Bad Idea of the Day

As Sam Boyd says, the drive in congress (apparently led by the increasingly-pissing-me-off Chuck Schumer) to provide intellectual property protection to fashion designers is a good case study in how far thinking about IP rules has strayed from the core purpose.

The idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create. The fashion industry is perfectly vibrant as is. The world is full of high-end fashion designers, low-end ripoffs, national and global middlebrow chains, endlessly shifting whims, stores and boutiques of all sort -- everything a person could want. Absolutely nobody is sitting around the house saying "I have all this money to spend on clothing, but there's just nothing new out there to buy."

We're doing fine. I'm tempted to say "what's next, licensing fees for recipes we use at home" but I'm afraid congress will pass a law mandating licensing fees for recipes we use at home. I call copyright on the idea of "scrambling" eggs.

Comments

I call copyright on the idea of "scrambling" eggs.

Sorry, too much prior art. Now if it were "scrambling eggs with a hairbrush", you might have something there. . .

Posted by RSA | August 9, 2007 1:48 PM

The idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create.

Wow. You just said in 26 words what it took Stirling Newberry 3,962 to say.
.

Posted by Grand Moff Texan | August 9, 2007 1:54 PM

I propose a combination involving two pieces of bread, peanut butter, and grape jelly, the latter each spread evenly across a piece of bread using the back of a fork. Haven't decided on a name yet.

The worst of it is, of all the serious problems to address, this is what little Chuckie is pissing his time away on.

Posted by DCBob | August 9, 2007 1:54 PM

This stuff always reminds me of when Led Zeppelin legally squashed a band called Little Roger and the Goosebumps who put out a single of "Stairway to Heaven" sung to the lyrics of the "Gilligan's Island" theme song. (You can find it online, g'bless the innertubes...).

Posted by elle loco | August 9, 2007 1:57 PM

Dibs on the patent for the procedure I like to call "Boiling Water in a pot". I'll start sending cease and desist letters next week.

Posted by Carlos | August 9, 2007 1:59 PM

While I agree completely with Matthew's IP-related jihad, I don't think it is adequate to say "We're doing fine." The relevant question is, are we doing as well as we could be were this legislation in effect?

Posted by Al | August 9, 2007 2:00 PM

Fair enough Al, but somehow I doubt we have a shortage of people trying to get into fashion design.

Posted by mpowell | August 9, 2007 2:18 PM

This stuff always reminds me of when Led Zeppelin legally squashed a band called Little Roger and the Goosebumps who put out a single of "Stairway to Heaven" sung to the lyrics of the "Gilligan's Island" theme song. (You can find it online, g'bless the innertubes...).

It must have taken a lot of damn gall for Zep to impose their IP rights on anyone. "Lemon Song" my ass...

Posted by Gabriel | August 9, 2007 2:24 PM

In other news, the Red Cross is being sued by Johnson and Johnson for using…
a RED CROSS. http://consumerist.com/consumer/lawsuits/johnson--johnson-sues-the-american-red-cross-over-red-cross-symbol-287790.php

Posted by the blackbird is involved | August 9, 2007 2:26 PM

Fashion designers are already protected by design patents and trademarks (for example, the pocket design on a pair of Levi's is trademarked). They just want some of that 95+ year lovin'.

Posted by Walker | August 9, 2007 2:27 PM

... the drive in congress (apparently led by the increasingly-pissing-me-off Chuck Schumer) to provide intellectual property protection to fashion designers is a good case study in how far thinking about IP rules has strayed from the core purpose.

It's easy to say this when *your* bread and butter industry has some (copyright) protection available to them.

Posted by Fred Jones | August 9, 2007 2:28 PM

Too late Bob, Smuckers already has a patent on it. Or rather had one, they got robbed. One of the appellate judges hearing their case admitted to a sexual relationship with a patent infringer and he didn't recuse himsef.

Is there no justice for IP innovators?
http://www.clevescene.com/2005-04-20/news/the-peanut-butter-jam/

Posted by beowulf | August 9, 2007 2:28 PM

The fashion industry better hope it doesn't get what it asks for. I mean, they can try and sue the Chinese knock-off companies...but the more likely scenario involves various fashion designers suing each other over recycled designs from decades past. Besides, can you imagine the time and expense involved with trying to copyright the massive piles of clothes, cuts, and patterns designers come up with every year...half of which are completely unsuccessful anyway? And how exactly are courts supposed to figure out which similar designs are copies versus some rival designer's take on the "hot look" for the fall?

I say let them do it. Then we can laugh at the rediculous fallout.

Posted by owenz | August 9, 2007 2:29 PM

The relevant question is, are we doing as well as we could be were this legislation in effect?

I disagree.

