Nordstrom Knocks Off

Knockoffs are everywhere in the fashion world. But it is not everyday you see the same store selling the original AND the knockoff. According to, the shoes above are both at Nordstrom’s:

Have you had your eye on the beautiful Kate Spade ‘Charm’ heels, in all of their sparkly glory, but couldn’t bring yourself to shell out over $300 for them? I noticed that there’s now a knockoff available, and it’s a pretty darn close match, but for less than $100. It’s by Flounce, Nordstrom’s in-house brand. Of course, the original is available at Nordstrom too, and also in gold, silver, and black glitter. Which would you go for?]

The interesting question is who buys the original and who the knockoff. It would also be interesting to know how these are displayed; side by side seems hard to believe, but very close by?

R.I.P. Aaron Swartz

The Internet is on fire today with the news that programming wunderkind and open access activist Aaron Swartz is dead, at the age of 26, and by his own hand.

I (Sprigman) met Aaron back in the mid-2000s at Stanford University. I was a fellow at Stanford’s Center for Internet and Society, and Aaron was doing important work helping to create the architecture for Creative Commons, which was housed right next door to me in Stanford Law School’s basement.  I spent some time hanging out with Aaron, and enjoyed it immensely. He wasn’t a friend, but he was someone I liked and respected. And of course we had a lot of interests in common and Aaron loved to talk . . .

A lot of people have already written lovely, moving tributes to Aaron, including Larry Lessig and Brewster Kahle, two friends that Aaron and I have in common. But I have something to add.  (What I’m about to say is my words alone, not Kal Raustiala’s (with whom I share this blog)).

Aaron’s death is a tragedy. But his death is also a great injustice, for which a specific person must be held accountable. Let me explain . . .

Take a look at Aaron Swartz’s Guerilla Open Access Manifesto. In it, he decries the locking up of academic works in expensive academic journals. He calls on academics to make their work available to the public, not just to elites and universities. And he adds this proviso:

“We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”

Aaron acted on his convictions. One of his actions involved using MIT’s network to download a huge amount of data from academic repository JSTOR. It is unclear exactly what he planned to do with this material. I suspect he intended to sort out the public domain stuff in the JSTOR archive and release it to the public.

The government’s response was, in a word, insane. Carmen Ortiz (pictured left), currently the U.S. Attorney in Boston, indicted Aaron for violations of the Computer Fraud and Abuse Act, and threatened him with up to 50 years in jail (the original indictment contained charges with a possible maximum totaling about 35 years; a superseding indictment issued in September upped the number of felony counts, and increased the possible maximum penalty). Even though it was clear that Aaron did not intend to profit. Even though JSTOR itself said it had no beef with Aaron and would not pursue a civil suit against him.

The DOJ claims that Aaron “stole” the documents. But that’s complete crap — the documents are available for download to anyone with the proper university credentials. Aaron didn’t steal anything. He used MIT’s network to violate JSTOR’s terms of service — in effect, he checked too many books out of the (electronic) library. So now people go to jail for 50 years for violating online terms of service to download a bunch of academic articles? Are you fucking kidding me?

I strongly suspect that Aaron would have beaten the DOJ in court. I’m sorry we won’t see that day. U.S. Attorney Carmen Ortiz is out of control. She should face some serious consequences for what’s happened here. Starting with removal from her job.

I’m not saying that what Aaron did in the MIT episode was right. I would not have done it (even if I had the hacking skills to get the massive amount of data from JSTOR, which I definitely don’t). I don’t think that Aaron’s more forceful strategies for realizing open access are, on balance, good for the public in the long term. But of course Aaron’s agenda was much broader, and he spent most of his time not hacking into databases, but helping to build the infrastructure and norms that support open access. And in that, I believe that Aaron was right in both theory and practice.

In any event, I would understand if Aaron had been found guilty of trespassing and fined. Or even if he received some sort of minimal jail time . . . although frankly that should have been days, at most. But the government’s indictment was an absolutely bottom-barrel scummy move. Labeling Aaron a felon, and threatening to put him in jail for (in effect) the rest of his life is a move that only a prosecutor with extremely poor judgment and no real knowledge of the issues at stake could contemplate.

Finally, it’s worth noting that the DOJ had some history with Aaron that suggests impure motives. A couple of years ago, Aaron accessed the federal government’s PACER database, which charges very stiff fees for access to public court documents, and he downloaded a huge tranche of data and posted it publicly. Although he violated no laws, the DOJ and FBI gave Aaron a thorough going over. I strongly suspect that when they saw the chance to get even with him, they took it.

Shame on Carmen Ortiz. Shame.

If Ortiz has a conscience she will resign. If not, then President Obama should remove her.

Shanzhai skyscrapers

Kal and I have a new post today up at the Freakonomics blog, this time on an close replica in the Chinese city of Chongqing of a building designed by starchitect Zaha Hadid that’s currently being built in Beijing.

At upper left is a rendering of the Hadid original.

And here’s a picture of the “Hadid” copy.

Both buildings are under construction. At the rate things are going, the Chongqing copy may be done sooner than the Beijing original. The Chinese really have outdone themselves this time.

The question for us is why copying is so ubiquitous in China. In the case of the Hadid building, it can’t be cost. Given that design is an insignificant part of the total cost of a large commercial building, the copyists couldn’t have saved much. So what’s going on?

More Apple v. Samsung

We’ve written a lot about Apple and Samsung over the past few months, and the two tech giants continue to battle it out in courtrooms around the globe. But in the most important venue of all–the market–Samsung is winning.  However, Apple may be gaining, albeit very slowly.

