I’ve been reading Hot Property: The Stealing of Ideas in an Age of Globalization by former Perot running-mate Pat Choate, who I recently saw speak at the New America Foundation. Desultory skimming and what I gleaned from the talk suggest that it’ll be less hysterical than I’d initally suspected—he seems keenly aware that domestic copyright law has gone well beyond providing incentives for creation and become a tool for rent-extraction captured by content industry incumbents. But I’ve come across at least two very strange things.
First, he lumps together phenomena like software piracy and fashion knock-offs with counterfeiting of pharmaceuticals, airplane parts, and other things. The first two actually seem to have some important differences between them, but what they have in common is that (one assumes, at least) the consumer in each case knows that he’s not getting a Microsoft-authorized version of Windows XP, and that the Louis Vuitton bag he buys at a streetcorner kiosk for $20 isn’t the real deal. The putative victim there is the legitimate producer, who’s deprived of sales revenue—though I’ve got doubts in the latter case, in that I suspect there’s not a huge amount of overlap between the market for the streetcorner faux version and the wallet-busting original. But the second set of cases—counterfeit merchandise—seem better considered under the rubric of plain old fraud. Obviously, there’s a bit of similarity, in that absent the pirates, the legitimate maker would probably get that business. But the core problem here is that people aren’t knowingly buying a cheap knock-off: They’re getting sold a product that’s represented as really being the higher quality product suggested by the logo. Maybe Choate makes this point later, but in the early pages, he’s not bothering about the distinction.
Later on, he suggests scrapping our current copyright scheme for something to similar to what Larry Lessig has suggested: Have a 10-year initial term which copyright holders must then renew for some nominal fee. That avoids the problem of “locked up” content which no longer has any commerical value but which copyright-based transaction costs keep from being used or disseminated. The spin he gives it is that he’d allow the copyright to be renewed in perpetuity. I can think of an argument for this—encouraging further development of enduring works (as when old films are digitally remastered or transferred to new media)—though I don’t think it’s a great one on net.
But the argument Choate offers is that it would:
treat copyrights like trademarks. If Nike can own its trademarked “swoosh” forever, then the Disney Corporation should be able to own its Mickey Mouse copyright just as long.
In a sense, this is a variant of the first sort of confusion I mentioned: He seems to be conflating two legal instruments with very different functions and purposes. Trademark is mostly about fraud prevention—allowing a company to brand and distinguish its products from those of its competitors. The trademark itself gets its value mostly as an emblem of the product quality, so there’s not much to be gained from its eventual release into the public domain. And just as importantly, my understanding is that trademark is pretty well cabined in for this purpose. So it’s not an infringement for Apple computer to use “Apple” in the realm of computers while the music company Apple uses the word in the music realm—though, of course, that’s occasioned some legal wrangling now that the computer company has strayed into the music biz. Copyright’s function is, of course, the familiar one of providing incentives for creation. So it’s no argument for this proposal that it would create parity between legal instruments that previously lacked it for reasons intimately connected to their very different rationales.
Now what I’m wondering is: What will Pat say if he gets sued by Choate the school for tarnishing its name?