If Fashion Copyright Harms So Many, Why Is Congress Pushing For It?

from the regulatory-capture dept

Wed, Sep 1st 2010 8:53am — Mike Masnick

With the latest version of the totally unnecessary and ridiculously dangerous fashion copyright bill likely to become law, despite a near total lack of justification for it, combined with significant evidence of the harm it will do, it might make you ask how the hell does a law like this get passed, and why does someone like Senator Chuck Schumer come up with something quite this badly thought out? Thankfully, law professors Kal Raustiala and Chris Sprigman -- who have been pointing out the problems with Schumer's weird infatuation over fashion copyright for years -- have a basic explanation for how such bad laws get passed. Basically, it's a form of regulatory capture. A very small group of players are likely to benefit at the expense of the overall market and consumers -- but that small group are a lot more focused on the issue than everyone hurt by it:

When a large group favors a policy change, it is expensive to organize that group to seek it. And often each member of a very large group will experience only small individual benefits from the policy -- so no member has the incentive to invest in change. Apathy reigns. Conversely, a small group can usually organize cheaply. And because the group is small, each individual member is likely to realize a much larger benefit from the sought-after change. As a result, the small group is properly motivated. In short, the committed minority can often beat the disorganized majority.

They then note that this is quite common in copyright law:

That scenario explains how a lot of law is made, and intellectual property law is no exception. The problem is most acute with copyright. Producers of copyrighted works -- film studios, record labels, commercial publishing companies -- are few in number and stand to gain significantly from more powerful protections (and therefore have ample incentive to spend money seeking policy change). The result is that Congress hears, loudly and often, from those who favor stronger protection. Congress does not hear nearly as often from those who take the opposite view. Who is that? Well, just about every consumer who has to pay more for a book or a song because stronger property rights prevent competition from low-cost copyists that would otherwise exist. We all pay a little hidden tax every time copyright law expands.

It's even worse than that, actually. In many cases, there are plenty of us willing to speak up about the harm caused by greater protectionism, and the vast amounts of actual evidence and research showing how these policies are inherently going to do more harm than good -- but very few people in Congress listen. Why? Because the industry has done a rather impressive targeted PR job of branding anyone who actually presents evidence and facts about the harm done by copyright law as simply supporting "piracy," which then gets lumped in with all sorts of other awful things. It's really a shame.

Raustiala and Sprigman also point out that this is actually a repeat action. A small group of fashion designers colluded to stop competition during the 1930s, and that only ended when the Supreme Court broke it up for antitrust reasons -- leading those involved to insist that the industry would surely fail without the ability to collude against competition. Of course, the opposite happened. But the new bill effectively brings back the antitrust activity of a few fashion designers -- but this time with Congressional approval. What a sad state of affairs.

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Filed Under: chuck schumer, copyright, fashion industry

35 Comments

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NAMELESS.ONE, 1 Sep 2010 @ 9:11am

simple
a few greedy people with spare cash to blow on lobbying for it want to SCREW everyone else they can.

THAT is nature of all IP
copyrights do not aid creators anymore
patents do not aid innovation
even trademarks are getting stupid on lawsuits
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interval (profile), 1 Sep 2010 @ 9:25am

Doomed to repeat it.
Damn how the culture has such a short memory.
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DH's Love Child (profile), 1 Sep 2010 @ 9:27am

I wonder what will happen...
When nobody is buying designer clothes anymore. I'm envisioning a future full of burlap sacks, god awful jumpsuits and flip-flops. Man I love my country!

/sarc
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Anonymous Coward, 1 Sep 2010 @ 9:27am

To put another business in Jeopardy
"Because congress is a bunch of money grapping whores, Alex?"

"I'll take bribery for $400."
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Anonymous Coward, 1 Sep 2010 @ 9:35am

Re: I wonder what will happen...
ever wonder why characters in a lot star trekish/sci-fi movies are wearing the same generic jump suits?
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Anonymous Coward, 1 Sep 2010 @ 9:38am

Re: I wonder what will happen...
ever wonder why characters in a lot star trekish/sci-fi movies are wearing the same generic jump suits?
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Ron Rezendes (profile), 1 Sep 2010 @ 9:40am

I'll be submitting my burlap sack dress design for a fashion copyright as soon as possible! We don't want any revenue slipping through the sacks!

