Be Serious, Dahlink

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Via Majikthise we learn that Rep. Bob Goodlatte (R-Starbucks) is pushing legislation to extend copyright to the world of high fashion, which currently operates outside its protection. (Note that this is separate from trademark and fraud protection: It's already illegal to sew a gator on a K-Mart polo and try to sell it as a Lacoste.) The idea is to stop mass-market department stores from putting out low-priced house-brand garments in the style of big-name designers.

First: Is this necessary? The idea behind intellectual property is supposed to be to provide creators with an incentive to innovate. Are we supposed to believe that Sears is digging into Armani's profits to the point where they're putting out fewer items each year? Are we supposed to believe that this effect is so pronounced that the loss in novelty outweighs the benefit to consumers of inexpensive, attractive clothing?

That's a pretty obvious "no" on both counts, largely because these aren't really overlapping markets for the most part. The theory behind copyright in, say, software and music is that the copy of the new Flaming Lips album or the latest version of Photoshop you download off Limewire really is a perfect substitute for the copy you'd buy off iTunes or from Adobe. (A better substitute in the former case, actually, since it's not bogged down with obnoxious DRM.) Many people who would've ponied up the cash for the genuine article will be perfectly happy with the copy, depriving the creator of a sale. But that's not really what's going on with fashion: The average guy who buys a $150 Paul Smith knockoff blazer at Men's Warehouse was not, in fact, about to drop five times that on the original.

If anything, there's an argument that knock-offs (again, I mean imitations here, not counterfeits) spur rather than depress innovation: As a certain "look" percolates down to the mass-market, people who want to stay fashion-forward demand something new and different next season to distinguish themselves from the H&M-clad proletariat. The result is probably acutally more, not less, creativity.

I'm also a little curious how, exactly, you'd enforce this. I have trouble imagining a standard that isn't either meaninglessly narrow (prohibiting only exact copies, which knockoffs aren't) or stiflingly broad. The shirt I'm wearing right now, for example, is a blue-and-white striped button-down with a sort of funky yellow/red/pink pattern on the collar and cuffs. Now, even from shirt-to-shirt in the same style from the same designer, they're going to be different because different parts of the patterened fabric are getting used for the cuffs and collar. But say you ban anyone using that exact set of fabrics. How close does another shirt have to be before it's too close? Does anyone who wants to mix stripes with a bright patterened collar now have to ask Etro for permission? Even a more narrowly drawn standard of that sort is going to cover a huge range of looks. And whose judgement determines when the patterns are too close? Looks that seem quite different to, say, a fashion critic might appear pretty much the same to someone who doesn't dash for the Style section each weekend. This image from the Times article linked above shows a designer bag an an Urban Outfitters knockoff, and while they're obviously using very similar materials, they're still also pretty different looking bags. If the former excludes the latter under new legislation, both the variety of looks available at any given time (as mass-market stores switch to producing stuff too bland to be regarded as a knockoff of anything in particular) and the incentive to innovate season-to-season will be severely diminished.

The always-fashionable Kerry Howley wrote in praise of knockoffs last spring—though the article, like the little black dress, is timeless.

NEXT: Truth (and consequences)

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  1. U.S. copyright law has already run so far afield (thanks in large part to the Evil Disney Corporation), that nothing surprises me anymore. I’m sure within a few years we’ll see a system of perpetual copyright.

  2. “The shirt I’m wearing right now, for example, is a blue-and-white striped button-down with a sort of funky yellow/red/pink pattern on the collar and cuffs.”

    Maybe we need a law to prevent Julian Sanchez from dressing himself. I mean, this is clearly a public health issue – won’t somebody think of the children’s eyeballs?

  3. Oh, come on, JD. Admitting that took more courage than I’ll ever have.

  4. Good grief. There have been knockoffs of fashion since at least the first magazines were produced in the 17th century, and now they’re concerned? I’m with Julian, exactly how does one determine what gets to be covered under the law? Ralph Lauren became rich beyond the dreams of avarice by copying clothes from the Groton and Miss Porter’s 1954 yearbooks, not by actually innovating. Will boarding schools have to pay him now to license the use of blue blazers? This will be a bonanza for the lawyer and miserable for everyone else.

  5. By the way: I, of course, am wearing something that is extremely tasteful, attractive, elegant and timeless.

  6. Back when I was actually something of a copyright “expert”, I used to include in my presentations a joke about Mom and Dad holding the copyright in their creative expression of me. May not be a joke in a few years, huh?

  7. O Rly?

    PicsPls.

  8. Look out, here come the fashion police!

    No, really…

  9. Alas, Mediageek, I don’t know how to post pictures. Quelle dommage.

  10. I’m wearing plaid.

  11. The fashion situation is further complicated by the fact that virtually no design houses make their own fabric. The fabric is usually produced by third-party mills that typically sell it to whoever wants to buy it. (That’s why you’ll see ties with the same pattern fabric being sold by Hugo Boss and Liz Claiborne at a roughly 5:1 price difference.) Design houses can contract for exclusive fabrics, but obviously those are extremely expensive since they are such limited runs. So the bags in the Times photo might actually be made of the exact same fabric from the exact same mill.

  12. Philistines, philistines all.

  13. I’m wearing a toga virilis with a purple fringe. I suspect that our busy daddy, gaius marius, wears something similar. I may have to sue.