The relevant question should be "are we attaining a decent balance between preserving the freedom of our citizens and encouraging the creation of new clothing designs?"

If we are - then why mess with it? Sure the fashion industry might make another million a year, but if the industry is currently sustainable without added protection, then why turn it into another industry protected by a government granted monopoly? With all of the side-effects that such meddling entails?

If the fashion industry were failing because of this sort of thing there might be a case for doing this - maybe. If we felt that the need for new clothing designs was so important that it required government protections and enforcement to be put in place. But it's not failing at all so this whole issue is just another attempt by a big industry to put yet another roadbloack against competition in place and enforce their status as "kings of the heap".

Posted by NonyNony | August 9, 2007 2:29 PM

One place we DO need more copyright law is in typeface design...

There are currently no incentives to design typefaces (other than love) because it is perfectly legal to copy another person's design.

Hence Ariel via Helvetica...

Posted by Type-O | August 9, 2007 2:33 PM

Hence Ariel via Helvetica... - Type-O

For some bizarre reason, many in the scientific community just love -- absolutely loooooove Ariel (don't ask me why? I don't get the general obsession of senior scientists with sans-serif typefaces in the first place). So, from the point of view that Ariel represents a slight improvement over Helvetica, IP in this case might actually stifle improvements by making innovators, who innovating out of love or whatever, have to pay to innovate.

Posted by DAS | August 9, 2007 2:38 PM

I really doubt any scientist would be able to tell you the difference between the two type faces... you can only see it in a couple letters. Microsoft didn't want to pay for Helvetica so they had another company do a knock off of it...

Ariel is a fine typeface other than the fact that it rips-off someone else's work to avoid paying for it...

Try this quiz:

http://www.iliveonyourvisits.com/helvetica/

Posted by Type-O | August 9, 2007 2:52 PM

Also article here:

http://www.ms-studio.com/articlesarialsid.html

Posted by Type-O | August 9, 2007 2:54 PM

It's great that the Democrats have Chuck Schumer to brand us as the party of special benefits for fashion designers and hedge fund managers. It shows he's really in touch with the people.

Posted by KCinDC | August 9, 2007 2:55 PM

I would have fewer objections to copyright granting if th duration would be limited. Say, apparel could have two years of copyright.

Suppose that some descendant of Marius Scevola would hound all toga parties for infringement of toga copyright that his family held for the last 2500 years? And that would be the case if Roman Senate would extend the duration of the copyright as frequently as ours (say, every 10 years for another 10 years).

Posted by piotr | August 9, 2007 3:01 PM

would a breakfast burrito then fall under fair use?

Posted by simon charlow | August 9, 2007 3:01 PM

"The idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create."

Damn straight, Matthew.

And given that Matthew Scully's press coverage for his Michael Gerson article will give him incentive to create future work, could you please post the entire article here in comments?

Just cut and paste, please.

Since it won't hurt Scully's incentive to create if you do so, I expect this won't be a problem.

And since the creators of article don't deserve our money, I think cutting and pasting is a far better option than subscribing to The Atlantic.

(If Matthew is busy, someone else is free to cut and paste the Scully article here, since Matthew is apparently in favor of doing so.)

Posted by Petey | August 9, 2007 3:05 PM

petey,

i realize you think you're rebutting matthew's post, but actually, none of your "suggestions" sound all that bad. you don't quite reach the reductio i suspect you were aiming for.

Posted by simon charlow | August 9, 2007 3:10 PM

Yes, Petey, because clearly anyone who's not in favor of every new intellectual property money grab some industry wants must be in favor of abolishing copyright entirely.

Posted by KCinDC | August 9, 2007 3:11 PM

And given that Matthew Scully's press coverage for his Michael Gerson article will give him incentive to create future work, could you please post the entire article here in comments?

How do you know the press coverage will give him incentive to create future work? Did he tell you that?

Posted by Rambuncle | August 9, 2007 3:15 PM

"actually, none of your "suggestions" sound all that bad."

Indeed. I'm awaiting the article to be posted here in comments in the name of simple common sense.

Posted by Petey | August 9, 2007 3:20 PM

The idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create.

Matt, I disagree, and I wonder what your reason for thinking this is. Saying that copyright is not a matter of the creator's desert is like taking the "P" out of "IP." Surely creators of an item of intellectual property deserve the right to set the conditions for the disposal of their property, insofar as there is a right to property.