/sarcasm
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Anonymous Coward, 1 Sep 2010 @ 9:41am

the real winners here? Lawyers! just think of all the money that will be wasted on fashion copyright lawsuits...
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Dark Helmet (profile), 1 Sep 2010 @ 9:48am

Re: Re: I wonder what will happen...
I always thought the people of the future just had huge man-packages they were trying to show off....
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Ryan, 1 Sep 2010 @ 9:49am

Action
Well, the good news is that Congress is DOING SOMETHING, amiright? And as everyone always says, it doesn't matter WHAT our government does as long as they do SOMETHING. Shit, they could be incinerating Jews and lots of people would still say that was better than nothing.

But not only are they doing something, they're actively REGULATING. As everyone knows, anything bad will become good with regulation, and anything good will become great. Overegulation? Regulatory capture? WHAT THE FUCK ARE THESE THINGS?! THERE'S NO SUCH THING!

Because government officials are inherently altruistic, omniscient, infallible people that will regulate a market better than actual, you know, natural market forces. Nevermind that they are subjected to far less transparency and accountability than private businesses and investors, or that they are almost invariably less intelligent and talented, or that they are just as greedy and duplicitous(if not more so), or that their doing their jobs means that society loses wealth as opposed to gaining wealth when private citizens do it.

Because if government doesn't do it, NOBODY WILL DO IT! As everyone knows, the private sector that has been the sole driving force in virtually every advancement ever made is entirely incapable of building roads, providing schooling, making fashionable clothes, giving to charity, providing competition on the internet, or anything really...

The problem isn't our government officials or our CEOs or any player in the system we've created - of course they are going to pursue their best interests! If they don't, they'll lose out to someone else. The problem is idiot voters that for some reason continue to want more regulation and more wealth redistribution and more subsidization and more blah blah blah

By the way, has anyone seen Inception? Pretty sweet movie.
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Bob, 1 Sep 2010 @ 9:50am

why?
I'm not sure copyright will work well in the fashion world because it's hard to tell the difference between a copy and an homage and a remix and fair use.

Still, I can tell you why people are pursuing it. Those who work hard on new, innovative designs watch the mass market types buy one copy, fedex it to China and get complete copies in 30 days. The business rewards big assembly lines filled with sweatshop workers that turn things around immediately. The creatives get fed just enough scraps to keep them cloning the work of each other.

I think the copyright-haters around this place mistake the changes in fashion for a vital market in ideas. It's not.
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Ryan, 1 Sep 2010 @ 9:50am

Re: Action
Shit, almost forgot. Whew...
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Ryan, 1 Sep 2010 @ 9:52am

Re: Re: Action
Incidentally, the techdirt parsing still sucks ass and apparently will never get fixed no matter how many times somebody enters instead of tabbing. Editing is also still a no-show, and when I typed (is this going to show up with spaces? Guess I'll find out...) I guess I should have typed /sarc
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Mike Masnick (profile), 1 Sep 2010 @ 10:04am

Re: why?
Still, I can tell you why people are pursuing it. Those who work hard on new, innovative designs watch the mass market types buy one copy, fedex it to China and get complete copies in 30 days. The business rewards big assembly lines filled with sweatshop workers that turn things around immediately

Except that repeated studies have shown that this HELPS, rather than hurts the original designer. If your design is popular/interesting enough to get copied, people pay more attention to you and are willing to pay higher prices for the "real deal." It acts effectively as advertising.

It's odd that you would ignore all the studies that have discovered that.
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Bapzzy (profile), 1 Sep 2010 @ 10:37am

Re: why?
New, innovative designs that have never been done before, and that people want to wear... do not exist.
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NAMELESS ONE, 1 Sep 2010 @ 10:38am

@5 HAHA
ya cause they still have copyright and patents in that universe ...you ever hear of the replicator?
makes all kinds a neat stuff on a molecular level via patterns and form the show it dont cost anyone a dime.

WHAT a tech that would be.....suddenly no cost for food , auto parts , fuel, WOW ....WHAT A WORLD
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out_of_the_blue, 1 Sep 2010 @ 11:32am

@ Ryan: what you see here is "natural market forces".
Corporations always buy politicians to gain legalized monopolies. That point is basic to understanding yet entirely lacking in your (libertarian?) rant about gov't.
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Free Capitalist (profile), 1 Sep 2010 @ 11:59am

Re: why?
The creatives get fed just enough scraps to keep them cloning the work of each other.

