What's Wrong With Competition?
from the can-someone-explain dept
A reader named EmJay wrote in with a snide comment about how we wouldn't write about the following story because it's a case where "copyright and patents made sense." I never understand these sorts of comments. We write about all kinds of cases, and if there were one where an intellectual property lawsuit made sense, we'd be thrilled. It would be an example of the system working as planned: encouraging innovation. That would be fantastic. Unfortunately, EmJay's example is no such thing. It's not an example of the system making sense, but of the system being used to slow down innovation and block competition.The story involves a guy who started making plastic turkey wishbones for Thanksgiving/Christmas celebrations, so that families wouldn't have to fight over the actual turkey wishbone in the traditional "breaking" of the wishbone. Of course, maybe it was just my family, but I don't recall ever "fighting" over the wishbone. Anyway, the agency Young & Rubicam, which represents Sears, had asked for a sample for possible inclusion at Sears. A year later, Sears was selling a similar plastic wishbone, made by a different company, so this guy sued and won. From the article, the guy says they won on both patent and copyright infringement claims, but that's not true. The lawsuit was over copyright infringement claims only, and Sears made two good points that should have prevailed, in our opinion. First, you can't copyright something occurring in nature -- such as a wishbone. Second, the wishbones that Sears ordered were in different colors and sizes than the ones supplied by the original company.
And, in fact, that's exactly how competition should work. Sears pushed another manufacturer to innovate, designing different (and, in their opinion, better) wishbones. That's competition and that's how innovation works. In fact, the guy from the original company now admits that his company didn't do any updating of their design for years while fighting this lawsuit, and are just now starting to update the design. In other words, all copyright did was get these companies locked in a silly legal battle, rather than focusing on providing better solutions to customers. It's too bad this guy was afraid to compete in the marketplace.
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Filed Under: competition, copyright, wishbones
Companies: lucky wishbone, sears, young and rubicon
Reader Comments
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yep
People are lazy and don't like to have to work hard, and are afraid of change. They want to make just enough to make a cushy lifestyle and tell the world to go f themselves. Combine these and you make luddites, which are also usually known as Management.
Then, we have the people on the other end, who work hard but aren't recognized for their effort or are in jobs that totally don't match their skills.
Combine the two and you have: companies that can't handle competition and would rather litigate. since they have a luddite lawyer on the corporate salary for cheap. Oh, and what's between all of these? Your run of the mill sheep employee who has no idea.
Repeat ad nauseum.
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Boo Hoo Hoo
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Gee, here I go again
I'd also like to find a manufacturer who will crank out some
almost identical Apple computers and iPhones. We could use Orange logos and some of my "similar to Microsoft" software to operate them.
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Re: Gee, here I go again
openoffice.org (no more MS office)
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Re: Gee, here I go again
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Re: Gee, here I go again
Someone should direct you to a higher education so you can learn reading comprehension skills.
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Competition can improve existing product, but never would have created the product
The idea to create a plastic imitation is an innovative concept that may not have been dreamt up and pushed to market if the guy didn't have the assurance of copyright protection.
True, the idea is easy to copy once it is there, but the original proof of concept is the value creation and it only becomes profitable with IP protection. Without such protection, its back to fighting over the turkey wishbone...
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Re: Competition can improve existing product, but never would have created the product
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Re: Competition can improve existing product, but never would have created the product
That's a huge, and very, very wrong assumption. It becomes valuable if people want it in the market, and you can best deliver it to the market.
It's called competition in the market and it has nothing to do with IP protectionism.
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yes, but
That isn't competition that's just stealing someone else's idea. I don't know if copyright should be involved here, but I personally think it's nice to see the little guy actually winning a legal fight for once.
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Greedy Sears...
However, there is a better question. Lucky Break went to Sears to pitch an idea and a design that Sears had never seen before. Sears thought the idea and design were wonderful, so they took the novel idea and design from Lucky Break and went to someone else. Lucky Break was the innovator. Sears would not have had the idea and design had Lucky Break not gone to them.
Sears has a history of trampling on the rights of others. This trampling on the rights of inventors and designers may be part of the reason Sears is having financial troubles. They keep copying the ideas of other people, so the people that could help Sears with their problem may be avoiding them and going to someone who will treat them with respect instead.