I for one would argue that IP and property in general are a matter of moral right. Now it is true that there is a historical tradition justifying copyright (and property rights in general) on utilitarian grounds. But a second historical tradition appeals to natural rights doctrine. Adam Mossoff, a law professor at Michigan State, has a piece outlining the second tradition, and its influence on the U.S. constitution here:

http://www.ipcentral.info/review/v1n1mossoff.pdf

For example:

State laws protecting intellectual property rights prior to the 1787 federal convention also reflected a Lockean influence; the New Hampshire legislature, to take but one example, enacted legislation to protect copyrights and other forms of intellectual property because “there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.”22 Moreover, the evolution and creation of new types of intellectual property rights in the nineteenth century, such as trademarks and trade secrets, followed the contours of a labor theory of property.23 The initial definition and protection of trade secrets as property entitlements, for instance, derived its justification from the courts’ belief that such rights were similar to other property rights born of valuable labor and already protected by the law.

The rest of the piece deals with digital copyright, but in relation to the general question of whether copyright is property. Take a look.

IANAL, and I don't know what to think about the application of copyright law to the fashion industry. I think it's probably misguided and Walker may be right that patent law is better applied. But this is not because copyright isn't a right.

NS

Posted by Noumenalself | August 9, 2007 3:27 PM

> Matt, I disagree, and I wonder what your
> reason for thinking this is. Saying that
> copyright is not a matter of the creator's
> desert is like taking the "P" out of "IP."

Patents, copyrights, and trademarks (incorrectly lumped into the non-category of "intellectual property") are entirely artificial creations of society. They were intended to _balance_ the historic right of the commons (e.g. any traveling performer could and did perform any other performer's song) with the desire to stimulate more innovation. As such an /artificial/ type of "property" was invented which would allow true creative innovators to collect exclusive royalties on such works **for a limited amount of time**, after which the work **would revert into the public domain as had historically been the case**.

This was explicitly discussed at the Constitutional Convention and in the supporting papers, etc.

Cranky

Posted by Cranky Observer | August 9, 2007 3:35 PM

Type-O

I got 7/10 correct on the quiz. I've not ran the numbers, but I think that's statistically significant (different than 5/10 expected guessing at random). I didn't know the specific differences.

The one thing that the article to which you linked didn't mention is that an 11 point Helvetica is often spaced/sized/kerned slightly differently than an 11 point Arial. I think this is just Microsoft trying to present their knock-off in the best possible light. But it's probably why the preference for Arial.

Although leave it to tenured faculty, senior staff scientists and the like to claim they can tell the difference between the two typefaces and claim one is superior even though they really can't. ;)

I personally don't have this sort of obsession ... I sometimes doubt whether I really am cut out to be a scientist: I don't have any bizarre compulsions regarding sans-serif fonts, standardized journal abbreviations or the many other things about which many senior scientists seem way too concerned.

If ever am in a position to just have a paper accepted because I am just that good -- I promise I'll use the abbreviations everybody actually uses rather than the "standard ones" in my bibliography (e.g. JACS rather than J. Am. Chem. Soc.), use serifed typefaces in figures, etc. It'll be my way of sticking it to the man ;)

Posted by DAS | August 9, 2007 3:38 PM

Petey,

Yes, you are absolutely correct. The copyright is the only thing that gives people any incentive to create. Just consider how much better is anything written today, under the protection of copyright, than the drivel written by the likes of Shakespeare or Dickens back in the dark ages.

And the same, of course, applies to the length of copyright protection: the quality of the created product is in direct proportion to the length of copyright (some argue that with posthumous copyright that law becomes square, not linear!). Again, just compare the low-grade stuff like original Disney works with the immortal masterpieces like Mulan 3.

Sheesh, why don't people see the obvious?

Posted by Synonymous | August 9, 2007 3:39 PM

Cranky,

Yeah, I know that's one of the rationales frequently cited. But the Mossoff article takes it to task.

NS

Posted by Noumenalself | August 9, 2007 3:39 PM

"I mean, they can try and sue the Chinese knock-off companies...but the more likely scenario involves various fashion designers suing each other over recycled designs from decades past"

They already do this. I have a law student friend who works for a fashion company doing research for these lawsuits. They're constantly suing people.

Posted by Ginger Yellow | August 9, 2007 3:40 PM

DAS
I got 7/10 correct on the quiz. I've not ran the numbers, but I think that's statistically significant (different than 5/10 expected guessing at random)

No, it ain't. p-value = 0.12
(non-cumulative binomial distribution, in case you're interested)
You have 12% chance or randomly pulling exactly 7/10 correct. (If you sum all the p-values for the 7/10, 8/10, etc, you get like 17%).

Posted by Synonymous | August 9, 2007 3:45 PM

"There are currently no incentives to design typefaces (other than love) because it is perfectly legal to copy another person's design."

And this is bad how?
There is a shortage of typefaces? Doing things for love makes god angry?

