The Patent Office Strikes Back
Ross Douthat argues that the fact fans love the mythos of the Star Wars universe even though they’re not fans of the prequel trilogy means we should have “an intellectual-property regime that lets other artists have a go at the Star Wars mythos sooner rather than later, and unencumbered by the heavy corporate hand of Lucasfilm.”
While I’m not a fan of copyrights that extend for decades past a creator’s life, why shouldn’t George Lucas be free to screw up the Star Wars franchise if he so desires? And to prevent others from mucking around with his work? And to charge as much as he wants to those who wish to capitalize on his creations?
Fans love the mythos of the Star Wars universe because Lucas created it. It’s his mythos, not ours.
Because he sucks nowadays. If someone can do cool stuff with something that is totally part of our cultural heritage, they ought to be allowed. At the moment, he’s doing little more than stopping progress in the useful arts (echo of Constitution fully intended)
So I disagree with you: it’s not his mythos; it’s ours.
As a member of the Patent Bar, I feel obligated to point out that is is the Copyright Office, not the Patent and Trademark Office, that handles copyright matters.
the Copyright Office, not the Patent and Trademark Office, that handles copyright matters.
True that. It didn’t make for as good a headline, although I’m not sure the one I came up with was all that great, anyway.
Ultimately, copyrights are designed to protect a product and the good name it generates in the marketplace. While it’s certainly true that other artists could do a vastly better job creating movies than has Lucas in his last three attempts, there are a lot MORE artists who would screw up the franchise even worse. The policy behind copyright prevents these “free-riders” from damaging the name of the franchise against the will of its owner.
That’s the salient distinction – Lucas is free to fly his own plane into the ground, but if someone else does it without his consent, that’s wrong. And when someone attempts to derive a profit from it, then it’s not “our” mythos at all, but rather it belongs to party who is selling the product.
Uhhmmm, no. It is designed to artificially create a monopoly and to thereby grant the copyright holder (patent holder, etc.) economic profits for a period of time.
why shouldn’t George Lucas be free to screw up the Star Wars franchise if he so desires?
The better question is .. why should he, and why should the government protect him? As Mr. Verdon correctly points out, beyond the limited utility of fostering the useful arts and sciences, current copyright laws only inhibit creative endeavors and provide nothing other then a government established monopoly for the copyright holder. Lucas can continue to do whatever he wants with the franchise, others should be able to as well after a reasonable amount of time.
I don’t disagree that it amounts to a monopoly but it’s an incredibly limited one. People are free to compete with Lucas in his genre, just not using Lucas’ own creations.
It strikes me as absurd that he should have to compete against others in putting out Star Wars merchandise, movies, and the like. Ditto Marvel and Spiderman or DC and Superman and Batman. Those things exist because of people’s investment of time and creative energy and it seems perfectly reasonable that they should retain the rights to them.
Further, it creates incredible brand confusion if others can put out, say, a product called “Coca-Cola” (which, granted, is a trademark issue rather than a copyright one) and that the Coca-Cola company would continually have to fight against that clutter.
If dozens of publishers were putting out “Superman” comic books or “Spiderman” movies, wouldn’t consumers legitimately get confused? And, after seeing several crappy rip-offs, just give up, thus harming the original owners?
No. Not even. Nobody loves Star Wars because Lucas created it. They love it because the original was an amazing special effects movie created on a shoestring budget and it manages to blend a bunch of mythological tropes in a way that is simple and good hearted and fun (even if they wouldn’t put it in those terms).
Intellectual Property rights are just a bad idea in general. The idea that ideas themselves can be owned like property creates a number of ridiculous results. No idea is ever truly new in the sense of not building on, or being in some way a rearrangement, of ideas that come before. How can Lucas own star wars which was itself merely a retelling of Akira’s Hidden Fortress? And the Hidden Fortress wasn’t really new either. You’d have to go back at least to the ancient greeks and probably further to find a story with no direct antecedents.
What’s more IP is the means by which we subject art, science, and philosophy to the yoke of business. And that yoke retards all three. It’s no coincidence that the modern art world is vastly more notable for its commercial attributes than any real depth or meaning. The concept that a genome can be held as a person’s property not to be infringed upon (except of course by nature who really invented it) is absurd!