  14. Just how far is this supposed to go anyway? I have this one pair of jeans that are my favorite because they are cut in an extremely flattering way. Can the company patent that particular method of cutting fabric and sewing the pieces together?

  15. This just fuels my conspiracy that the richest people want to be specially designated from their much poorer middle-class citizens. My guess is that it particularly irks them that with some shopping savvy, someone as poor as me can walk in the room and look better than a rich girl who spent 5 times the amount I spent on my outfit. I say off with their heads!

  16. isn’t the solution just for urban outfitters – a loathesome place nonetheless – to just make a series of bags with “designer xyz didn’t want you to have this” on the side?

  17. I think I’ve seen Julian’s shirt in stores. By any chance is it Tommy Hilfiger? If it’s the one I’m thinking of, it’s really quite nice. It’s also about the only way to make a striped Oxford-cloth shirt anything approaching original. The main problem with this is that there isn’t any real distinction between one, say, blue wool twill box-pleated skirt and any other garment with the same features. Skirts have been made on roughly the same pattern since humans started weaving fabric, about 11,000 years ago. Unless someone changes human bodies significantly, the clothes that cover them are going to share most of their features.

  18. I’m also a little curious how, exactly, you’d enforce this. I have trouble imagining a standard that isn’t either meaninglessly narrow (prohibiting only exact copies, which knockoffs aren’t) or stiflingly broad.

    You would let the applicant define the scope of protection the same way applicants do on design patents. The mechanism is that the applicant submit a drawing where the crucial visual features, “neccessary” for infringement, are shown in solid lines, while the extraneous features, not relevant to infringement, are shown in dotted lines.

    If you want to be especially favorable to the designers, then you let there attorneys submit many, many different drawings (or claims), where they can make different features or different combos of the features in solid lines. If the infringer doesn’t infringe drawing #1, then maybe drawing #2 or 3 or 4 or . . .

    I think the majority view is that a design patent can have only 1 drawing (well, one set of 7 views), but if we wanted to go to sui generis fashion protection, then they would probably let them provide as many alternative definitions of the scope of protection as they wanted to pay their patent agent to generate. When you count up the number of possible combinations of solid and dashed lines for a typical drawing, you will see that the number of possible drawings is some function of factorials — that is, lots of combinations. These applications could be quite huge.

    Furthermore, the applicant woul want drawings with both broad claims (lots of dashed lines) and narrow claims (lots of solid lines), because that way the applicant could later choose the broadest claim that was supportable in light of the “prior art” discovered by his opponent during licensing negotiation (presumably K-Mart).

    Is any of this a good idea? NO! for the reasons Julian points out.

    Further point: if the designers are really trying to “stop” knockoffs, then make the law so that the designer cannot license or otherwise alienate the newstyle ip. That way none of them will ever bother applying in the first place. (The designers don’t want to stop Sears, really, they just want a piece of the action.)

  19. This will be a bonanza for the lawyer and miserable for everyone else.

    Bwa-ha-ha. Exxcellent!

  20. i don’t generally see what’s so bad about knockoffs. i see ads in magazines for $400 shirts, $1500 watches, etc. – unless many more people than i’ve imagined make far more money than i’ve imagined – these aren’t marketed toward the average clothes buyer – yet their ads aren’t found just in GQ.

    so i think the point is to showcase the fancy stuff so that everyone knows that these are the high end fashions while the rest of us can try to duplicate to the best of our abilities at target. the elite keep their trendsetting reputation in tact and the rest of us get to look a bit better.

    everyone wins.

    it’s not like if the $400 shirt is better protected by copyright that i’m going to buy the $400 shirt.

    in short – they’re not missing out on money because of knockoffs, as those who must buy knockoffs to look fashionable can’t afford their overpriced duds anyway.

  21. Argh. I wasn’t going to rant about this – not really related to the original topic – but “jeans” set me off. Old Navy used to make perfectly good jeans. Now they make crap jeans. I don’t know what they call that fabric, but it isn’t denim. It’s thinner and much less ribbed. On top of that, they’ve changed the cut: the new ones aren’t bias-cut and I think the rise is lower than before. I wouldn’t care so much if they at least called them something different, but they don’t; they call them the exact same thing they called the old ones.

    But actually, this does tie in with the topic. If one maker changes the style of their jeans, what happens? Everybody else has to avoid doing anything similar for three years? How similar is similar? Who gets the protection of the law? Actually, I know the answer to the last one: those with enough money to pay off lawyers…

  22. Can the company patent that particular method of cutting fabric and sewing the pieces together?

    Jeans have been around for a long time. If the method of which you speak is so cool, then some company thought of it a long time ago and nobody gets a patent on THAT basis (RCD’s favorite: the old lack of novelty).

    On the other hand, if no jeans had those features until 2006, then that is an indication that they were difficult to think of and took extra big brainz to think of. That is the kind of thing we can and do reward with a patent.

  23. Speaking as a scientist, I have to ask the following question:

    What is this “fashion” thing that everybody keeps talking about?

  24. Julian: As long as the cuffs and collar match…

    I just went clothes shopping today.
    I need an explanation as to why I cannot find a solid-color long-sleeve non-oxford casual shirt. They do not exist. The few that I find in thrift stores I snatch up. I currently have four durable ones that are rotated through the work week.