Posted by Maynard Handley | August 9, 2007 3:53 PM

I for one would argue that IP and property in general are a matter of moral right. - Noumenalself

I was actually just about to post a comment to the effect of something rather the opposite: it isn't just intellectual property that exists as a matter of encouraging economically beneficial results (e.g. innovation), but property in general. We have property not because we have an absolute moral right to own, e.g., land (coming from the Hebraic tradition, IMHO there is no such moral right), but because a system of private property/capitalism (with some modifications from an absolutely capitalist/free-market system) is the best economic system around.

Call me a commie pinko (although my views are very capitalist ... but in the manner of (de?) Soto, Sen and the like), but my response to

the idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create

is "how is this only true of intellectual property?".

The idea of any property is not that owners deserve to own their property (why does anyone deserve to own anything when they didn't even create it ... only the Creator created it ...), but that you, the citizen, deserve a world in which you can enjoy what you have managed to come to own and moreover a world in which property owners can leverage their property for what ends up becoming economic growth that may very well ripple through the economy to the benefit of all.

Posted by DAS | August 9, 2007 3:59 PM

"And this is bad how?
There is a shortage of typefaces? Doing things for love makes god angry?"

There is no shortage of POOR typefaces.

Creating a well designed typeface takes a very long time and an extreme amount of effort. The people that do it should be compensated for their work fairly and not be ripped of by corporations that do not want to pay licensing fees.

The number of quality type design would go up if designers could make an honest living from their work.

Posted by Type-O | August 9, 2007 4:08 PM

I want to pattent "round".

Posted by Mac | August 9, 2007 4:17 PM

The number of quality type design would go up if designers could make an honest living from their work.
The number of quality anythings would go up if their creators could make more money from their work. This is banal and utterly useless as a policy motivation.

DAS, completely agree, and I'd take it a step further: private physical property that's just sitting there, fenced up but unused while the owner waits for its value to go up on its own, should be returned to the commons.

Posted by tps12 | August 9, 2007 4:31 PM

Dan-
"The one thing that the article to which you linked didn't mention is that an 11 point Helvetica is often spaced/sized/kerned slightly differently than an 11 point Arial. I think this is just Microsoft trying to present their knock-off in the best possible light. But it's probably why the preference for Arial."

The Kerning/Tracking and size can be controlled by the user... there is nothing wrong with using a point size of say 11.3 if that makes the two comparable. Now, the kerning tables might be different but I suspect any difference is very minor.

In most typeface choices people like what they are most familiar with. If Microsoft would have came with Helvetica at a smaller size as the default they would dislike the largeness of Ariel.

Posted by Type-O | August 9, 2007 4:37 PM

In other news, the Red Cross is being sued by Johnson and Johnson for using…
a RED CROSS.

Without defending the (to me laughable) idea that Johnson & Johnson "owns" the red cross symbol for the purpose of designating first-aid kits, it is worth pointing out that the Red Cross isn't being sued for "using" a red cross, it's being sued for commercializing the red cross symbol, licensing it to companies for their first-aid kits. Outside of I-P issues, I think that action by the Red Cross is indefensible.

The entry of the AARP into the insurance market has destroyed its credibility as an advocate for the elderly and has led the AARP to support terrible legislation that not incidentally increases their insurance revenue. If the Red Cross wants to endorse products, it should do so like Consumer Reports (or Underwriters Laboratories) and not like Martha Stewart.

Posted by Warren Terra | August 9, 2007 4:39 PM

Everyone -- including writers, artists, musicians, and typeface designers -- is entitled to decent compensation for their work and training. Nobody -- including writers, artists, musicians, and typeface designers -- is entitled to have the coercive power of the state used to prevent others from using and sharing existing creative work. We tolerate the latter only as a necessary evil in order to achieve the former.

This is the Constitutional basis of copyrights, it is the economically rational approach to copyrights, and it fits most people's moral intuition.

Posted by lemuel pitkin | August 9, 2007 4:41 PM

tps12-

"The number of quality type design would go up if designers could make an honest living from their work.
The number of quality anythings would go up if their creators could make more money from their work. This is banal and utterly useless as a policy motivation"

I might agree with you going by the way I stated it above.

But if someone spends a year of man hours creating something and then somebody else can spend a week copying it then there is no incentive for the first person to go through the effort.

Copyright law should make it so the person who creates the design gets the economic benefits of their labor.

Posted by Type-O | August 9, 2007 4:44 PM

I should add that creative work is intrinsically very rewarding -- for many of us, the most rewarding activity life offers. The important thing about compensation for creators is that it be sufficient to support them at a reasonable level so that they don't have to spend their time and energy just making a living. After that, it's irrelevant. No creative work worth anything is motivated specifically by the chance to get rich.