Only property should be property. Ideas are something else altogether.
There’s an easy way around that:
George Lucas’s Empire Strikes Back
Marvel Comic’s Spiderman 2
and so on.
The exact same way that any number of companies can use the Robin Hood myth, or the Dracula myth, or make a fictional movie about Queen Elizabeth.
To put it another way, by your reasoning why should the copyright expire after death? It is still the “property” of Lucas’ estate isn’t it?
What’s more IP is the means by which we subject art, science, and philosophy to the yoke of business. And that yoke retards all three.
But much of that, especially art, is created for economic reasons. Maybe that’s not good in some respects but it’s reality. Having someone steal the idea you came up with and use it against your economic interests seems just wrong to me.
I’m not sure how philosophy or even pure science are hindered by IP law. Certainly, both build upon other’s work and acknowledgment of that it is typically all that’s expected.
While limited it has been extremely lucrative. And why does the monopoly extend to toys? After all making toys from Star Wars characters has little or no infringement on the actual story. Nope, it is about $ and in this case lots of it.
But when you sell something you usually give up the rights to that item. And how are consumer’s made worse off by having more choices? As for the confusion, I’m not that worried after all even comic books list the writers, artists, etc. Heck, not all Batman comic books are written by Bob Kane and Bill Finger. In fact, one of the best Batman comic books I’ve seen is written by Frank Miller!
You can only steal it once it is put on the market. Normally we call it competition. You make a more comfortable chair you “steal” your competitor’s business. Back in the old days, he’d either take your design and retain he current market share or come up with a better design. Nowadays you patent it, etc. and prevent further improvements based on your design. Waste money and resources on going to court, and over all, we have lowered economic output. That is what happens with monopolies. All of them.
Once again, I’m agreeing with Tlaloc…I think another snowball fight just browk out in Hell.
The government grants patents and copyrights to allow people to profit from their creations, because profit is what motivates a capitalist market. However, while the benefit to the creator increases over time, the benefit to society as a whole decreases over time. At some point the government-granted monopoly is stifling more innovation than it is encouraging, at which point the patent/copyright becomes detrimental to society. That is why we do grant them, and why they do expire after a certain time.
Now maybe Lucas is still being creative with star wars, I heard rumor that he’s working on another set of movies, but how many other artistic monopolies from the 1970s are still benefiting society?
I’ll say it again, we don’t make laws based on 1% of the possible scenarios. Maybe current copyright limits aren’t ideal for Star Wars, but increasing that limit would be less ideal for many other creations.
And should it be? Should art be just a money making scheme? (I agree with you that it is that way now, but that doesn’t mean it can’t be changed)
That’s because you are hung up on th idea of your ideas being *yours* as if they were somehow physical property that is physically located at only one point in space and can thus only be owned/used by one person.
I deal with this all the time because I work for an engineering company (we make semiconductors) and most of my coworkers are engineers. Meanwhile I’m a scientist by training. Their focus is on the control of information for personal (in this case refering to the corporation as a whole) gain. That runs contrary to my training which is that knowledge is shared for peer review and evalutation so that the sum total knowledge of all is increased.
There’s just no reason to put human knowledge into the hands of jealous bureaucrats and bean counters. They’ve done nothing to earn having that control over mankind as a whole.
Gods, imagine the horror if algebra had been copyrighted by Al-Jabr. Or if Dr. Johnson had copyrighted the english language with his dictionary.
As ridiculous as that seems is it really any different than what we allow to happen routinely today? Algorithms are copyrighted. Genomes are copyrighted.
I told you- it gets easier each time. Soon all your thoughts are belong to me.
Michael,
Innovation and new ideas have been coming about ever since the dawn of time and well before the invention of intellectual property law. This idea that without out intellectual property laws no innovation would take place is the conventional wisdom, but there has been some recent research suggesting it is not only not true, but actually harmfull to the innovation process.