Keep up the good work Sears! If you keep going the way you have been, you will be another footnote in the pages of history.
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Re: Greedy Sears...
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"Kmart is buying Sears, Roebuck & Co. for $11 billion in a deal that will marry two of the nation's oldest retailers that had trouble keeping up with the changes in American culture around them.
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Re: Greedy Sears...
Of course the "idea man" got $1.7 million of Sears' hard earned money and contributed nothing to society other than sitting on his ass.
Let's try this analogy. Let's assume your son earns his allowance by mowing the lawn every week. One week he decides that instead of actually mowing the lawn, he'd think about mowing the lawn instead. And even if he did imagine a fantastic idea on how to mow the lawn, until that idea was actually implimented the lawn would still not be mowed.
So my question is, would you still pay your son the same for thinking about mowing as you did for actually mowing?
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Re: Re: Greedy Sears...
If Sears hadnt stolen the idea, this company would have manufactured those plastic bones.
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Re: Re: Greedy Sears...
In many cases, your ass-sitting scorn is deserved, but not in this one.
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Re: Re: Greedy Sears...
Of course the "idea man" got $1.7 million of Sears' hard earned money and contributed nothing to society other than sitting on his ass.
Let's try this analogy. Let's assume your son earns his allowance by mowing the lawn every week. One week he decides that instead of actually mowing the lawn, he'd think about mowing the lawn instead. And even if he did imagine a fantastic idea on how to mow the lawn, until that idea was actually implimented the lawn would still not be mowed.
So my question is, would you still pay your son the same for thinking about mowing as you did for actually mowing?
The problem with this line of reasoning as applied to this case is that the creator did implement the idea, as he created a usable device that can be sold on the market. All Sears did was take that device, cheaply copy it, and then start selling it as if it were its own.
And don't give us this malarkey about the inventor "contribut[ing] nothing to society other than sitting on his ass." If I have my facts right, the wishbone creator actively presented his creation to Sears in the hopes of striking a business deal. Sears rejected the business proposal but kept the creation, turning the item into a good for sale while giving nothing back to the creator. Sears would have had nothing to sell in this arena but for the contribution of the wishbone creator. It is utter nonsense to say that the creator had no hand in Sears realizing this wishbone-related profit.
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Re: Re: Greedy Sears...
To use your analogy, your son comes to you proposing that he mow your lawn in exchange for an allowance. Your son even mows your lawn in a unique way that enhances the beauty of your lawn as a sample of his product. Your son even proposes that his technique will enhance the value of your house and certainly will enhance your esteem with the neighbors. You then hire someone who asks half as much as your son was asking and teach that someone to mow the lawn in the same way.
So my question is, since your son put all the effort into coming up with the technique of mowing your yard, and even giving you a free sample, would you really go to someone else who was cheaper, but was clueless, and then put the time into alleviating their cluelessness?
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Re: Greedy Sears...
Which would tend to suggest that the 'invisible hand of the Free Market' has already found it's own solution to this problem without needing to resort to copyright?
Anyhow, I'm pretty sure that the concept of "making plastic imitations of naturally occurring items" has been around for quite a long time already. Plastic skeletons for halloween, plastic wishbones for thanksgiving. Where's the innovation?
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Innovation is the process of (successfully) bringing a product to market and either satisfying an existing demand or creating new demand.
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A differently-sized plastic wishbone that comes in several colors is hardly something that occurs in nature. Wishbones do have a characteristic shape and size, but it's plausible that the company that makes plastic wishbones varied the size, shape, and color of its wishbones in a way that would grant it some level of copyright protection. You are way too hasty in your judgment on this point.
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And the ones Sears ordered differed from the ones made by the original company, so there shouldn't be a problem. Unless you're seriously suggesting that one company should have the sole right to make plastic wishbones?
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Really? Was it really different? Do we have examples of these wishbones to make an honest comparison? Or are you just making an assumption based on Mike's characterization of the case, which has no support in the articles he linked?
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Huh huh, do ya huh huh? Please calm down.