  25. On the other hand, if no jeans had those features until 2006, then that is an indication that they were difficult to think of and took extra big brainz to think of.

    This is a non sequitur. The fact that something isn’t thought of until now does not imply that it was particularly difficult to conceive.

  26. As a certain “look” percolates down to the mass-market, people who want to stay fashion-forward demand something new and different next season to distinguish themselves from the H&M-clad proletariat.
    it’s not like if the $400 shirt is better protected by copyright that i’m going to buy the $400 shirt.
    Both of these are absolutely correct. One big market advantage that a design house has over the mass-market is turnaround. From design to hitting the shelves at Prada/Armani/ect. is one season. It takes mass-retailer’s (Sears’, JCP, etc.) at least another season to figure out what is selling well, create a copy, source the materials, produce, distribute and get the product to the shelves. If you look at a big-box retailer like Wal*Mart or Target, where the volume is that much greater, they are typically a year behind on fashion for just this reason. By the time a style hits Wal*Mart it is ‘old’ by even a Sears’ shopper’s standards much less somebody who bought the style when it was fresh off the drawing board.

  27. Jeans have been around for a long time.

    Yes, but so have dresses, button-down shirts, skirts, and just about every item of clothing we wear. The only truly “innovative” clothes I can think of are those bizarre things runway models wear that are never, ever seen on the street. You know, a hat topped by a scale model of the Paris metro made of gold-plated resin, and a plastic dress with fifteen ostrich feathers sticking up off of one shoulder.

    But as for clothes real people wear in the real world–what styles are actually innovative?

  28. Jeff, you have my sympathy. I am still fuming over the decision in 2002 by the Evil Cabal of Women’s Clothing Manufacturers to put lycra in everything. It doesn’t add one bit to the looks of things like wool jackets, but it does mean that the fabric will completely change shape in six months. It’s planned obsolescence as applied to women’s business suits. It’s also hideously uncomfortable, combining tight, baggy, and hot in one vile package. I can only hope the massive increase in oil prices will make the rotten stuff to expensive to use, and very soon.

  29. The fact that something isn’t thought of until now does not imply that it was particularly difficult to conceive.

    Maybe if there were ancillary technologies that were needed. It would have been difficult to invent the television before we tamed electricity. However, Jennifer is talking about a putative invention made from needles and thread. The fact that Levi Strauss and his progeny could have stumbled on it but didn’t should be considered as evidence of big brainz whether or not that idiot the patent law does this now in fact or not.

  30. “The fact that something isn’t thought of until now does not imply that it was particularly difficult to conceive.”

    Unfortunately, neither the US Patent & Trademark Office, nor the Federal Circuit Court of Appeals shares your opinion. The absence of a previous example of an invention in the USPTO’s files is often treated as nearly conclusive proof that it is an original work.

  31. Some facts for y’all about the (Dis)Honorable Goodlatte:

    1) He doesn’t even have competition at all in most elections. There is no other name on the ballot, not even a Democrat.

    2) His district has virtually no copyright-related interests there. I should know, I lived there for about 7 years, went to college there and couldn’t find a software engineering job worth getting in his district (they exist, but are very rare).

    3) He takes money from every copyright lobby that’ll send him money.

    4) He was one of the guys behind the DMCA.

    5) I have talked to him face-to-face and he’s a typical lawyer. Even if you’re a software engineer like me, and actually know WTF you’re talking about with DRM and other digital copyright issues, you’re wrong. Because you disagree with him and Goodlatte knows best, even if he’s never worked a day in his life in the IT or media industries.

    The man really is one of the biggest assholes I have ever met in my life. He epitomizes the corruption of the Republican Party because he doesn’t even go for issues that would benefit his district or the state overall like illegal immigration. Hate to break it to the open borders cult within the RP and LP, but illegal immigration is a severe problem in NoVA and parts of his district. My girlfriend has had illegals try to rape her twice in the past two years, and they’re the bulk of the crime here. Where is Goodlatte? Getting head from the copyright industries. State security be damned! We have FASHION KNOCK OFFS!

    More reason why I think we should just fire 90% of the federal government, rearm the militias and just admit that as bad as government was in the 19th century, it was far better then than now.

  32. The fact that something isn’t thought of until now does not imply that it was particularly difficult to conceive.

    Exactly. Wearing big, baggy gold pants is not a difficult idea to conceive of. But prior to MC Hammer most people had the good sense to refrain from doing so. And, come to think of it, people had the good sense to refrain even after MC Hammer.

  33. Bonanza for the lawyers indeed.

    Given the lifetime of a particular ‘fashion’, as long as someone can get an injunction, regardless of the eventual outcome, they have won.

    They don’t have to outrun the bear… just you.

  34. Thoreau,
    Fashion is an alien concept invented by hucksters.
    I wear clothes that fit and feel right. Currently a pair of Levi’s jeans (only brand that fits my wierd thigh:waist proportions) and a T-Shirt that says:
    “The British are Coming! The British are Coming!!”
    and on the back says:
    “Yeah, we’re that good.”
    Good thing it’s not casual Friday.

