Our latest in Freakonomics: this time on the possibility of gov’t-sponsored *legal* piracy sites in Antigua and Barbuda. Why would governments do this? It’s related to a trade dispute with the U.S., and WTO rules that allow retaliation for US misbehavior. Read on for the details . . .
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.
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?
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?
Bikram Choudhury is the founder of something known as “hot yoga”, which is an arrangement of yoga poses that have been known for thousands of years and performed in a very hot room. We’ve posted on Bikram before. Hot yoga has made him a very rich man. And copyright law has helped keep him that way.
Copyright law? Yup. Bikram claims a copyright in his particular sequence of yoga poses. If that seems strange to you, you’re right. Bikram’s copyright claim is complete bunk. The U.S. Copyright Office has ruled that Bikram’s routine is uncopyrightable — the poses of which it’s composed have been in the public domain forever, and the sequence is uncopyrightable exercise, not copyrightable dance. But Bikram keeps suing people. And because he has a lot of money and at least as much chutzpah, he keeps winning. Not because he wins his legal claims. But because he bombards his opponents with lawyers, and he makes them spend a ton of money to defend themselves. Eventually, they give up. It’s just not worth it to fight.
The latest Bikram target to wave the white flag is Greg Gumucio, the owner of rival hot yoga studio “Yoga to the People”. Gumucio was offering a product a lot like Bikram’s, a lot cheaper. But now Gumucio says he will change his offering.
Which points out a problem, one which isn’t limited to copyright law, but is often illustrated by it. The law on the books is one thing. The law out on the street is another. Wealthy people often can use the law to extract what they want, even when the law doesn’t properly give it to them. Bikram doesn’t have a valid copyright in the Bikram sequence. But he might as well. Until he comes up against an opponent with equally deep pockets, the law means nothing.
News today that United Airlines has filed a lawsuit pressing copyright and trademark claims against “Untied.com”, a United Airlines complaint site run by a Canadian engineering professor named Jeremy Cooperstock. Reports suggest that United got annoyed when Cooperstock re-designed the 15-year-old site to more closely resemble United’s own website (see screen shot, above), using colors and logos that look a lot like United’s. Cooperstock admits that his site looks similar to United’s, but he says that’s necessary because it is a parody and so must reference the real thing. Additionally, Cooperstock insists that nobody would think his gripe site is the real United Airlines site — especially after he recently included a pop-up window asking visitors to acknowledge that they get that it’s not the real airline’s site.
If Cooperstock’s site is indeed a parody of United’s, then he has wide latitude under both copyright and trademark and liability is unlikely. But it’s impossible to tell definitively because Coopersmith’s internet hosting provider has taken down Untied.com, apparently in response to a request from United. This despite United’s claims that is has no intent to have Cooperstock’s complaint site taken down.
UPDATE: Prof. Cooperstock writes to say that Untied.com is back up. (We checked – it is.) The site is a hoot and worth a visit.
We have a piece up at The Huffington Post weighing in on the latest fight between newspapers and Google — now the newspapers want Google to pay for linking to them in search results. Um, bad idea. We explain why.
The study finds that Megaupload’s disappearance benefited blockbuster movies — fewer people downloading the biggest films illegally meant more tickets sold at the box office. But the picture for all of the other, non-blockbuster, films was more complex. Megaupload’s shutdown appears to have actually decreased box office revenues for a wider category of non-blockbuster films.
The researchers speculate that less popular films may have suffered from Megaupload’s disappearance because fewer illegal downloads meant less word of mouth promoting good but lesser-known films. Put another way, there are lots of people who don’t engage in illegal downloading, but who hear about less popular films from those who do. Cut off the illegal downloads, and you cut off a potentially significant source of promotion. Which means that it’s possible — although it is important to understand that this study does not offer definitive proof — that illegal downloading is, on net, a benefit for at least those (many) films that don’t enjoy the sort of marketing budget that Hollywood devotes to Transformers 3.
So, what does this all mean? It’s another example of how the effects of illegal copying are much more subtle than we are willing to acknowledge. Some movies are hurt by illegal filesharing. Other movies benefit. That may not change your views on the ethics of filesharing. But it does raise the question why the United States government is spending what will eventually likely amount to tens of millions of taxpayer dollars to prosecute Megaupload impresario Kim Dotcom. If this study has the picture right and filesharing does not appear to impose big social harms, should filesharing be an area of criminal prosecution by the U.S. government? Or should it be left to Hollywood to sort out through civil lawsuits?