Posted by lemuel pitkin | August 9, 2007 4:46 PM

Copyright law should make it so the person who creates the design gets the economic benefits of their labor.

Well, something should, if we want quality typefaces. Copyrights are just one option for rewarding creators, though, and often not the best one.

Imagine what would happen to the progress of science if instead of rewarding scientific innovators with tenured university jobs, we encouraged them to copyright their work and charge other researchers for access to it. Scientific progress would grind to a halt.

Posted by lemuel pitkin | August 9, 2007 4:50 PM

Lemuel Pitkin is putting it better than I am... :)

Posted by Type-O | August 9, 2007 4:50 PM

--} Everyone -- including writers, artists, musicians, and typeface designers -- is entitled to decent compensation for their work and training. Nobody -- including writers, artists, musicians, and typeface designers -- is entitled to have the coercive power of the state used to prevent others from using and sharing existing creative work. We tolerate the latter only as a necessary evil in order to achieve the former.

This is the Constitutional basis of copyrights, it is the economically rational approach to copyrights, and it fits most people's moral intuition. {--

And it is primarily 3rd party rent-collectors, not original creators, who are seeking to extend the duration of patent and copyright to "forever". Disney isn't exactly turning over heaven and and hell to find descendents of Hans Christen Anderson to pay royalties to; it is trying to monetize HCA's work in perpetuity at the expense of the public that granted the fiction of copyright.

Cranky Observer

Posted by Cranky Observer | August 9, 2007 4:50 PM

Copyright law should make it so the person who creates the design gets the economic benefits of their labor. - Type-O

But, speaking as a producer of IP myself, that ain't generally how it works. Creative person X generates intellectual property, but usually doesn't own the property or is in a situation where some other entity ends up with specific distribution rights.

"We need IP so that creative types can get rewarded" arguments would hold more water if creative types actually held the rights to IP. But that doesn't make sense anyway, as many of us are, well, creative-types, not business folk or good property managers. At least in my field, where one requires mucho $$$ to do anything worth while (which the drug companies have convinced the federal government to give us that way said drug companies can take our public domain work make incrimental improvements which can be patented and then rake in the big bucks), it wouldn't even make sense for us to try and profit from our IP ... it works out better for us to just get paid a stipend/salary and then let the big-boys figure out how to profit from our work (maybe throwing us some change by way of royalties every so often).

So yes, profit from IP does motivate those who can pay us creative types to be creative (or more accurately, lobby the government to pay us). But given the disconnect between the producers of IP and those who profit from it, I fail to see how my technically owning copyrights, from which for contractual and other reasons I'll never make more than a trifling amount of royalties, benefits me. I'm rewarded for my creativity by (hopefully at some point) being able to get a tenure track position, then hopefully tenure, then pay raises, better grants, etc. Any system which keeps the money flowing into those who lobby for my bills to get paid works the same for me. So why the emphasis that somehow my ownership of IP is magically going to give me an incentive to create?

Posted by DAS | August 9, 2007 5:01 PM

Above, "Cranky" maintains that patents and copyrights were always viewed as artificial creations of society--not as property--and he asserts that:

This was explicitly discussed at the Constitutional Convention and in the supporting papers, etc.

This is untrue. The Copyright and Patent Clause (Art. 1, sec. 8, clause 8) was approved unanimously in the Convention without any discussion. There were no public references to the Copyright and Patent Clause by the Framers, except for a pithy remark by Madison in Federalist No. 43, but there Madison invokes both justifications--individual and public good--for the clause. Jefferson, a Founder but not a Framer (he wasn't at the 1787 Convention), did critize patents as "embarassing monopolies" in a letter to an inventor that was later publicized (and cited by the U.S. Supreme Court in 1966), but his remarks here were not shared by his fellow Americans, including American jurists and politicians throught the Founding Era and up through the mid-19th century.

In fact, there are substantial Founding Era references to patents (and copyrights) as property rights on par with natural rights to property in land and chattels. It was common for American courts and legislatures to refer to patents as property, and to invoke natural rights justifications of protecting inventions as property rights.

I have just published a law review article on this issue, entitled, "Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent 'Privilege' in Historical Context." For anyone curious to follow up on the actual historical facts, you can download a copy at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892062

Adam Mossoff

Posted by Adam Mossoff | August 9, 2007 5:02 PM

I see from what Type-O said in response to Lemuel Pitkin, we don't so much disagree after all.

Meanwhile Lemuel Pitkin and, especially, Cranky Observer seem to have said what I was getting at ... and more succinctly too!

Posted by DAS | August 9, 2007 5:03 PM

But given the disconnect between the producers of IP and those who profit from it

You are making a huge generalization here. The practical application of copyright to typeface or fashion design is very different from its application to, say, computer software or scientific research. The latter are almost always produced by teams of people, sponsored or employed by corporations or universities, working interactively and building on each others' research; the former are often produced by single individuals working alone.

