Kal gives a talk on The Knockoff Economy at Google’s L.A. offices.
You should check out this great piece in The Chronicle of Higher Education by colleague and friend Siva Vaidhyanathan explaining why, when it comes to copyright law, universities are special — that is, to fulfill their vital mission in our society, they need and deserve extra freedom to copy and use works of art, literature, science, and technology. Here’s how Siva puts it:
“[U]niversities and their libraries have a special place in copyright law because they have a special place in society. Courts and even Congress have long acknowledged the essential role of copying in the educational process. That’s why the preamble to the section of the 1976 U.S. Copyright Act that outlines “fair use” specifies “teaching (including multiple copies for classroom use), scholarship, or research” as examples of “fair uses”—uses that, although they involve the copying of protected material, are considered noninfringing because they enable essential public goods.
Universities are not copyright-free zones—far from it. But they do perform special services that often demand flexibility and liberties that enable them to “promote the progress of science and useful arts,” the core mission of copyright as declared by the U.S. Constitution.”
We couldn’t agree more.
Take a look at this wonderful article in the Smithsonian magazine, which discusses the burgeoning science of “biomimicry” — i.e., innovation based on knocking off nature.
The article gives many examples in which innovators create new things by imitating natural substances, structures, and processes. For example, the wonderful blue morpho butterfly (pictured at left) gets is stunning color not from a pigment, but from the nanoscale arrangement of the plate structures in its wings, which are arranged to interfere with light waves in a way that produces the color. Now, researchers at cell phone firm Qualcomm have imitated the blue morpho structure in the new screens that it’s hoping to install in the next generation of e-readers — screens that use adjustable morpho-like plates to produce different colors with no loss of readability in bright light and very little use of power. And fashion designers are using the morpho-like structures in new fabric to produce brilliant, iridescent blue dresses that shine brilliantly in sunlight.
The article relates to an important point we make in The Knockoff Economy. Innovation doesn’t come out of nowhere. It often involves taking what already exists, adapting it, turning it to new uses, and making it better. Biomimicry is a great example. There’s something very human — and very innovative — in knocking off nature.
You have to hand it to Bikram Choudhury, the multimillionaire hot yoga impresario — the man has a lot of nerve. Choudhury has for years now been claiming a copyright in the particular sequence of yoga poses that his students (for reasons that escape us) choose to perform in stifling 105 degree heat. And he’s spent a lot of money on lawyers to sue yoga instructors — many of them Bikram’s former students — who dared to implement the same or a similar sequence of poses in their own studios.
All of this despite the fact that Bikram’s copyright claims are, in a word, absurd. The yoga poses Bikram uses have been in the public domain for thousands of years, so there can be no copyright in those. Bikram instead says he owns a copyright in the particular sequence in which he’s arranged the poses. But that doesn’t work either. Bikram claims that the poses, when performed in his particular sequence at 105 degrees, convey a variety of health benefits, ranging from the alleviation of diabetes to multiple sclerosis and obesity. In other words, Bikram claims that the sequence of yoga poses is functional. Fine, but functional things are not copyrightable. Copyright is for art and literature — not medicine. If the form of yogic medicine claimed by Bikram is protectable by any form of IP, it’s patent. And to get a patent on his sequence of poses, Bikram would have to show the U.S. Patent and Trademark Office that it’s novel, non-obvious, and useful. The PTO grants a lot of bad patents, but this one is probably a sure bet to be rejected.
Back in July, the U.S. Copyright Office issued a policy document essentially repeating the analysis above, and stating that yoga poses and sequences are uncopyrightable. You might have thought that the Copyright Office ruling would spell the end for Bikram’s litigation campaign. But you would have been wrong. LAWeekly has just run a long article on Bikram, wherein he makes clear that he’s continuing to sue — apparently, the Copyright Office ruling hasn’t deterred him a bit.
Not to blow our own horn, but we predicted this:
[T]he Copyright Office’s policy statement should put a stop to Bikram’s antics. Mind you I said “should”, not “will”. Because although the Copyright Office has this one right, courts have been known to ignore them. And Bikram is, if nothing else, persistent.
And from Bikram’s perspective, continuing to threaten suit is a completely rational move. The last thing he wants is to face more competition. Copyright lawsuits are expensive, and Bikram is in a much better position than his smaller rivals to pay pricey lawyers. And if he plays his cards right, he can tie competitors up for years, making entry into the hot yoga market pretty unattractive.
The point here is that we really have two different copyright laws. Bikram doesn’t have a monopoly on hot yoga under the copyright rules that you find in the law books. But Bikram may well succeed in suing many of his competitors out of business using the copyright law as it actually functions out in the world. Like a lot of law, copyright works a lot better for people with money.
From a friend and former student comes an example of knockoffs in the advertising industry. Hipster apparel maker The Real McCoy’s is not exactly setting a standard for originality with its nearly point-by-point knockoff of the ad campaign for rival purveyor to the young, rich, and fey, imogene + willie. Here’s the i+w original:
Writing on the techdirt blog, law and technology expert Mike Masnick takes note of our musings on whether marijuana trade names can be trademarked, and then suggests a (probably more important) question of his own:
“While Raustiala and Sprigman don’t get into it, it would seem like this creates another “pure” market to study, to see what happens in a brand-based market without trademark protections. Is copying of brand names common? Do less potent forms of pot try to draft off of more famous brands? Or does the market have a way of working itself out? It seems like a worthwhile market to study for someone enterprising.”
We agree. The emerging market in pot — well, it’s pretty emerged at this point in California — deserves a lot more study on a number of fronts. One is how the absence of IP protections affects innovation and marketing practices. Of course, studying something that’s mostly illegal and at best borderline respectable is perhaps not the best way to work one’s way up the academic ladder. But whatever. There must be some adventurous professor in a law or business school, or perhaps an economics or anthropology department, who would be willing to take a hit. So to speak.
UPDATE: And now uber-blogger Andrew Sullivan is jumping in to the fray!
As readers of our book know, The Knockoff Economy is about the relationship between creativity and copying, and the fascinating creative worlds that fall outside–for one reason or another–the scope of copyright.
In other words, we are mainly interested in what happens when knockoffs are legal. But of course there is a big world of illegal knockoffs, including counterfeit goods. Just how big that world is a subject of great debate.
Whatever may be true here in North America, it seems clear that in China, there is a lot of fakery going on. In fact, in some places the economy seems to be almost entirely driven by copying.
We’ve mentioned before the complex relationship between copying and originality in China, embodied in the concept of “shanzhai.” We’ll write more about that, but in the meantime, stories like this reinforce the idea that we need to learn more about the meaning, and the practice, of copying in China.
In stock and ready to ship — sooner than expected!