  35. But Hammer had the good sense to buy a $35MM house, then end up a baptist minister!

  36. The fashion industry puts the lie to the need for copyright. Music and software could likewise flourish just as well without it, albeit without the large bureaucratic corporations

  37. Exactly. Wearing big, baggy gold pants is not a difficult idea to conceive of. But prior to MC Hammer most people had the good sense to refrain from doing so. And, come to think of it, people had the good sense to refrain even after MC Hammer.

    Here is my handy dandy guide for what is easy to conceive of versus what is hard to conceive of:

    – if a lot of ppl get the same idea at basically the same time then it was easy to conceive of.

    – if only one person in the world gets the idea and the next person will not get the idea for 5 or 10 years, then the idea was difficult to conceive of.

    Bigness, goldness, bagginess and a pants-like nature don’t factor into my test one way or t’other.

  38. Copyright? As in 95 years of ownership rights copyright?

    That means that any clothing design that is created now cannot be re-used again until the start of the next century.

    My god! Maybe the clothing designs in Barbarella will come to pass.

  39. I need an explanation as to why I cannot find a solid-color long-sleeve non-oxford casual shirt.

    Jeff P.,

    Have you tried J Crew? Or American Eagle? Or Gap? Or (insert other generically-simple-but-conveniently-overpriced-purveyor-of-knit-casual-wear)?

    What is this “fashion” thing that everybody keeps talking about?

    thoreau,

    Turn to the left. Turn to the right.

    My god! Maybe the clothing designs in Barbarella will come to pass.

    We can only hope so.

  40. Julian,

    It’s very hard to judge how a change in a law will affect output.

    Your argument that knock-offs spur creativity by shortening the fashion cycle omits from consideration the fashion designers who might be in business if the fashion cycle were longer. Perhaps with the law in place, more people would buy the originals (since they depreciate less quickly) and keep them longer and with the extra money (from keeping them longer) patronize even smaller design shops, perhaps shops that do not currently exist due to the difficulty of keeping up with the short cycle.

    From a U.S. Constitutional perspective, I think a broad definition of “science and useful arts”, “authors and inventors” and “writings and discoveries” is necessary for such a law to be constitutional. I hope we’ll not find out.

    From a libertarian perspective there’s the question of whether the government’s role should even be to promote the progress of science and the useful arts, much less fashion.

  41. “That means that any clothing design that is created now cannot be re-used again until the start of the next century. My god! Maybe the clothing designs in Barbarella will come to pass.”

    Or they’ll make it retroactive like the copyright extension and we’ll be forced to switch back to wearing frock coats, detachable collars, etc.

  42. It’s all bunk. Our only hope at this point is that the IP lawyers will drive the entire economy underground. Nobody will officially engage in any productive economic activity for fear of being sued. It’ll be rather like the tax situation in the Congo where, I am informed by the World Bank, taxes amount to 134 percent of your pretax profits.

    The Chinese have the right of it. Deal with the patent system by ignoring it.

  43. Perhaps with the law in place, more people would buy the originals (since they depreciate less quickly) and keep them longer and with the extra money (from keeping them longer) patronize even smaller design shops, perhaps shops that do not currently exist due to the difficulty of keeping up with the short cycle.

    How exactly would the “originals” (i.e. actual designer clothing) depreciate less quickly than knockoffs? Last time I checked, clothing depreciates rapidly whether name brand or not. (Exceptions would be unwearable “fashion art” like Jennifer’s Paris metro hat example).

    My point: clothes, whether expensive, exclusive name brand or knock-off, wear out rapidly and are for the most part more cheaply designed and manufactured (frequently mass-manufactured) than in days of old, when care and attention were put into individual clothing pieces and materials were used not because they were cheap and bountiful (Lycra) but because they suited the article of clothing they were being made for both in utility, durability, and in good taste. Let’s face it: most manufacturers nowadays, designer or generic, make cheap crap that is liable to fall apart after a few washes or wears.

    anon2: I, for one am not going to drop a shitload of money on something that is an “original” when I know it will fall apart just as quickly (or more quickly, if it’s a very fine material like silk) as something I bought at a much lower cost. No welfare for fashion moguls.

  44. The only truly “innovative” styles of clothing I can think of in the last two hundred years are the hoopskirt and maybe the bustle. Neither of which I have ever worn or ever plan to wear. Otherwise, I still can’t think of any clothing styles innovative enough to qualify as an actual invention worthy of legal protection for the inventor.

  45. The shirt I’m wearing right now, for example, is a blue-and-white striped button-down with a sort of funky yellow/red/pink pattern on the collar and cuffs.

    Did ANYONE need to read the “Posted by” line after reading that sentence?

  46. What I’d like to see are knock-offs of the those massive arcitectural eurofreak dresses that Elsa Klench used to show on CNN. Seven foot wide hats and bodices made out of vacuum tubing and bicycles.

  47. I am a believer in natural law style rights – all true rights are inherent in our nature, granted to us by God, the Universe, hand-waving axioms, etc. Governments do not grant true rights, they merely acknowledge (or do not acknowledge) their existence.

    Obviously the existence of rights is distinct from the enforcement of rights, so I don’t deeply disagree with those left of center who argue that rights come from government, in the sense that in many places, government do enforce rights. however, I disagree that (a) there can be no enforcement of rights with out government; (b) that by enforcing some rights (and violating others), governments typically do more good than harm.

    …but then we come to intellectual property rights.