As CNET reports,

Samsung continues to reign over the rest of the mobile-phone industry in the U.S., according to the latest stats from ComScore.

Looking at the three months ending with November, Samsung won 26.9 percent of all mobile subscribers in the U.S., a 1.2 point gain from the prior three-month period. Apple took home second place with 18.5 percent of the market, a gain of 1.4 points.

Samsung continues to wear the crown, but its share hasn’t grown much from a year ago. In contrast, Apple has slowly been rising up the ranks. For the three months ending with November 2011, Samsung’s U.S. mobile share was 25.6 percent. At the same time, Apple was in fourth place with a share of just 11.2 percent.

Samsung has enjoyed huge demand for its Galaxy S3 smartphone. But the iPhone 5 has given Apple a big boost. Some analysts predict higher sales than initially expected, especially since supply of the new iPhone caught up with demand in November.

The other top three mobile players haven’t fared as well, all watching their market share inch down for the three months ending with November 2012. In third place, LG grabbed 18.2 percent of the market, followed by Motorola with 11.2 percent and HTC with 6.3 percent.

Free Copyright Course

The big new thing in the academic world is the MOOC: massive open online course. Several firms have begun offering MOOCs on a range of topics, and elite universities (and some nonelite) are scrambling to figure out whether, and how, to embrace online learning in a serious way.

A lot of these courses have been in the sciences or engineering, but that may start to change.  One harbinger is a new course offered out of Harvard Law School by Terry Fisher, via edX. As this article from Education Week explains,

HLS1x Copyright (affectionately known as CopyrightX) will not be a MOOC. edX is an institution charged with using networked learning experiences to improve learning opportunities on campus and online, and not everything it does has to be full open enrollment. As the announcement of CopyrightX explains:

Enrollment for the course is limited because we believe that high-quality legal education depends, at least in part, upon supervised small-group discussions of difficult issues. Fidelity to that principle requires confining the course to the number of participants that can be supervised effectively by our 21 teaching fellows.

So while not everyone can play this year, the several hundred folks who do get into the course will have an opportunity to have a learning experience very similar to the one offered to students at HLS: lectures and carefully curated readings from a leading expert and discussions facilitated by senior HLS students. You’ll even have to sit for a three hour exam, just like everyone else at HLS, to get your certificate.

As someone who took both IP and Property from Terry Fisher, I can say that he is a terrific teacher. Anyone who can take this course should take it.

Restaurant Copying

The New York Times recently ran a fascinating article about the globalization of restaurants–in particular, the spread of New York-based restaurant and chef brands (such as Mario Batali) to Asia and other emerging economies. The article underscores the far greater value of a brand in a global marketplace. The photo above is of Batali’s new Hong Kong Lupa restaurant, which looks absolutely nothing like the original on Thompson Street (pictured below left).

At the same time, it points out how IP law is a local phenomenon. Nothing stops a savvy entrepreneur in a foreign locale from copying the menu, look, or even name of a well-known New York establishment. As the Times points out:

 Tom Colicchio, whose holdings in the United States include two Craftsteaks, was surprised a few years ago to find out that Mr. Sekhri had named his own Hong Kong restaurant Craftsteak.

“The guy never called me,” he said of Mr. Sekhri. “I never had a conversation with him.”

Mr. Sekhri denies knowing about Mr. Colicchio’s restaurants when he chose the name. Their restaurants “are different,” he said, adding that “we are supported by the trademark and intellectual property laws in Hong Kong. If you register the name, you own that brand, under Hong Kong law.”

Mr. Colicchio said, “We called our trademark people, and they said we’d spend a lot of money but we weren’t going to get anywhere.”

Yet surprisingly, Mr. Colicchio was conciliatory. Mr. Sekhri is “by all accounts good at what he does,” he said. “I’m not bitter, and I wouldn’t be against working with him” on a future project.

Apple’s “pinch-to-zoom” patent invalidated by U.S. Patent and Trademark Office

News today that a second prominent Apple smartphone patent — this one on “pinch-to-zoom” (allowing the user to zoom in or out by moving two fingers apart or closer together while touching the display) has been invalidated by the U.S. Patent and Trademark Office.  This is the second PTO invalidation of a big Apple patent in a few weeks — the last one to be knocked down by the PTO, back in early December, was Apple’s “bounce-back” or “rubber-banding” patent (i.e., the bounce that you get when you scroll to the end of a smartphone’s screen).

In both cases, the PTO ruled that the Apple patent is both non-novel and obvious based on the existence of prior patents that disclose a very similar feature.

Here’s the most important question: The Apple “bounce back” and “pinch-to-zoom” patents were among the patents that the jury in federal court in San Jose ruled Samsung had infringed. But considering that the PTO has deemed that these patents are worthless, what should the San Jose court do now? Apple will likely appeal the PTO’s determination in both cases, so in a sense the validity of the bounce back and pinch-to-zoom patents is still up for grabs. But should a damage award based in part on patents that are of no current effect stand? Or should the court vacate the damage award and order a new trial on the question of damages? Or should the court at least suspend the damage award pending resolution of the patent validity questions?

One thing the San Jose court should not do is make final an award that may be based in part on bad patents.

Whither fashion copyright?

That’s the title of a post by economist Ed Lopez (pictured left) on Tyler Cowen’s well-loved Marginal Revolution blog.  Ed takes a look at proposals to extend copyright to fashion, which have been banging around in Congress now since 2006, and offers a number of reasons why they haven’t passed.

Here’s our take . . . For reasons we’ve explained, fashion copyright is not needed, and would threaten to undermine innovation in the fashion industry.  We know that some of our readers will be shocked by the suggestion, but maybe not every bad idea with money behind it succeeds in Washington?