This Ruthless World

Adventures in absurdity

Never Mind SOPA and PIPA: Intellectual Property Laws (Mostly) Suck

SOPA and PIPA are nothing new. They are merely the latest chapter in the history of intellectual property legislation whose effect is to silence and intimidate the creative public, while promoting monopolies and cultural uniformity. I will not insult the reader’s intelligence by claiming that merely because IP laws restrict speech, they violate the First Amendment — because that’s not (necessarily) true. Nor am I about to defend those who copy others’ work and pass it off as their own or use it to further their own commercial or political ends — because morally, that kind of conduct is beneath contempt. Moreover, I will note parenthetically that I am more sympathetic to IP laws that protect scientific research and technological innovation than those that deal with art, literature or trademarks — mainly because from a legal standpoint, the standards for demonstrating scientific or technological theft are much clearer and thus less prone to abuse. Those disclaimers aside, however, I do, as a whole, embrace the radical view that most IP legislation creates more harm than good, and its effects are the opposite of what is officially intended.

The idea of IP laws (and once again, I am leaving science and technology aside here) is based on five distinct myths:

Myth #1: IP laws are necessary to protect the artist/author. That is sometimes true, but more often than not, it isn’t. The economy of content-creation today is such that people who actually create get little (if any) money and little (if any) credit. Fashion and entertainment industries rely heavily on unpaid interns and others willing to give their work away for free for a “chance” to get their foot in the door. Moreover, even people considered artists, authors and entertainers often do not create what the public believes to be their work. (The 2007-2008 Writers’ Strike demonstrated that nicely.) Meanwhile, even when the real creator is not willing to give away his or her work, major fashion and entertainment businesses, with their sophisticated legal channels, can and do take advantage of people in ways designed to expropriate what they have created. At the same time, IP laws are so complicated that people who get screwed the most — actual artists and authors — have little realistic recourse against those who screw them. Make no mistake: IP laws are designed to benefit big business at the expense of those who create.

Myth #2: IP laws are necessary to foster creativity. They actually do something quite different: they protect rights owners from having to create. The reason manufacturers of obscenely overpriced women’s purses push so hard for the law enforcement to drop everything and chase counterfeiters isn’t because counterfeiters don’t let them create: it’s because they want to keep making money without creating anything ever again. Keep these goods a mark of status, and you can continue to sell them at astronomical prices without investing a cent in creating anything new. I brought up women’s purses, because the designer clothing and accessories industry demonstrates this most vividly: the runway is one thing, but in stores, designer wares change little year to year. It’s the logo they sell, plus one nifty design from thirty years ago, with some tweaking here and there. That’s what “protecting an investment” is all about in the realm of intellectual property: making money off a single item over and over, with decreased incentives for innovation.

After all, think about what “label dilution” really means: if all the peasants start carrying bags with designer logos on them, the logos will lose their patina of exclusivity, and rich people will stop buying. That will put the designer in a position of having to come up with something different to offer. What I want to know is — why SHOULDN’T it be this way? I really don’t think it’s a given that an idea should be treated the same as traditional income-producing assets, such as buildings. Why in God’s name do we — a supposedly liberal and upwardly mobile society — devote so much of our resources to enforcing pictorial symbols of social status and big business’ interest in profiting from them? One article I read some time ago, lamenting the existence of counterfeit goods, claimed that counterfeiting steals from consumers of luxuries, who pay a premium specifically for owning something that only a few people can have. Far be it from me to suggest that people shouldn’t have the freedom to spend as much as they want on whatever illusions they want, I really don’t see why the law should give a shit about the hurt feelings of Paris Hiltons of the world, who discover that their maids’ bags look like their own.

I rarely invoke the lawless past as an argument against a modern policy, but in this case, I have to say that for most of civilization, people had no problem creating without any intellectual property laws. Various societies at various times had their ups and downs for any number of reasons, but I am not aware of any country or period in history where there was a slump in creativity due to a lack of sufficiently strong IP laws. What really stifles creativity is actual restrictions on artistic expression — which is precisely what IP laws amount to. That, and a lack of publicly supported opportunities for children whose families are unwilling or unable to cultivate their talents.

Myth #3: IP laws are used to enforce legitimate rights. My experience as a lawyer is that the IP segment of litigation sees more shockingly frivolous lawsuits than any other area of law. I have often seen businesses use IP litigation to crush their competitors, particularly small start-ups that cannot handle the expense and the stress of lawsuits. Businesses that bring such lawsuits often do not care whether they win or lose in the end — the effect of the process itself, not to mention the preliminary injunction (the standards for which have gotten ridiculously lax) is sufficient to put one’s adversary out of business or extract onerous concessions, regardless of the merits of the claim. The most outrageous example in recent memory — though not from my own practice — is Kira Plastinina, a teen designer who was ground into oblivion by PacSun for marketing her creations under her own damned name. And based on my own experience, this kind of nonsense is quite routine. I had a client who was sued in a most ridiculous fashion for having an image of an elephant on something he was selling — although his elephant looked NOTHING like the plaintiff’s elephant — and the plaintiff made no secret of the fact that the real reason for this lawsuit was my client’s refusal to join a pricing club. Lest we forget, price fixing is illegal — but courts rarely punish big businesses for it, preferring instead to pore over ridiculous minutiae of the effect of a blue dancing elephant versus a red sitting elephant on sales of comparable products. I tell you, these “honest businessmen” who turn courts into muscle to maintain their monopoly often make the mob seem like fluffy bunnies by comparison.

Myth #4: IP laws give rights only to private parties, so they don’t create “censorship”. If there is a gag in your mouth, does it really matter who put it there? The rise of big corporations has eroded the demarcation line between private parties on the one hand and the government on the other. Preliminarily, the relationship between governments and big business is so cozy and so tight, that governments can just go ahead and use major corporations as their agents to silence dissenting speech on IP grounds. Secondly, major private interests that use IP laws to stifle political messages to which they object act pretty much as the government. The effect, in any event, is the same: content-based bans on political speech. And SOPA/PIPA would only make it easier.

Myth #5: IP laws protect jobs. Right. The way it works is like this: Step One: put people out of business by litigating them to death, and their employees out of a job. Step Two: Give them jobs. Step Three: Profit!! Kira Plastinina seems like a very talented young lady, and I am sure she’ll have no problem finding employment with some designing house. She’ll be fine — as long as she doesn’t work for herself under her own identity.

So there you have it. Perhaps my opposition to IP laws sounds extreme to many, but I do believe such laws are out of control as it is, and any degree of expansion would be absolutely intolerable. As I’ve said, I have no particular love for content piracy, but pirates seem to represent a much smaller danger to our culture and democracy than MPAA and Rupert Murdoch’s empire.


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