As the situation stands, for example, someone working for the Gap can legally walk into a student show at a fashion design school, snap a few pictures of student-designed clothes he thinks are cool, and have knock-offs for sale worldwide for the next season. I am firmly in the camp of those who feel that the student-designer who did the intellectual work deserves some control over the use and sale of his work.

Posted by James Gary | August 9, 2007 6:03 PM

I would just second what James says above...

Typically most veteran designers are their own bosses working in firms of 2-3 partners...

Most current type designs are either done by grad students in design or at type firms where the principles make money by also doing graphic design.

Posted by Type-O | August 9, 2007 6:53 PM

The argument that stronger IP for typefaces would produce better typefaces is pretty sound.

I'd still oppose it, though, because I'm afraid of a bunch of websites or other documents proliferating that would require unique, non-free fonts to be purchased by the viewer. We balance the additional original works created because of IP against the loss of derivative works and uses created by the commons. Typefaces, being modular glyphs to be stuck into other documents, have unusually many derivative works.

Posted by Consumatopia | August 9, 2007 6:57 PM

My view on this issue is quite simple. The vast majority of Americans would benefit substantially from shorter copyright terms (10 years instead of 95), fewer restrictions on derivative works, and fewer expansions of copyright law into new and novel areas. A small number of Americans would be marginally worse off, but it is unlikely that the effects on them would be ruinous.

Therefore, there is an extremely strong utilitarian case for weaker copyright restrictions than we currently have. (Note that this does not mean no restrictions at all. The public as a whole benefits from 10-year copyright as opposed to no copyright, since many works could not be created without a limited monopoly period such as this. The public does not benefit from 95-year copyright as opposed to 10-year copyright; that is simply rent-seeking on the part of media corporations.)

I am not at all convinced by the notion that authors have "inherent rights" to control the manner in which their creations are used. And regardless of what Adam Mossoff believes the Founding Fathers might have thought, that view is not in the Constitution. The Constitution makes a purely utilitarian case for copyrights and patents.

Posted by Josh G. | August 9, 2007 7:15 PM

I don't really think protection for typeface designs or fashion designs would put more money in designers' pockets, much as I'd like to see designers make more money. I just don't see a lot of evidence that top type designers are losing big money to cloners. People definitely clone their designs, but they don't typically sell those cloned designs into the same markets. The market for high-end unique type designs is small, and people who buy a lot of type generally don't mind paying good money for a good piece of type. They're not going to use type from "5000 typeface" collections to make an advertising piece. And the people who buy "5000 typeface" collections don't give a darn about buying quality.

Similarly, good fashion designers are known by name, and people who care about haute couture want to buy the name's clothes, not knockoffs. The designers typically put their logo somewhere on the clothes, if only on the tag, and knockoff designers that counterfeit that logo are already committing a crime. Knockoffs that just counterfeit the "look" are usually selling into a whole different market.

As an aside, the old "Microsoft cloned Helvetica" story is not true at all.

I worked in the type industry at the time Microsoft was building Arial. Arial is a good typeface, in fact an excellent typeface, built especially for Microsoft (at huge expense) by Monotype. It was specifically because Microsoft wanted a special typeface all their own and not Helvetica that they asked Monotype to make Arial.

For what it's worth, Helvetica itself is a clone of Akzidenz Grotesk, with some minor modifications. It happened to become one of the most popular fonts in the world because fonts were tied to machinery, and Linotype ended up with the most popular typesetters. And sans-serifs are a good choice for lots of industrial lettering and signage work.

Arial is based on Monotype Grotesque, not Helvetica. Monotype Grotesque predates Helvetica by about 30 years.

Of course, if you follow the lineage back, you'll find that Monotype Grotesque was based on earlier fonts, and so was Akzidenz Grotesk, and the fonts they were based on, and so on.

In an attempt to provide some amount of cross-platform document compatibility for MS Word, Microsoft asked Monotype to create Arial with the same character widths as Helvetica. This was a big undertaking, as Monotype Grotesque doesn't have the same widths, so characters had to be redesigned to fit into the given widths. Monotype did not, however, make the characters look like Helvetica.

To my eye, Arial is a slightly more graceful font than Helvetica, but they're both perfectly adequate grotesque-style sans-serifs. What makes Arial so good, really, is the excellent hinting that makes it highly readable on screen while not compromising the printed forms.

Posted by Don Munsil | August 9, 2007 7:28 PM

I'd still oppose it, though, because I'm afraid of a bunch of websites or other documents proliferating that would require unique, non-free fonts to be purchased by the viewer.... Typefaces, being modular glyphs to be stuck into other documents, have unusually many derivative works.