    I see no possible way that IP rights can be drawn from a Natural Law stance. If I say something out loud, and fail to get you to sign a contract saying that you will not repeat it, there is no violation of my rights when you do repeat it. If I demonstrate an invention to you, and fail to get you to sign a contract saying that you will not duplicate it, there is no violation of my rights when you do duplicate it.

    …and yet, it is clearly the case that innovation would be better incentivized by some sort of protection of works and concepts. The typical answer to this is use the social contract and implement copyright and patents. Of course, I hold that the phrase “social contract” is (a) a bald-faced lie about a mythical non-existent entity; (b) a misappropriation-of-trademark violation on the definition of the word “contract”.

    Yet I can easily imagine trademark and copyrights existing in a society with out government.

    The upshot is that (a) I think that natural law types should be honest that some privileges *are* created by government; (b) they should realize that private, consensual opt-in structures can replace government, ; (c) they should realize that these privileges sometimes create utility.

    On that note:

    I see nothing wrong with copyright being extended into other areas, provided that (a) it is privately implemented, opt-in, and consensual (a *true* social contract); (b) the duration is reasonable; (c) it is not intended as the thing entering wedge of the camel’s nose under the edge of the slippery slope, with the real goal being much longer copyright protection.

    How one implemented a free-market copyright or patent is a post for some other time.

    (the above originally posted to my blog here)

  48. So, TJIC, how does this apply to the copyrighting of clothing styles?

  49. any clothing styles innovative enough to qualify as an actual invention

    I don’t know about styles, but there have been plenty of helpful clothing innovations:

    zippers, velcro shoelaces, leg warmers, moon boots (good when I was a paperboy), tennis shoes, polyester, polyester-cotton blends, modern pantyhose (post WWII), bobby pins, scrunchies, bullet proof vests, Goretex, snaps, short sleeves and disposable diapers to name a few.

    Right now my favorite is tagless undershirts, which I much prefer to the old fashioned tagged ones. Why I had to spend the first decade of my career being scratched by tags is mind-boggling, but true. I know. I was there. (I even cut the tags out of some, but: (1) that is ineffective; and (2) not the same as a tagless t-shirt because the tag info is gone (was this one an L or an XL?)).

    None of this has to do with fashion. It does have to do with appreciating that hindsight is easier in hindsight.

  50. I don’t know about styles, but there have been plenty of helpful clothing innovations: zippers, velcro shoelaces, leg warmers, moon boots (good when I was a paperboy), tennis shoes, polyester, polyester-cotton blends, modern pantyhose (post WWII), bobby pins, scrunchies, bullet proof vests, Goretex, snaps, short sleeves and disposable diapers to name a few.

    Things like zippers and Velcro are actual inventions; it’s one thing to invent a zipper and patent it, but another thing to try and patent the idea of using a pre-existing zipper in clothing. Same goes for artificial fabrics like polyester and Gore-tex; patent the invention, don’t patent the idea of making clothes out of it.

    And short sleeves are hardly “innovative”; they’ve been around for centuries. It doesn’t take a hot-weather genius to figure out that cutting fabric off of a long sleeve will result in more comfortable warm-weather clothing.

  51. Didn’t the Romans wear short-sleeved garments under their togas? Rule of thumb: if it predates Christianity, it ain’t innovative.

  52. Jennifer, you do realize that somebody will now spend the next hundred or so posts arguing with you over the definition of Christianity, right?

  53. Smacky,

    Julian mentions an argument that knock-offs shorten the fashion cycle. It’s “his” argument, not mine. The idea is that “As a certain “look” percolates down to the mass-market, people who want to … distinguish themselves from the H&M-clad proletariat” must buy new designer clothes more frequently than they’d need to if there weren’t knock-offs.

    At this point Julian, not I, has already hypothesized that knock-offs produce a shorter design cycle than there would be were knock-offs prohibited.

    However, if the cycle were longer, because the hoi polloi were not allowed to buy inexpensive knock-offs, perhaps the buyers of the designer goods would wear them for, e.g., two seasons, rather than one. Perhaps there are fashion designers out there who do good work, but can’t get everything out the door fast enough to make a profit in a short cycle, so they do something else with their lives, or work for other designers who have the ability to turn a profit in a short cycle world. With a longer cycle there might be enough of these hypothetical designers doing original work that the long cycle leads to more innovation. I’m certainly not claiming that this would happen, only that it wasn’t even considered in Julian’s argument.

    If Julian is wrong, and prohibiting knock-offs wouldn’t lengthen the cycle, then his argument that having a short cycle produces more innovation is wrong, too. My post was only pointing out the overlooked component that could mean that longer cycles would result in more innovation.

    It’s a pet peeve of mine to see arguments that say the net effect of X will be more Y and then back it up by listing only the consequences of X that result in more Y but omitting the consequences of X that decrease Y. Sure, if you only count the items in favor of a particular action, it will look good, but it’s sloppy reasoning and bad economics.

    I put “his” in quotes because I don’t think Julian’s claiming to be the person to come up with the argument or even claiming that he believes it. He did, however present the argument.

    BTW, Just because I pointed out a missing countervailing element doesn’t mean I agree with the law that’s being proposed. I think it’s a bad bill, regardless of its effect on innovation in the fashion industry. However, I’d still prefer to see fewer unbalanced “net effect of X” arguments.