Consider this: when every piece of the oft-recycled crap we see every year suddenly gets a copyright holder, how many sustaining income creators will there be in the industries?

.. and how many lawyers?

Do you really think they'll let independent creators get valuable copyrights on their work? If so, what makes you think the army of lawyers vs. single lawyer win-lose model will work any different for the "little" fashion designers?
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out_of_the_blue, 1 Sep 2010 @ 12:01pm

The fashion industry is neither vital nor productive.
It's simply fools adorning themselves. What drives it is fools who never have to reckon the cost because get high incomes without effort. That being so, your frequent focus on this topic is simply odd, Mike. Where's the concern for our disappearing industrial base and high-tech?

It's not news that cartels seek gov't-granted monopolies. The mob took over Nevada for that purpose. A Rockefeller took over Arkansas and made himself governor. Baseball players got special federal legislation. -- The list is long.

To answer your title question: because listening to focused money "investing" in gov't-granted monopolies is what politicians do.
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Dohn Joe, 1 Sep 2010 @ 12:09pm

This Goes WAY Beyond Just Copyright
This principle goes way beyond just copyright. It is the essential corruption-empowering imbalance inherent in the "representative" democracy system. It is highlighted by the very act of "lobbying" which is to make large gains for yourself or your small group through the small loss enforced by the power held by the "representatives" for that larger group.

It is the very reason a direct-democracy is the only self-sustaining model, you cannot "outsource" your interests unless every one of you keeps close tabs on what goes on...in which case the effort required voids any "efficiencies" gained through representation.
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Danny, 1 Sep 2010 @ 1:00pm

Re: Re: why?
If your design is popular/interesting enough to get copied, people pay more attention to you and are willing to pay higher prices for the "real deal." It acts effectively as advertising.
Which in turn causes competitors to think, "Hey that designer is really popular. We have to think of something new and innovative in order outperform them." And guess what happens? Competition. It keeps someone from getting to the top and resting on their laurels because someone is always trying to take their place at the top meaning they have to constantly do different things to stay ahead of the pack.
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Nina Paley (profile), 1 Sep 2010 @ 1:01pm

the industry has done a rather impressive targeted PR job of branding anyone who actually presents evidence and facts about the harm done by copyright law as simply supporting "piracy," which then gets lumped in with all sorts of other awful things.

Dammit, this artist wants to testify before Congress! Wearing this.
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Danny, 1 Sep 2010 @ 1:05pm

After a while though...
If copyrights infect the fashion industry I give it about 10 years before everything is so tied up in copyrights that the prices of designer fashions will skyrocket so high that the industry will damn near collapse on itself.

But speaking of copyright. Doesn't prior art play a role here? As in you can't copyright something if there is sufficient prior art? If it does then I would imagine its going to take some serious verbal twisting (I'm talking stuff that would make most rappers jealous, well not the current "rappers" but actual rappers from about 15 years ago) to copyright stuff and get around prior art.
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Anonymous Coward, 1 Sep 2010 @ 1:09pm

The text of the bill has a couple of gems
The text of the bill ( http://www.govtrack.us/congress/billtext.xpd?bill=s111-3728 ) includes:
1) a defense for independent creation, as well as
2) an allowance for non-commercial home copies.

While the idea of a fashion copyright is plain stupid, I wonder if this bill means that Mr. Schumer and the co-sponsors could be persuaded to see the value in applying these two gems to the larger world of copyrights and patents.
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Bob, 1 Sep 2010 @ 1:14pm

Re: Re: why?
Except that repeated studies have shown that this HELPS, rather than hurts the original designer

I don't know anything about these repeated studies, but I've spent some time with designers recently and they felt very differently. They said the best they can expect after a big success is get a 10-20% boost in salary from a competitor. They all expressed longing for the recording industry and book industry where a place on the best seller's list was worth a big chunk of change. Often one best selling book was enough to retire to the Hamptons. Macolm Gladwell has his own palazo in Italy and it's not because of the pirated PDF copies of his book.

They told me that the only way they could make a nice nest egg was to set up their own production company, pay cash up front to folks in China, and then build up a line of stores like American Apparel did. But if they don't want to become business owners or can't find enough funding, they're stuck being worker bees.