Take Tlaloc’s reference to algorithms. He is right they are being patented/protected these days. Suppose you are a young scientist/mathematician and you find a way to take algorithm A1 and make it work better. There’d be a long drawn out process as to whether or not you could do this since you’d be working off of somebody else’s property.
In short, the idea of making ideas property is a dubious proposition for those who argue that they favor economic growth. Monopolies restrict output and raise prices, factor in the rent seeking, rent protecting and the deadweight loss of monopolies and it is pretty hard to make a case for monopoly and less competition.
Tlaloc,
Heh, nice work on that last line.
Monopoly can only be defined in terms of market share. When you talk about creating a monopoly by allowing artists to keep their copyrighted materials from being plagairized by others, you are only correct insofar as you define the market as “the star wars universe.” In reality, if you look to the next most likely substitute, say, other works of science fiction, George Lucas commands only a small share of market power, and is in fact only one competitor among many in the free market of science fiction.
So, raising the spectre of monopoly when talking about copyright for artistic works is pretty disingenuous. Steve would have us believe that my band should be able to record and sell albums of copyrighted works without paying royalties to the writers. While musicians would no doubt be flattered by the attention their works were getting, if they remained unattributed and unpaid, they would also be rightfully upset that they had been stolen from. Worse, there is the potential that others will, without consent, destroy the viability of the artistic work in the marketplace by putting out sham copies that barely imitate the real thing. This is not competition, it is intellectual property theft.
There’s a fine line between stimulating innovation and encouraging plaigarism. I don’t claim that the current intellectual property regime is perfect, but James has made some good points (Spiderman) about the policy behind the laws as they exist. They’re not there because the evil big government wants to stifle competition and create state-mandated monopolies (and the claim that they are misunderstands the very concept of monopoly); rather, they exist to protect legitimate artists and inventors from having their valuable intellectual property stolen by the less innovative and hardworking.
Algothrims cannot be patented. What can be patented is the implementation of that algorithm. If someone makes a new process that is based on underlying algorthims then they it’s that person’s process. Heck, if they take an existing process and modifies it in some significant new way, it’s not considered protected by the patent. Derivative works are issue of copyright, not an issue of patent.
Ideas cannot be copyrighted, only the unique expression of those ideas can be. If you wanted to make, say, Eragon (basically Star Wars without the space part, plus dragons) you can because the ideas underlying Star Wars are free for everyone to use. What you can’t do is take Lucas’ way of expressing those ideas (his characters, his unique setting) and then use them.
Copyright is a system to give people an incentive to create artistic expression. Part of it is to give people a limited monopoly to economically benefit from those works, but part of it is to make sure people can’t take copyrightable material and unjustly enrich themselves with it. If we let people rip off Star Wars then they would be taking expressions that Lucas spent effort creating and popularizing and getting the benefit of that effort without having to contribute to that effort. Why should we give others the right to enrich themselves off of the efforts of Lucas?
People are free to write about farmboys who turn out to be heroic saviors. That story has probably been around as long as there have been farmboys. What you can’t do is take Luke Skywalker, Lucas’ personally created expression of the farmboy hero, and then unilaterally decide to use Luke Skywalker as part of your ‘new’ artistic expression.
Billy,
Monopoly is not defined by market share. There is only one and only one source of Star Wars related material. Hence, in terms of Star Wars related material it is a monopoly.
That there are close subsitutes means that there can be monopolistic competition–i.e. competition between monopolists. While this can mitigate the downsides to monopoly it does not negate them.
Sort of. And in general, yes you are right, you can’t copyright a mathematical concept, however there is this from the website bitlaw.com
Billy’s invocation of muscians is interesting in that it doesn’t really support his claims. Most musicians get screwed out of their “property rights” to their songs. They are often owned by the recording companies that sign the musicians. And yet, we still have new songs all the time. The idea that without any intellectual property laws we’d have no new creative works is just not believable.
Michelle Boldrin and David K. Levine have quite a few examples of industries where intellecutal property laws didn’t apply and yet there was an almost frantic pace to innovation. Why? Since there was no intellectual property laws preventing these “thefts” new ideas spread rapidly forcing competitive firms to continually look for new innovations to stay on the cutting edge. The typical pattern is that as the industry ages and lobbyists get busy in Washington eventually the intellectual property right laws are changed and the pace of innovation slows.