  54. Didn’t the Romans wear short-sleeved garments under their togas? Rule of thumb: if it predates Christianity, it ain’t innovative.

    Not of a type that I would want to wear. I can certainly play patent attorney and restate short sleeve shirt as: a pliable garment comprising:
    a generally tubular torso section defining a neck opening and a wast opening, the torso section sized and shaped to fit a human torso; and at least one generally cylindrical sleeve stitched to the torso section; wherein the sleeve is sized to be less than half the length of a human arm. ** continues with dependent claims for things like second sleeves, button fronts, pullovers, etc **

    But you don’t want me to start talking like that here, do you?

    Suffice it to say that when I say, I am not talking about the kind the ancients wore — and that is true in both my closet and my application.

  55. Xmas-
    No, they recognize a 95 year copyright would be shooting themselves in the foot; they’re only asking for three years.

    anon2-
    An excellent point, though I think the argument still holds up. First, it’s not necessarily that knockoffs shorten the fashion cycle, but that they increase the level of qualitative variance from one cycle to the next (though, of course, those will have a certain amount of overlap, insofar as lower variance will let older clothes “pass” next season). What I think is most likely is that lowering novelty-pressure in the upscale market would shift spending into other categories of consumption (a good thing? who knows?) rather than spread it across a larger number of firms-which wouldn’t necessarily increase the qualitative variation of clothing over time.

  56. It doesn’t take a hot-weather genius to figure out that cutting fabric off of a long sleeve will result in more comfortable warm-weather clothing.

    This is where we disagree. If there was a significant amount of time where people had not figured this out, then it does *by definition* take a genius. And I have watched enough Little House reruns to know that short sleeve shirts were not invented until the 1903 St. Louis fair. All right kidding about the fair. But the question for me still comes down to: did people regularly cut off half their sleeves in that 1800-1900 timeframe or did they not.

  57. But the thing is, Peege, what you’re talking about still isn’t some fresh and unusual innovation that nobody has ever thought of before. And with the exception of the quality of the fabric and stitching, how is a modern short-sleeved shirt any different from the ones from two thousand years ago?

  58. All right kidding about the fair. But the question for me still comes down to: did people regularly cut off half their sleeves in that 1800-1900 timeframe or did they not.

    They did. There were short-sleeved dresses in the early nineteenth century, but when Victorianism really kicked in people started covering up more.

  59. Oh and it also comes down to:

    when the first person trimmed his sleeves, did other independently think to do the same thing within a year or 2.

  60. when the first person trimmed his sleeves, did other independently think to do the same thing within a year or 2.

    As I said before, Dave, that was the style in ancient Rome. How are your short-sleeved shirts noticeably different from theirs, other than the quality of fabric and stitching?

  61. If they had short sleeved dresses then why did nobody apply that to shirts?

    I can see why you think they would have, but they (presumably) did not, so there must be more to the picture than meets your hindsight tainted eyes.

  62. Dave,

    I would assume that the short sleeves were less an invention than a luxury. If you only own one shirt, you’ll need it to “convertible”. As producing shirts became cheaper, people could afford to have short sleeved ones for summer.

  63. I like a stitched shirt with short sleeves. The Roman clothes were no good because they weren’t stitched. The dresses were no good because they would have made me feel like less of a man.

    If they had short sleeve dresses and two years later they had short sleeved stitched shirts, that is, well that is what I would expect to have happened.

    However, we are hypothesizing a world where they had the dresses, yet failed to apply that technique to tailored shirts. The fact that the history runs so counter to our initial expectations tells us that there is more going on than meets the eye — there were things going on that were inclining those brains to think differently than our (hindsight tainted) brains do.

  64. Dave, are you actually arguing that short sleeves are unique enough to deserve a patent, or are you simply arguing because you are bored?

  65. I like a stitched shirt with short sleeves. The Roman clothes were no good because they weren’t stitched.

    They weren’t? How were they held together–safety pins? Glue?

  66. FWIW, y’all probably want to bear in mind the distinction between patent and copyright. “Painting a picture” is not a novel idea that you could patent, but any particular (original) painting can get a copyright.

  67. If Julian is wrong, and prohibiting knock-offs wouldn’t lengthen the cycle, then his argument that having a short cycle produces more innovation is wrong, too.

    No, “his” argument (that having a short cycle produces more innovation) would not necessarily be wrong. If doing X produces less Y, it does not follow that doing X’ produces less Y.

  68. I would assume that the short sleeves were less an invention than a luxury. If you only own one shirt, you’ll need it to “convertible”. As producing shirts became cheaper, people could afford to have short sleeved ones for summer.

    Good point, but it raises a couple of possibilities:

    1. Maybe everybody thought of short sleeve shirts at about the same time. This is what I would expect if changing economic conditions played the central role you posit. Everybody observes the economic change and several tailors get the same idea in the same season. As you know from my previous posts, I don’t think this should be considered patentable, even though one of that bunch of tailors would have been first in time.

    2. A different possibility: the economic shift happened, but the tailors were not realizing that this would make short tailored shirts commercially viable. One renegade tailor, and only one, has this realization an invents the short sleeved tailored shirt. The tailor deserves a patent because his genius is that he realizes that changing economics make short sleeve shirts from an impractical product to a useful one. the mechanics of cuting down the sleeves is trivial, but the understanding of the short sleeve shirt market is not, which is why only one tailor comes up with the idea, instead of two or ten.

