingly idiosyncratic compilation of other fields that, with fashion, occupy what Kal and Chris call copyright's "negative space": recipes, furniture design, tattoos, computer databases, open source software, microprocessor designs, hairstyles, perfume, magic tricks, and fireworks displays. Is there a thread that links these (and other) fields in an integrated theory of innovation law? Or is each field subject to the kind of socio-economic investigation that The Piracy Paradox initiates? The paper equivocates.
The equivocation may be understandable in this paper, even if I'd welcome a hypothesis or two. Perhaps a followup project will attempt an answer. I'll offer a preliminary answer of my own:
I start with the observation (credited to Mark Lemley) noted at TAN 176: "The lack of protection in some of these areas may be explicable as resulting from their nature as necessities: we all need clothes, haircuts, furniture, and good, and indeed the useful articles doctrine is aimed at ensuring that useful things are excised from copyright's domain." I'll go Mark, Kal, and Chris one better: In many if not all of these domains, the very "thingness" of the article -- whether that thing-ness is instrumental or symbolic or (as is usually the case, both) -- is precisely what creates its value to the consumer and what diminishes the appropriability problem from the perspective of the designer.
For me, this perspective resolves a key ambiguity in Parts I and II of the paper, which is that "fashion" refers both to the designs that we think of conventionally as the subject matter of IP rights and also to the designed objects themselves. Certainly, fashion involves positional goods, but is the positional good in question the Ugg boot itself, or the Ugg boot design? I own no Uggs, so I have no idea in the particular case, but it's possible that the piracy paradox isn't quite so paradoxical if rapid innovation in fashion design is confined mostly to the top of the fashion pyramid, and if the designers at the top (and their customers) traffic in authenticity and scarcity more than, or at least as much, they traffic in innovative design.
What does the mobblog think?