There are already plenty of practical real-world solutions that demonstrate the speciousness of this argument (e.g, documents in the PDF format have their fonts embedded in a not-easily-thievable manner.)

But more relevantly, web designers concerned with profileration could simply commission (or create) fonts for their sites and then make those fonts free to all for public use. If one believes that "information wants to be free," surely one should be willing to put a little effort behind one's principle, and not just use it as an excuse for leeching others' work.

Posted by James Gary | August 9, 2007 7:29 PM

good fashion designers are known by name

I'd bet there are a lot of designers in all fields who aren't known by name and would like to have some leverage against large companies copying their ideas for profit.

But maybe I'm wrong and all designers are pure-hearted (and financially independent) artists who create, indifferent to monetary considerations, for the sheer joy of it.

Posted by James Gary | August 9, 2007 7:38 PM

"The idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create"

The problem is that it has never worked that way, and was never intended to work that way except by a few framers of the US Constitution. Even Thomas Jefferson, the first patent examiner, said that inventions cannot in nature be the subject of property.

There was a case up for adjudication recently where somebody wanted to prevent somebody else from reselling something they'd bought from the original supplier on eBay. The details aren't that important. The bottom line is that the "logic" of "intellectual property" leads inexorably to exactly that situation: somebody who trades a product to you gets to control your use of that product forever, entirely to his benefit, either by prohibitions on your behavior with regard to its use, or by exacting a price for any and all uses of the product by the buyer.

"Intellectual property" is an oxymoron which needs to be destroyed.

There is ZERO direct causal evidence that it has EVER done anything to stimulate invention over what would have occurred without such a concept, and plenty of anecdotal and historical evidence that it has done exactly the opposite in terms of speeding up invention and the bringing of inventions to market.

Even the "free software" people have gone overboard with the notion of licensing. Some of them insist that a license that says its purpose is to ensure your freedom should restrict your freedom to use that product in ways that do not CONTRIBUTE to others having that same freedom. This is a novel use of "freedom" to restrict freedom.

In the end, the bottom line is: most humans do not believe in "freedom" for anyone but themselves. For everyone else, it's "stop" or "pay up."

Posted by Richard Steven Hack | August 9, 2007 7:54 PM

I'd bet there are a lot of designers in all fields who aren't known by name and would like to have some leverage against large companies copying their ideas for profit.

Big reputable companies are not in the habit of stealing small designers' designs, at least not blatantly. But let's grant that they absolutely can copy those designs blatantly if they want to. Making it impossible for them to copy blatantly would just cause them to be slightly more subtle, not put more money in the small designers' pockets.

What certainly happens is that some hip young upstart has a nifty idea (We'll put big racing stripes on handbags!), that idea gets popular, and lots of companies start making similar styles. But that's not copyright violation. The idea of racing stripes on handbags isn't copyrightable under any circumstances.

If handbags had copyright, it would protect against copying the exact same dimensions, layout, clasp, etc. The racing stripes would need to be the same color, position, number, etc. Change a few of these details and it ceases to be the same implementation, and thus not a violation. It's trivial for a large company to make those adjustments and be untouchable.

What that young hip designer would need is protection for the idea of marrying racing stripes and handbags, and there is no protection extant for something like that in any field at all. Patent is close, if the idea is innovative enough. And if a designer creates a really innovative handbag with something useful about it, like a better clasp, better organization, better ergonomics, that's patentable.

And if the handbag designer has a visual motif that's distinctive enough (probably not a racing stripe, but heck, the Nike swoosh is good enough), they can trademark that visual motif. Trademarks are even better than copyrights.

Basically, I just don't see copyright for designs of utilitarian objects putting a lot of dollars in designers' pockets. Lawyers' pockets, yes. Designers, no. I could be wrong; it's difficult to predict the result of new incentives. I'm only saying my gut feeling is that it would have very little effect on designers' incomes, and potentially spawn ugly lawsuits over similar-looking items, whether actually knockoffs or not.

Posted by Don Munsil | August 9, 2007 8:22 PM

If handbags had copyright, it would protect against copying the exact same dimensions, layout, clasp, etc. The racing stripes would need to be the same color, position, number, etc. Change a few of these details and it ceases to be the same implementation, and thus not a violation. It's trivial for a large company to make those adjustments and be untouchable.

That's a pretty sad attempt at the ol' reductio ad absurdum there, dude. Are we to also assume that if I take someone's novel, give all the characters different names (leaving everything else unchanged), and publish the altered version, I can count on my copyright being legally "untouchable?"