From Sears' motion to dismiss, page 14:
The Sears Wishbone is not the same size as the Lucky Break Wishbone, it is actually smaller. The Sears Wishbone is also a different color, and the plastic is of a different texture. The Lucky Break Wishbone comes to a sharper and larger point than that of the Sears Wishbone. The angle of the diverging branches of the bone is smaller than the Lucky Break Wishbone, and the flat segment connecting the branches of the bone is noticeably smaller. The branches of the Lucky Break Wishbone are also longer. The ends of the branches differ in shape and in thickness, and the Lucky Break Wishbone's branches include grooves, indentations and seams not present in the Sears Wishbone, and visa versa.
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From Sears' motion to dismiss, page 14:
What a surprise: the Sears advocate is saying that they two are not similar! Gosh, I would have never expected the party's lawyer to opine on the facts in ways that favor his client.
Sorry, but I'm more willing to believe the jury on this one. After all, the people on that jury were in the best position to determine whether the two wishbones were substantially similar or not: they saw the two items at trial, and they are the type of people that would actually buy this stuff. Unless you can show me the actual wishbones or representations thereof, the self-serving testimony of Sears's attorney holds no water.
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According to you we should assume that the wishbones were identical and the same used by the 'inventor'. Yet in the article it does mention difference in shape, size and colors. I'm sure the shortage of turkeys this year points to only one possible conclusion to you, yet others can realize that a mold of a wishbone can be had quite easily. It is the expression that is covered by copyright, not the concept or idea. By that test, unless they copied the mold directly, Sears had every right to mold something from nature and reproduce it.
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That's not the test for infringement. The test for infringement is substantial similarity. If the two wishbones are substantially similar in look and feel, and the alleged infringer had access to the copyrighted wishbone, then the defendant is liable for copyright infringement. That's the test, and it's the only test.
The article does not state for a fact that there are differences between the wishbones. The article cites the lawyer of Sears for that information, which is colored to slant the facts in his client's favor. I prefer to listen to someone who does not have an axe to grind.
According to me, we should listen to the jury on this issue, as they were the ones tasked with finding the facts, and they had access to all of the evidence available. So, unless you have some evidence that shows that the jury was clearly in error, I suggest respecting the jury verdict.
Sears certainly does have every right to take something from nature and attempt to reproduce it. What they cannot do is make wholesale copies of another's artistic expression of that something from nature and claim that they are free from liability.
By the way, you have no business lecturing me on the basics of the law of copyright. I can assure you that I've been studying it for far longer and in much greater detail than you.
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According to the court records, avian experts testified that the copyrighted plastic wishbones differed from actual wishbones in several significant ways (I bow to the greater knowledge of avian experts - my level of knowledge is bird/not bird, and even then I am unsure of whether I am correct). Apparently the non-real wishbones of Sears were essentially identical to those provided by the guy who originally created them. So, apparently there was a problem.
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How do you update a plastic wishbone?
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Improve the ability to hold the wish bone by adding ribs at the tips.
Add electronics that light up and make nose when some one wins.
Make a wishbone that can be reassembled using magnets.
Shall I stop?
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PSSST did you hear
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This is not a case of some unrelated party wanting to compete in the wishbone-making market. It is a case about a company that approached the manufacturer, asked for and received samples, asked for and received a quote for supplying the product, contacted the manufacturer confirming the quote, asked for some changes to be made and the quote updated, received the updated quote, contacted the manufacturer that all was in order and accepted the quote, repudiated the acceptance of the quote, and then sent the whole kit and kaboodle of samples and packaging to China so that the product could be bought more cheaply.
The manufacturer lost the sale. Sears turned a tidy profit.
As luck would have it, the manufacturer was not stupid. He secured a copyright on the article (which is totally proper and valid), as well as on the packaging that accompanied the samples he originally provided. Of course, Sears was deaf, blind and dumb, it likely never occuring to its execs and buyers that stringing a guy along was not a smart business move.
Sorry, but David did deserve to win under these circumstances, and it was through copyright law that he ultimately prevailed. Mr. Masnick's view on the validity of the copyrights notwithstanding, a federal district court judge came to precisely the opposite conclusion. Why? Likely because he had real evidence in hand, heard extensive arguments by both sides concerning the copyright issues, did independent research to determine how the issues should be resolved, and then informed the parties that the plaintiff was right and the defendant was wrong. Of course, the possibility cannot be discounted that the judge would have held differently had techdirt filed an amicus brief.