  69. Peege,

    What about the first barber? Where is his patent for coming up with the idea to cut hair short? Who is the 1920’s flapper lesbian responsible for thinking up short haircuts for women? She should be fuggin’ rich by now!

  70. I have no idea when short sleeves first appeared in cold climates, but I’m going to make a wild guess and assume that short sleeves appeared a very, very, very long time ago in warm climates.

    Can anybody back me up here?

  71. {THREAD JACK}

    WOO-HOO! Nebraska has passed shall-issue concealed carry! That’s the second one in as many weeks! (Kansas went shall-issue last week.)

    {/THREAD JACK}

  72. I have no idea when short sleeves first appeared in cold climates, but I’m going to make a wild guess and assume that short sleeves appeared a very, very, very long time ago in warm climates.

    Dave might say that those shirts were entirely different because they had no stitching. They were held together with glue.

  73. “Painting a picture” is not a novel idea that you could patent, but any particular (original) painting can get a copyright.

    Disagree on several grounds.

    First, painting a picture was at one time a novel idea that was very patent-worthy. The idea of painting is still recognized as one of the greatest alltime technological advances of mankind.

    Second, when a painting of, say, a bowl of fruit will automatically qualify for copyright, the scope of protection is quite narrow. Although the law of patents is different, there is a similarity in that if you define what your invention is narrowly enuf then you will probably be eligible for a narrow patent. However, that narrow patent, like the copyright in the fruit painting will be pretty harmless precisely because of the narrowness.

    Third, paintings probably could qualify for design or even utility patents, in addition to their copyrights. However, people don’t apply for patents on paintings because of economic and because of misconceptions about the patent law. Similar to how people used to not apply for business method patents until they figured out they could. i understand that there is some negative precedent in the design law area on aesthetic functionality or whatever, but that stuf is extrastatutory and vulnerable to revesal. In utility patents, I just think no one has ever bothered to try.

    None of this means that copyright and design patent and utility patent law should be confused, but the clear acoustic separation about what type of object is eligible for what type of protection is more hype than reality.

    Final note: I think Phil found an article I once wrote considering whether somebody could get patent protection on the idea of painting the Mona Lisa with Monica Lewinsky’s face. No more links to that, please, but I do still consider it to be an open legal issue. It stays open because the kind of person who initially thinks of that seldom has the money to speculate on a detailed disclosure and a searching application. That was true with the woman who invented the Monica Lisa. I know. I interviewed her. She had no work to send me (not that I expected any, I wasn’t that kind of author).

  74. Dave might say that those shirts were entirely different because they had no stitching. They were held together with glue.

    Let’s play this one out. If the shirts were prevalent in the glue era, then I would expect to see short sleeve tailored shirts popping up all over soon after the invention of long sleeve tailored shirts. If this expectation is met, then no patent — everybody did the obvious thing in response to the introduction of tailored shirts.

    However, for this set of hypos, we are assuming that long sleeved tailored shirts existed for considerable time, without anybody applying the glued shirt design in the long sleeve shirt context. it is this period of failure tat would suggest genius and patentability to me.

  75. Dave, are you actually arguing that short sleeves are unique enough to deserve a patent, or are you simply arguing because you are bored?

    I am trying to make you think about what invention is and what evidence of real creativity looks like in a whole new way.

    Right now most laypeople, and even the patent law to some extent, have this idea that gene scientists or rocket scientists or computer engineers do creative things all the time because — by golly — they work with rockets and microchips and genes.

    That is exactly the wrong way to look at it. Economically speaking, creation means giving us something, anything that: (1) people will pay for; and (2) we weren’t going to get from somebody else.

    If this thinking were ever adopted it would be bad news for the gene scientists et al. because they would be scrutinized a lot more to see how quickly their putative inventions would have materialized from an alternative source. on the other hand, it could be good for low tech people who give us economically creative things, but get dissed because their creative canvas is pants or dashboard layout or candybar design or some other intuitively familiar product (where everybody is inclined to slide into hindsight in a way they never would when genes are involved).

    I do hope to write a book about this someday.

  76. Dave, you still haven’t answered my question–if Roman clothes weren’t made with “stitching”, then how were they held together? Please, quench my intellectual thirst with the waters of your awesome knowledge.

  77. Julian,

    I personally believe that having such a bill passed would lessen innovation. It’s just the specific argument you mentioned at 12:53 that I think is flawed.

    There is all sorts of supporting info beyond what you said at 12:53 that I believe would indeed point toward the idea that having more protection would result in less innovation.

    However, in the fourth paragraph you are hypothesizing more innovation per time span from the existing firms due to the presence of knock-offs. Although in my counter-example I only explicitly mentioned what I thought you were stressing (the shortened cycle), it actually doesn’t matter, since for any benefit you can come up with (shortened cycle, more variance between cycles) when knock-offs are allowed, there’s a chance that when knock-offs aren’t allowed, more firms will sprout, firms that currently don’t exist because they can’t compete with the current rules. The aggregate innovation from the new firms that only are competitive with the new rules could surpass the aggregate innovation from the existing firms with the existing rules.