They're all very upfront about the advantages of borrowing. They enjoy the fun of riffing on each other's designers. But they know that it makes the creative people very replaceable.
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nasch (profile), 1 Sep 2010 @ 3:58pm

Re: Re: Re: why?
I don't know anything about these repeated studies, but I've spent some time with designers recently and they felt very differently.

So you trust designers' feelings over economic studies when it comes to economic effects? Why?

Often one best selling book was enough to retire to the Hamptons.

That's bad. The purpose of copyright is to induce people to create more, not to allow them to retire off one work.

But if they don't want to become business owners or can't find enough funding, they're stuck being worker bees.

I missed the part where that's a problem. I don't want to start a company either, so I'm "stuck" being a worker bee. Does that mean the government should step in and help me to retire at a young age too? I don't follow the reasoning.

They're all very upfront about the advantages of borrowing. They enjoy the fun of riffing on each other's designers. But they know that it makes the creative people very replaceable.

No, it makes the creative people rise to the top. Or rather the creative people who are willing to work hard and keep creating. Sounds like an ideal scenario; what is your problem with it?
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nasch (profile), 1 Sep 2010 @ 4:03pm

Re: After a while though...
Prior art is a term from patent law, not copyright. Anything put down in tangible form is automatically copyrighted. There's no review or approval process where prior art would be considered, only lawsuits after the fact. Which of course would fly fast and thick if fashion copyright is created.
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Anonymous Coward, 1 Sep 2010 @ 4:47pm

Re: why?
So what, the same thing happens with the original that is manufactured in China, because of all the facts you stated, now you want to get only some small group allowed to ship designs to China to be manufactured there?

That is just dumb seriously.
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Anonymous Coward, 1 Sep 2010 @ 4:54pm

Re: Re: Re: why?
"They're all very upfront about the advantages of borrowing. They enjoy the fun of riffing on each other's designers. But they know that it makes the creative people very replaceable."

Yep like every janitor I know of, and they think they are creative LoL

You want people to think they are not easy replaceable? Damn all blue collars should get copyrights for their work too.
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Anonymous Coward, 1 Sep 2010 @ 5:02pm

Re: Re: Re: why?
"They all expressed longing for the recording industry and book industry where a place on the best seller's list was worth a big chunk of change. Often one best selling book was enough to retire to the Hamptons. Macolm Gladwell has his own palazo in Italy and it's not because of the pirated PDF copies of his book."

That is exactly why I don't like copyright or IP law in general, it has been transformed into some form of welfare law that burdens society and reduce productivity leading to stagnation unemployment and ultimately the demise of those industries that are overtaken by competitors and internal forces.

Those laws will burden the little people because they will have to pay more for clothing items that will be caught on that F. idiocy that is copyright.

People will need to create the equivalent of opensource for clothes too if they want to get something to wear.
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Anonymous Coward, 1 Sep 2010 @ 8:45pm

"If Fashion Copyright Harms So Many, Why Is Congress Pushing For It?"

You seem to be of the mindset that the creation of such a sui generis right is generally regarded within the fashion industry as something that would be harmful to the industry as a whole. While the individuals you mention have expressed such opinions, it is noteworthy that there are many who do not agree and do support a limited measure of legal protection. In fact, the proposed law is in many ways remarkable for its very narrow focus, scope and duration.
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Anonymous Coward, 1 Sep 2010 @ 9:08pm

Re: Re: Re: why?
Ah, yes Bob's world (or is it Francis's?), where anecdotal evidence from "designers" trumps real evidence, where IP is just welfare, and where it is a good thing when designers can make "one best selling" design and then do nothing.
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Anonymous Coward, 1 Sep 2010 @ 9:09pm

Re:
Oh look, there you go not actually refuting a single thing. Exciting.
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nasch (profile), 1 Sep 2010 @ 10:26pm

Re:
You seem to be of the mindset that the creation of such a sui generis right is generally regarded within the fashion industry as something that would be harmful to the industry as a whole.

I'm not a mindreader, but Mike didn't say anything about how this is regarded in the fashion industry. He's just talking about its likely actual effect, based on evidence. Sugar tariffs are very highly regarded in the corn farming industry, but that doesn't mean they're a good idea. Similarly, whether fashion designers want this protection is also not evidence for whether it's needed.
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Idobek (profile), 2 Sep 2010 @ 4:28am

Milan, Paris & London
New York can kiss goodbye to its status as one of the world's fashion capitals.
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