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?

Comments

[Christopher Buccafusco]

Professor Madison's comments are certainly correct when it comes to IP protection of recipes. The chefs that I spoke to all seemed to think that diners would continue to come to their restaurants even if other chefs copied their dishes. Presumably, there is something special, beyond the quality of the ingredients, about having Thomas Keller prepare your "Salmon Cornet," and chefs like Keller are aware of that. Thus, they could be satisfied with a low-IP regime knowing that diners will continue to come for the performance.

It is worth noting, however, that there are high-IP media that also function in this fashion. Songs are valued as much if not more for the musician's performance as for the particular arrangement of notes and melodies. Copyright law recognizes this and grants the artist both publication and performance rights. Thus, the authenticity and scarcity that characterize low-IP media are also valued, and protected, in high-IP media, and thing-ness can't fully distinguish between the two regimes.

[David]

There's an essential difference between the chef and the musician in this age of recorded music:

Although you can duplicate the recipe, you can't duplicate the chef's performance in another restaurant to any extent or for any cost (unless you hire that same chef,) while in the music industry, you can duplicate a recorded performance exactly for little cost. Hence, the higher IP protection for music.

[Christopher Buccafusco]

Except that people readily pay as much for a ticket to a Paul Simon concert as they do for a dinner at Per Se. The aura of the performance is enormously valuable in both media. The live musical performance must have some sort of thing-ness (authenticity and scarcity), and yet musicians are not content relying on this value in a low-IP regime. Thus, thing-ness can't account (entirely) for whether a given medium resides in one of copyright's negative spaces.

[Bruce Boyden]

There's another example of something traditionally placed in the negative space, which is games. Although a game board might be protectible as a graphic work, the game itself (e.g., the content of the rules) has generally been held not to be copyrightable. (Of course just like with recipes, particular expressions of the rules or recipes may be copyrightable, but the rules themselves are not.) I'm not sure you can explain that by a reference to its thing-ness, particularly if the game in question is a card game and has no physical instantiation. Rather, it seems to me that the reason why game rules, at least, are not copyrightable is that, like recipes, they are instructions for or bounds on activities. (Activity-ness?) There is creativity involved in designing the rules, but it is creativity that shapes the outcome -- how the game plays -- rather than expression by the rules themselves. This is obviously a sliding scale -- a musical composition leaves some flexibility in how the musical work is going to sound when performed -- but with games and recipes, there is a sharp distinction between the outcome (game play, cakes) and what is purportedly copyrighted (rules, recipes).

[David]

Mr. (or Prof.) Buccafusco--granted on the live performance, but like the chef's, no one can copy the musician's live performance except to record it. I can buy the sheet music of a song by (name your favorite musician) but my public performance of a song by (name your favorite musician) is not a copy of his or her performance of that song (even if it is an attempt to ape their performance as a tribute or a parody), and as long as I buy the sheet music and hence the right to perform it (or otherwise license the right to perform), I will not have infringed their IP rights. If I claim in advertising to be that musician, sell tickets, etc., then go out on stage and try to play the songs, I suspect I will have (extra-legal) problems greater than IP rights violations.

Recording changes everything in the music area and justifies the stronger protection.

[women-perfume]

" At a rough guess, a masterpiece. (" Bernard Pivot)) In France of the XVIIIth century, a named(appointed) dwarf Frog discovers the best flavor of the world. Of this feuilletonnesque idea, saturated by details and by ethno-olfactive waterfalls, Patric Süskind, young novelist munichois, made the Flavor, the new European best-seller. " (Patric Mauriès, Liberation

[starcycle]

Here is the film which wants funny and which, in fact, is not him(it) really. We follow the events of an amateur cyclist who likes the cycle but who does not succeed in leaking out in the profession. As a result, he(it) passes by all the stages(stadiums): the despair, the doping, the anger, the enjoyment also! And thus, we meet to laugh in front of the misfortunes of Ghislain, in May

[car amplifier]

Contrary to the fact that many people believe, the food system is the key of your installation because it determines the efficiency of the system but also its safety(security).
A badly chosen section of cable or an unsuitable fuse and you risk the fire!

We shall determine the good section of cable as follows:

The formula allowing to calculate the rough consumption of your system (volume to the max):

Running(Roaming) (in Amperes) = total Power RMS x 0.13

Attention: the current

[beer]

The african mainland is to scale worldwide a consumer weak person of
industrial beers being the object of official statistics.
For an entered under a reference number production of 1,3 of hectolitres,
Africa does not image that 50 of hectolitres so be it of the order of 5%.
Though to the inverse of the european mainland in regression, the african
market is in progression of a few pourcents a year and the ab ;
the South of South Africa belongs 5 first divisions brassicoles of the
world.
Gives a title to him of this paragraph they and stout, symbolize therefore
the dualism enters lagers of specimen they archetypal industrial beers of
european tradition, and black beers :
stouts evoke irish british customs

[motorcycle-auto]

Question of laws but particularly of common sense , it must find a motorbike
to 34 cattles.
Then immediately gateways close :
finish dreams him of the sporting last surpuissante!
But do not forget that you come to have your licence and that it must habituate
to roll on a motorbike, and that if your first is too heavy, or powerful excess
you will become of a true danger rolling.
Then the fact that some motorbikes would be and other no reduces the list.
You can to flavour with garlic to find on a list principal motorbikes :
Motorbikes to 34 cattles