    Smacky,

    The 12:53 argument is that when knockoffs are allowed, certain things happen (my argument was shortened cycle, Julian’s clarification is increased variety) that cause an increase in innovation relative to what would happen when knockoffs aren’t allowed. The portion of my text that you’ve quoted is only saying that if the things that we’re talking about (and it doesn’t matter if it’s shortened cycle or increased variety) don’t happen, there is no reason-within the scope of the argument-to believe a difference in result. In other words if f(X) = Y, then f(X+0) = Y. There’s no need to introduce X’.

  78. Dave, you still haven’t answered my question–if Roman clothes weren’t made with “stitching”, then how were they held together? Please, quench my intellectual thirst with the waters of your awesome knowledge.

    Jennifer, we are just doing hypotheticals here. the facts are whatever we want them to be to demonstrate the principles involved.

    If the Romans had shirts that were constructed very similar to modern short sleeve shirt, then the person entitled to the short sleeve shirt patent would have been an ancient roman.

    However, to the extent that shirt technology moved on, but they forgot to incorporate short sleeve shirts for a few centuries, then it probably would be creative to go in one’s mind back thru the history of haberdashery and to pull up an ancient idea.

    let me do a hypothetical:

    let’s say the ancient romans wore helmets with plumage on them because it made their soldiers more easy to recognize on a chaotic battlefield. Armies kept doing that thru at least WWI and maybe even some armies still do.

    Now in my hypothetical, I patent a football helmet with plumage on top because it make receivers easier to spot downfield. THAT is creative. They have had football for 100 years now. Anybody could have done that, everybody should have done that, but nobody did. That is creativity. It is immaterial that the ancient romans did a similar thing for a similar reason. All that similarity didn’t help 100 years worth of footballers from making the connection I just did.

    Focussing on the degree of physical similarity is just not appropriate. It is not a good indicator of what other people (who aren’t as brainy as me) could or could not come up with.

  79. I thought a haberdasher was a hat maker.

    ?

  80. mediageek,

    That’s a milliner.

  81. Smacky, thank you.

  82. Focussing on the degree of physical similarity is just not appropriate. It is not a good indicator of what other people (who aren’t as brainy as me) could or could not come up with.

    1. pedantic point: should have been –would or would not come up with–. Economically speaking I care about what other inventors *will* give me, not what they *could* give me.

    2. I mean USC has probably put a picture of the trojan with his pluamage right on the freaking helmet itself — how dense does everybody have to be?!?!?!

  83. I’m wearing plaid.

    -fyodor

    It really didn’t occur to me that you wore anything else, Fyodor.

    Mediageek,

    A haberdasher on this side of the pond is any men’s clothier. In Jolly Old, it refers to the sale of ribbons, pins, and other clothing-related odds-and-ends.

  84. Focussing on the degree of physical similarity is just not appropriate. It is not a good indicator of what other people (who aren’t as brainy as me) could or could not come up with.

    1. pedantic point: should have been –would or would not come up with–. Economically speaking I care about what other inventors *will* give me, not what they *could* give me.

    Not to mention the fact that how brainy I am is determined by whether any football team has done this in fact and not versa vice. O well, I am probably talking to myself at this point in an ip thd anyway.

  85. btw, when T. wonderswhat lawyers can possibly do for mankind, this is a good thread to think of. Lawyers, acting whether as judges, advocates or legislative pages, can think hard to think of ways to incentivize productive economic activity. I think my patent patent proposals, if followed, which-they-never-will-be, would help get those scioentists in line more with a Millsean conception of the good.

  86. First, painting a picture was at one time a novel idea that was very patent-worthy. The idea of painting is still recognized as one of the greatest alltime technological advances of mankind.

    Yeah, but that patent woulda expired before the clovis guys even THOUGHT about applying for their flint-knapping patents.

    Could they have patented the idea of patents? Can Bush patent the War on Terrah? The mind boggles.

    Seriously, while I understand that patent lawyers have convinced the PTO that business methods are patentable, and have no doubt that you could get those guys to issue a pattend for a Mona Lewinski, that doesn’t make it right. I’m far more of the ‘steep burden of proof’ line of thought for granting a patent.

  87. . . . that patent woulda expired before the clovis guys even THOUGHT about applying for their flint-knapping patents.

    Ans: Bringing flint into the limitations of the patent claims would be a whole new patent. And that is how it works in reality too, BION (believe it or not).

    Could they have patented the idea of patents?

    I once considered applying for a patent on the idea of applying for patents on new words (neologisms). Now that I have disclosed, I guess I have only a year to get my US provisional on file.

    Can Bush patent the War on Terrah? The mind boggles.

    He ceratinly could if his claim was narrow enuf, say limited to declaring war on false pretences againt Iraq after the oil for food programme, but before the disasterous civil war. If Bush claimed war more generally he would quickly run smack into the Spanish American War as prior art on novelty grounds.

    Seriously, while I understand that patent lawyers have convinced the PTO that business methods are patentable, and have no doubt that you could get those guys to issue a pattend for a Mona Lewinski, that doesn’t make it right.

    Don’t get me wrong. my proposals, on the whole, would have Bailey’s associates spinning in their coffers. I am just suggesting cutting back the propertization in a more, errr, tailored manner.

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