Jerry Brito, a senior research fellow at the Mercatus Center at George Mason University and the director of GMU’s technology policy program, has alerted us to a new book which, we suspect, might be at the leading edge of a trend. First, here’s a link to the book, which is called “Copyright Unbalanced: From Incentive to Excess.” You get a sense of the book’s perspective from the title — the argument is that copyright has in effect become just another arm of big government . . . a system that no longer functions as an effective incentive to creative labor, but instead increasingly interferes with personal liberty, suppresses speech, and enriches government’s cronies at the public’s expense. What makes this book especially noteworthy is the impressive roster of libertarians who are interested in copyright, and are not particularly fond of it, including the National Review’s Reihan Salam, GOP strategist Patrick Ruffini, and the Cato Institute’s Tim Lee.
“Copyright Unbalanced” suggests to us that anti-copyright arguments are gaining ground among conservatives and libertarians. We wrote recently of the possibility that copyright policy could become a partisan issue — with the GOP moving away from support for ever-expanding copyright, and the Democrats left as the party supporting increasingly harsh laws. Why? Two reasons. First, because the entertainment industries heavily favor the Democrats, and the GOP has less to lose from taking a stand in favor of more carefully balancing copyright with the interests of users. Second, because the GOP might actually have something to gain. The libertarian wing of the GOP is the most intellectually vibrant part of the party, and tech-friendly libertarians are increasingly questioning the strength of copyright’s economic logic and noting that copyright law often favors the interests of old, boring incumbent firms against inventive start-ups.
A few days after our piece on the changing politics of copyright, the Republican Study Committee (a group of conservative GOP House members) put out a document sharply criticizing current copyright law and calling for deep reforms. That was on a Friday, but by Sunday, after what we imagine were some furious phone calls from entertainment industry lobbyists, the RSC report was withdrawn.
So here’s another prediction: this genie isn’t going back into the bottle so easily. The arguments against over-broad copyright are out there in the libertarian and conservative ecosystem, and they are spreading. Some smart GOP strategist, somewhere, is mulling over whether taking a stand in favor of more balanced copyright is a good way for the GOP to appeal to younger voters, who spurned the party this November. We’ll be hearing more about this.
The painting on the left is by a Chinese-born artist named Zheng Li. It’s called “Piano No. 9″. Li is not exactly an art-world fixture. For years, he lived in the U.S. and ran an art gallery in Roswell, GA. He has sold art to private individuals and corporations. But as far as we can tell, he hasn’t broken through to broader public notice.
That may change now. The painting on the right, titled “Piano Coloratura” and signed by someone named “P. Robert”, has been on sale in major outlets such as Kohl’s, J.C. Penney, and Z Gallerie. Li has sued all of these retailers, plus over 20 more who have sold “Piano Coloratura”, claiming that they are infringing his copyright in “Piano No. 9″.
Does Li have a case? Well, the paintings are certainly very similar, and that alone may get Li quite far with a jury. But if we look closer, it’s actually a really close case, and the correct outcome is difficult to call. Why?
Given how similar the paintings are it’s hard to believe that Li’s painting wasn’t copied. But if you break the paintings down, you’ll find that a lot of the copying at issue here isn’t actually illegal. For example, both paintings show a baby grand piano. But Li cannot own copyright in all pictures of baby grand pianos. And indeed, the baby grand in “Piano Coloratura” looks a bit different from Li’s piano. It’s shaped just a bit differently — and these small differences matter because all baby grand pianos look much alike, at least in their overall shape. Similarly, the “Piano Coloratura” piano is rendered at a similar angle to Li’s piano, but again, Li doesn’t have copyright in rendering pianos from the side. The pianos are also painted in a similar style using patches of bright color. But again, the execution of the style is not the same — the borders between colors are less distinct in Li’s painting — and, more broadly, copyright should not give any one artist ownership of a particular style of painting. Does impressionism belong to the first impressionist? Cubism to the first cubist? The same goes for colors. Copyright doesn’t allow anyone to own a color (trademark does, in a more limited sense that is not relevant here . . .).
So, is there a copyright claim? Yes. Li has a copyright claim in his original selection and arrangement of these otherwise uncopyrightable elements of subject matter, style, and color. In other words, Li has a copyright in the particular sum of the uncopyrightable parts.
The real question is how broad, or “thick”, a “selection and arrangement” copyright like this should be. Clearly, Li should have a copyright claim against anyone who reproduces his painting exactly — if the selection and arrangement copyright means anything, it must prohibit precise replication of Li’s painting, as would happen if someone simply pirated it and printed up a thousand copies. But how far should Li’s “selection and arrangement” copyright go in prohibiting mere “look-alike” paintings? That’s a very deep question, and one which is unsettled in the copyright law.
“Piano Coloratura” is not an exact copy. But it is pretty damn close. This is a borderline case. We’ll be watching.