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The War on Copyright Nazism: We Win Some, We Lose Some



Kevin Carson
Center for a Stateless Society
June 12, 2009

Let’s start with the bad news.

First, the fashion industry is resurrecting a rancid little piece of legislation that periodically floats to the top of the bowl: the Design Piracy Prohibition Act. (Note–thanks to Eric Husman and Kathleen Fasanella, a husband and wife team who blog on lean manufacturing at GrimReader and apparel at Fashion Incubator, respectively.) Let’s hope it doesn’t pass this time around. The fashion industry currently operates on an open-source model, with American designers avidly watching the Paris fashion shows so they can knock off the popular designs. In other words, it works on the same model by which your mom used to share recipes with the neighbor lady. This piece of legislation will transform the industry into a proprietary content industry, with fashion designs protected by patents. Its sponsoring organization, the Council of Fashion Designers of America (CFDA), is about to take its place alongside the RIAA and MPAA in the annals of evil. BTW: its head, Diane von Furstenburg, is herself notorious for having knocked off a jacket design by Mercy, a small indie label in Canada. If you think this law will protect the likes of them from the likes of her, ask me about my great real estate deals in the Everglades.

This piece of legislation will kill small apparel makers. Since anyone in the supply chain can be sued for patent infringement, it will be much harder to hire pattern makers, cutters and other contractors, or to find stores that will carry your stuff. Here’s how Kathless Fasanella describes its effect on the small producer:

“…any contractor, pattern maker, sales rep or store owner -in the interests of avoiding law suits or facing criminal prosecution for dealing in pirated goods- is going to require you to prove ownership of your concept before they’ll have anything to do with it. Minimally, you’ll have to hire a lawyer, pay for searches through a design database of all existing design registrations. I cannot even begin to imagine how long this would take. You thought a trademark or logo search was bad? I have no doubt there’s over 10,000 clothing designs out there for every logo. This will cost a fortune. But, you’ll have to do it. No one will take your work otherwise. And because we’ll have to have our own lawyers to check up on you and draw up contracts, the prices we charge you will at least double.”

The law offers so much potential for the big fashion designers to harrass the little guy, you’d (ahem) almost suspect that was its deliberate intent. It’s custom designed, no pun intended, for patent trolls. As Husman describes them, “A patent troll is someone who patents all possible variations on a design theme simply so that they can control market share or set themselves up to be able to threaten potential market entrants with litigation and corner them into lucrative settlements.” Remember when Coke sued a small company for trademark infringement when the other company had actually come up with the name first? In this game, whoever can afford the highest-priced lawyers wins.

Second, Jesse Walker at Reason magazine reports that the RIAA is backing the Performance Rights Act. “This isn’t the small tribute the stations have long paid to songwriters. The money will go instead to the performers and copyright owners…. It would essentially be an extension of a fee already paid by Internet, satellite, and cable radio stations—indeed, the industry’s basic argument for the measure is that it will close a “loophole” that has allowed traditional outlets to escape the payment.” The irony is that the present regime of tribute was imposed on non-traditional outlets back in the 1990s, ostensibly, as a way of closing a preexisting loophole that treated traditional broadcasters unfairly. Ever wonder why ratcheting is such a popular analogy for the growth of state power?

If you’ve got your fill of bad news, maybe these two happy items from Europe will cheer you up:

First, the French courts have just overturned Sarkozy’s “three strikes” law, which would have cut file downloaders off from Internet access after two warnings.

Second (celebrated, as you might expect, by TorrentFreak, ars technica, Slashdot, and Wired), the Pirate Party’s 7% vote in Sweden entitles it to one or maybe even two seats in the European Parliament. In a vivid illustration of the law of unintended consequences, its public profile and popularity experienced an enormous upswing after the recent judicial riot against The Pirate Bay. I’m not an electoralist and I’m sure as hell not going to suggest you go out and v-te, but a single issue party whose primary focus is on monkey-wrenching the IP regime is about the least imaginable of lesser evils. So long as they stick to monkey-wrenching, I’ve certainly got no complaint with them.

Ultimately, production and parasitism are fundamentally at odds — and one will have to end or be ended.

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