That’s just not true. See here for one example (the GIF algorithm):
http://en.wikipedia.org/wiki/GIF#Unisys_and_LZW_patent_enforcement
You’re 90% wrong. A superficial understanding would be that in terms of merely Star Wars material, you’d be correct. However, “monopoly,” particularly as used in a legal context, is defined as I described by economists and scholars who actually know what they’re talking about. So, if you define the market as Star Wars material, Lucas would indeed have a state-created monopoly. However, if Lucas were to charge $1,000,000 per viewing, would audiences have an alternative to satiate the same market demand? Indeed they would and do, as evidenced by the plethora of sci fi/fantasy works available today. As such, the “market” can hardly be described as merely those works in the star wars universe, but rather must include all those works that consumers will substitute if Lucas tries to charge supercompetitive prices. Thus, if you define the market in terms of these works, Lucas has nothing close to a monopoly, merely a protected interest in the intellectual property material he has produced, and is merely one more competitor (albeit an efficient one) in the marketplace of science fiction.
You don’t even have to take my word for it. See, e.g., Hebert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application Boston: Little, Brown and Co., 1978-1999; 2nd ed., with Phillip Areeda. New York: Aspen Law & Business, 2000- ; Supplement, 2005; 3rd ed., vols 1, 1A, 1B, 2006.
(I think the discussion of monopoly is in the first few chapters; Hovenkamp does an excellent job of sourcing his material between legal and economic scholarship).
Very well said.
I think you’re the only one who is espousing this claim. No one else has said that there would be no new creative works without Copyright. It’s about credit and incentives, and there is a reasonable debate as to the best method to incetivize innovation. My sense of libertarianism does not extend so far as to advocate the wholesale co-option of an inventor/artist’s product by a bad actor who has the means to mass produce shoddy knockoffs, which is the net effect of eliminating intellectual property laws. For a single example of why such laws must exist, google “Todd Goldman.”
While unquestionably innovators would continue to innovate without protection, it is a fair question to ask what they’re innovations are worth. There is a balance to be struck between the polar extremes of anarchy and permanently extendable Disney-style copyrights over everything. Fortunately, the pendulum seems to be swinging away from over-protectionism, but there is a limit on both sides that must be maintained.
Well… no.
I’m not sure how to put it simpler than that but as with your algorithm claim above you are simply wrong.
Here’s an alternate example: is Microsoft a monopolistic venture if it grabs up the entire market share of PC OS and uses it’s leverage to prevent others from competing?
Yes.
And yet by your logic “no” because those PC users can always switch to Macs.
The availability of something else that is sort of close to the same thing (i.e. Babylon 5 as a substitute for Star wars) doesn’t mean there isn’t a monopoly. A monopoly on flat head screws is still a monopoly on flathead screws, even if philips screws exist.
So, no, viewers do NOT have an alternate source to satiate that demand because that demand is not for “generic scifi” but for “Star Wars.”
True, things like the Mona Lisa and the Sistine Chapel could never have existed before IP laws because they would get crowded out of the market by “bad actor who has the means to mass produce shoddy knockoffs.”
And that’s to say nothing of the works of Beethoven, Brahms, Shakespeare, Goethe, and so on.
Wait…
Billy,
No you are wrong, market share does not define monopoly save in the flawed world of lawyers. There is only one definition of monopoly and that is when there is a single firm supplying a given good. You seem confused by what is a monopolist and a firm that has what is considered “too much” market power.
This is idiotic. Monopolists do not charge whatever price they want. Anybody familiar with the definition of monopoly would know this. Your excuse for this kind of ignorance is what?
Oh, and don’t take my word for any of this, see The Theory of Industrial Organization by Jean Tirole, or Microeconomic Theory by Walter Nicholson.
Well, in theory yeah, it sounds good, but the empirical evidence paints a different picture. Firms use their patents in strategic ways to limit competition, drive up prices, reduce consumer welfare, and stifle innovation by competitors (link, link, link).