Posted by James Gary | August 9, 2007 8:41 PM

There are already plenty of practical real-world solutions that demonstrate the speciousness of this argument (e.g, documents in the PDF format have their fonts embedded in a not-easily-thievable manner.)

But more relevantly, web designers concerned with profileration could simply commission (or create) fonts for their sites and then make those fonts free to all for public use.

If everyone played nice, then no problems would arise. But there are network effects here. I'm not worried that I as a web designer (I'm not really) would have my options constrained. I'm worried that this could be used to make Internet Explorer only content. Microsoft would build a really nice font and only permit it to be distributed with Windows. Designers like the font and require it. Users who want to see the site as itnended must switch to Windows. Ironically, rewarding innovation in typeface design would then destroy incentive to innovate in software.

That's the tricky part about providing IP incentives for components of larger works. If the utility of one component outweighs that of all other components, and IP law grants a monopoly to that one component, then there's less incentive to compete on all the other components.

I'm kind of torn, because I think a world with way more awesome typefaces would be pretty awesome, but if that means that everything depending on typefaces becomes less innovative, I'm not willing to make that tradeoff.

Posted by Consumatopia | August 9, 2007 8:47 PM

I for one would argue that IP and property in general are a matter of moral right.

A moral right?
They are a massive, unjustified subsidy program that has long since started causing more harm than good. They are a grant by congress, constitutionally classified separately from actual property rights. Frankly, they are immoral in most cases and need to be radically curtailed, rather than expanded. We now have it in our power to distribute

Typefaces are a perfect example of a case where increasing IP law would decrease the availability of cool typefaces. While there might be greater incentives to create them, commoditizing their distribution would mean that I personally (and many people) would have much, much more limited selection available to me. I have nearly 300 fonts available to me right now, on my machine. Most of them I've never used, but the selection is useful whenever I'm working on a graphic project. I certainly wouldn't have gone out of my way to purchase them.

Reducing copyright to 14-20 years post publication (as per patents) and substantially expanding fair use to would be a good first step. While we're at it, an expansion of consumer rights to eliminate crippling EULAs and DRM, and grant owners the rights to actually own their property wouldn't hurt.

Posted by Anthony Damiani | August 10, 2007 12:36 AM

Consumatopia, lots of web designers already use microsoft-only fonts like Verdana all the time.

Posted by dbt | August 10, 2007 12:39 AM

Microsoft licenses them to Apple, I think. That duopoly is annoying enough, though fonts likely have little to do with it today, as any third competitor could just make knock-off versions if that became an issue, with designers including the knock-off next to the original just like Helvetica and Arial, I guess. Font rendering patents are always the excuse linux gives for its hideous text.

Posted by Consumatopia | August 10, 2007 12:57 AM

I have nearly 300 fonts available to me right now, on my machine.

I've got right around 30,000. If I wanted to check I'd have to wait ten minutes or so for the font list to populate. I do good deal of reproductions for existing artwork and logos so it's sometimes worth it to use whatthefont.com to see if I get a match rather than draw the lettering out from scratch.

Actually, if anyone knows of a commercial version of whatthefont, I'd pay for something that worked 90% of the time rather than the 50% I get for free.

Posted by Ed Marshall | August 10, 2007 1:14 AM

I call copyright on the idea of "scrambling" eggs.

I dibs omelets, pancakes, and frying bacon!

Posted by low-tech cyclist | August 10, 2007 5:49 AM

If you defend IP laws in this country, you are a corporate hack. End of question. They have gone too far, and anyone not beholden to these industries knows that.

Posted by soullite | August 10, 2007 6:07 AM

Ooh, ooh, ooh! I call copyright on the process of adding ingredients in order to modify flavor.

Posted by Thomas Allen | August 10, 2007 10:56 AM

Piotr's comment requires some exposition

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Suppose that some descendant of Marius Scevola would hound all toga parties for infringement of toga copyright that his family held for the last 2500 years? And that would be the case if Roman Senate would extend the duration of the copyright as frequently as ours (say, every 10 years for another 10 years).
Posted by piotr | August 9, 2007 3:01 PM
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Actually the proper term of a copyright is as follows (and this makes Matt's point for him): IF you copyrighted something prior to the release of the cartoon "Steamboat Willie" by Walt Disney, your copyright has expired, ELSE your copyright will never expire.

Posted by Doug | August 10, 2007 11:00 AM

As the situation stands, for example, someone working for the Gap can legally walk into a student show at a fashion design school, snap a few pictures of student-designed clothes he thinks are cool, and have knock-offs for sale worldwide for the next season.

And you really think that the typical use of intellectual property laws will be to allow fashion students to sue the Gap, rather than the reverse?

Really?

Posted by lemuel pitkin | August 10, 2007 12:14 PM