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Sorry, but "totally proper and valid" is still questionable, regardless of the jury's decision.
a federal district court judge came to precisely the opposite conclusion.
Actually, that isn't true. The judge declined to make a decision on the matter due to the limitations of the motion to dismiss. From the hearing:
And I'm going to decline to do that on a motion for challenging -- a 12(b)(6) motion to dismiss. I have to accept everything as true in the pleadings, and my looking at a picture doesn't get you there. So to the extent you are asking me to dismiss the copyright claim based on 12(b)(6), I decline to do so.
...
And the reason is that I think it requires me to assess the similarities between the Lucky Break wishbone, which is in a picture -- I don't even have the benefit of looking at the nice exhibit that you filed and I peeked at, but then
decided I couldn't consider -- and a turkey wishbone that would occur in nature. I think that requires me to analyze the two, and I can't do that on the motion to dismiss under 12(b)(6).
A jury decided that Sears infringed the thin copyright of Lucky Break, not the judge.
Of course, the possibility cannot be discounted that the judge would have held differently had techdirt filed an amicus brief.
Of course, the possibility cannot be discounted that the jury was wrong. That's why there are appeals courts.
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Please understand that arguments contained in litigation briefs are just that...arguments. It is evidence presented in court that is relevant. Moreover, it is not at all uncommon for a slew of orders/decisions to be issued from the bench long before a trial on the merits is even conducted. In this particular case about two years of pre-trial motions and orders winnowed the case down to just the two copyright issues, and it was on these issues, based upon the evidence presented, that the jury held in favor of the plaintiff. If the evidence, as you seem to believe, is so compelling that no reasonable jury could have arrived at the decision it did, the judge would most certainly have overruled the verdict when the defendant filed its motion for JMOL. The fact the judge denied the motion and entered a final decision runs counter to what you and Mr. Masnick seem to feel should have been the outcome. All I can say is that the judge and jury sat there in court, heard all the evidence, and then rendered a verdict based upon the evidence. If you had attended the trial and could expound on the evidentiary presentation, then I would certainly be inclined to cut you some slack. However, since I have no reason to believe either of you were in attendance, I must admit I find it perplexing that the two of you can make your assertions without the benefit of what was before the judge and jury.
Will the case be appealed? Probably, since Sears has the resources to do so and in the past has shown not the slightest hesitancy to pursue appeals (even in cases where its likelihood of success was virtually nil). Will the case be overturned? Probably not, but then again stranger things have happened in other litigation.
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Nick Nack Patty Wack.....
Bonehead defense.....big boner to begin with....
I bet both parties WISH they wouldn't have messed around with this one....
You can't own copy rights on things that occur in nature --otherwise, That TREE is my design !!!!
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Thanks for posting this. But......
Thanks for posting this and starting a discussion. I did not had any malicious intentions when I asked techdirt to post this. So your "snide" adjective was unnecessary. I am a regular reader of this website and have often posted (mostly anonymously). I cannot comprehend why you used that adjective anyways.
Coming to the topic. Your points against granting copyright:
1. It is available in nature: Really? Plastic wishbone?
2. Second, the wishbones that Sears ordered were in different colors and sizes than the ones supplied by the original company: So? It is still the copy of original product!
I have never had a turkey dinner in my life. So I agree with the absurdity of the product. But after this company pitched their product to Sears, Sears did order them from another company. This shows that the product is NOT obvious (if it was then why didn't created them before and made profit out of it as Sears did), and useful (for "some" people. Not for you and me. But somebody).
In previous discussions you have often mentioned that you are not against patents and copyrights, but oppose the current system. I am still wondering if any patent or copyright seems right to you!
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Re: Thanks for posting this. But......
This question has been answered numerous times as "No".
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Re: Thanks for posting this. But......
Hi EmJay. You didn't "ask" us to post it. You submitted it with the following message: "I am sure you wouldnt publish this because it is a patent success story. Anyways."
That certainly reads pretty snide to me. You assumed we wouldn't post it, and tried to rub that in our face.
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Re: Re: Thanks for posting this. But......
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Confused
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Re: Confused
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