Credit is a clever bit of misdirection, nobody is saying Lucas shouldn’t get credit. As for incentive, it is far from clear that patents, copyrights, etc. work to increase output. In fact, there are plenty of reasons to think it works in the opposite direction. Generally monopolists are notorious for being poor innovators.
Same goes for plagarism. Taking somebody else’s work and putting my name on it would, in my veiw, constitute fraud. I’d be decieving the buyers. I see little reason why a person would need added protection against this kind of thing.
As for moving away from over-protection, that is simply not the case. More and more things are falling under the umbrella of intellectual property protection all the time. For example, it was claimed that algorithms were not patentable. They sure are if they have a real world application. Basically this is a form of rent seeking and generally rent (unearned income) seeking is not a good thing unless it can be shown that the welfare enhancing benefits exceed the welfare losses one example is if grant market power also improves quality.
Yes, there should be a way for innovators to profit from their innovations. What I dispute is that they should be granted unearned income (rents) for their innovations.
And actually, I can think of cases where this could happen. Say a sneak preview showing in a theater with 200 seats. Such seats would go for, on average, $500. Considering that some people pay more than this for various bands (e.g. the recent Police tour), it isn’t that outrageous.
Now if it $1,000,000 per ticket, again, monopolists don’t maximize price, but profits. In this case, for a general release, the ticket price would likely be much, much lower.
Oh and here is a link to the theoretical paper by Bessen and Maskin on sequential innovation.
It was an example. I do understand the concept of profit maximization; I was trying to, as simply as possible, explain the concept of product market definition.
You’re running into a basic concept problem here, and that is the definition of “a single good.” I won’t argue this point, as the level of invective here is already unnecessarily high, but I think, as we are discussing Intellectual Property law, that the “flawed world of lawyers” might have some relevance to the discussion.
The real issue with these kinds of distinctions is to define that which constitutes a viable substitute. Is a Mac a viable substitute for a PC? I don’t think so, but you could make arguments on both sides of this issue.
Similarly, it is a valid point to say that Babylon 5 is no substitute for Star Wars. However, does the uniqueness of each parcel of intellectual property render every creation a market in and of itself? I and others would say no. JohnG’s point about farmboys and Luke Skywalker is really articulate on this issue; after all, Lucas was really just repackaging Joseph Campbell. The thematic elements are all there for the taking; Lucas isn’t cornering the market on anything at all. What intellectual property laws do is give him the rights to manage his creations for a limited period of time.
Art should be treated in a fundamentally different manner than other forms of IP, in my opinion, and this is a good illustration of why. The second we ascribe the “monopoly” label any time anyone writes/records/films something, fringe elements come out of the woodwork and decry legitimate protections as unnecessary protectionism.
Since you brought up Star Wars: Postal Wars
No, I’m not. Not at all. You see it is really pretty simple really.
1. Lucas has a monopoly on something he thought up.
2. There are substitutes, but that doesn’t negate the fact that Lucas as a monopoly on his product.
3. The presence of substitute monopolies means that it is monopolistic competition, which while better than pure monopoly still results in rents, unearned income.
Your issue with market share is not really relevant as that is not how monopoly is defined. To add confusion to this set of concepts, often when discussion the issue of market power, price setting power, etc. in legal settings the term “monopoly power” is used. However, I submit that this term is meant to convey price setting power and with it the power to extract surplus value from consumers (e.g. consumer surplus).
To be perfectly clear here, being a monopolist, is not generally a problem, legally, but raising one’s price to take advantage of one’s “monopoly power” is usually what gets the DoJ’s panties in a knot.
I think I’ve quite adequately demonstrated my grasp of the “jargon” to a satisfactory level. Your insinuations to the contrary are risible.
I think a good case can be made that granting special privleges that result in unearned income is unnecessary protectionism.
Isn’t that a bit like saying Apple has a monopoly on Macintosh computers? A monopoly is defined by your market, not by your product. The market for Star Wars is the sci-fi literature market, over which it has no monopoly.
I haven’t read the patent, but I would be willing to bet that Unisys patented the implementation of that algorithm in a binary-based computational device. You are free to build and market a purely mechanical implementation of the GIF algorith.