The Knockoff Economy (47 page)

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We can’t leave out the notorious McNuggetini, made with vanilla vodka and a McDonald’s chocolate milkshake, with the glass rim coated in barbecue sauce and a Chicken McNugget garnish slapped on. For an instructional video (watched nearly 150,000 times), see
www.youtube.com/watch?v=iX8Hzxu7C1g
. We draw the line at the Ham Daiquiri, however.

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Interestingly, Eben Freeman, despite his dissatisfaction with the limited IP protection available for cocktails, has a video in which he demonstrates the Hard Shake, as taught to him by a disciple of Ueda.
http://videos.nymag.com/video/Eben-Freemans-Hard-Shake#c=XR4JYD0V7W83M87K&t=Eben%20Freeman%27s%20Hard%20Shake
.

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The joke in question was about the security wall proposed between the United States and Mexico, meant to keep out illegal immigrants. The punch line: “well, who’s gonna build that wall?” We say more about this joke later in the chapter.

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Diller also reworked her jokes frequently. One index card in the file featured a joke about the law. “What has 18 legs, 9 heads, and 4 boobs?” she wrote. Punch line: “The Supreme Court.” She then crossed out the original joke and rewrote it in pen below, reflecting changes on the Court. “What has 18 legs, 3 boobs, and one black asshole?”

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Of course, there remain a number of comedians who specialize in the older one-liner style. But even with modern purveyors of the one-liner, there is an emphasis on persona and the performative elements that establish persona, such as Steven Wright’s monotonic delivery of nuggets of first-person surrealism. In short, contemporary stand-up tends to be pretty clearly stamped with the persona (whether real or invented) of the comedian actually on stage.

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Indeed, whereas once the most trusted newsman in America was Walter Cronkite, today it may well be a former stand-up comedian: Jon Stewart of the
Daily Show.

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Robin Williams, who has faced long-standing and repeated allegations of joke stealing, described the experience in an interview in
Playboy
magazine in 1992: “Yeah, I hung out in clubs eight hours a night, improvising with people, playing with them, doing routines. And I heard some lines once in a while and I used some lines on talk shows accidentally. That’s what got me that reputation and that’s why I’m fucking fed up with it…. To say that I go out and look for people’s material is bullshit and fucked. And I’m tired of taking the rap for it…. I avoid anything to do with clubs. People keep saying, “Why don’t you do The Comedy Store?” I don’t want to go back and get that rap again from anybody…. I got tired of [other comics] giving me looks, like, what the fuck are you doing here?”

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Just ask the music industry—the topic of this book’s Epilogue.

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Then-president Teddy Roosevelt, famously obsessed with manliness, saw football as a game that instilled, he said in a 1907 speech, “the courage that dares as well as the courage that endures.” But TR didn’t hesitate to summon Yale coach and football pioneer Walter Camp to the White House in 1905 to discuss cleaning up the game—especially since TR’s son, TR Jr. was now a freshman on the Harvard squad.

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It’s true that passing causes more turnovers (in the form of interceptions) than does running (in the form of fumbles). And yet the football statistic with the highest correlation to wins is the number of yards gained per passing attempt, which is a measure of the efficiency of a team’s passing offense. Even with the relatively higher rate of turnovers that a pass-based offense tends to create, a good passing game is still more important to winning than the run. And a team built to pass while keeping interceptions relatively low has, in general, the best chance of winning football games. See Advanced NFL Stats, “What Makes Teams Win?”
www.advancednflstats.com/2007/07/what-makes-teams-win-part-1.html
.

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It’s possible that if a team were to apply for and receive a copyright or patent on a particular play or formation, the National Football League would react either by banning the use of IP to protect the innovation, or by mandating that any patent or copyright be licensed to rival teams. Such a move by the NFL might, however, raise antitrust issues. The Supreme Court recently ruled, in the
American Needle v. NFL
case, that the NFL’s teams are economic competitors, and that they and the league itself are not one entity. As a result, NFL rules that unnecessarily restrict competition—and a ban on obtaining IP rights might be perceived as such—would be subject to federal antitrust review.

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The irony is that Edison did not really invent the light bulb. As Mark Lemley of Stanford Law School has noted, Edison simply found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. This kind of innovation—incremental, tweaking—is precisely our topic in this section.

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Davis himself may have tweaked an earlier version of the run-and-shoot pioneered by a high school coach from Middletown, Ohio, named Glenn “Tiger” Ellison. Davis’s version of the run-and-shoot was more pass oriented.

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Other MathWorks contests have asked contestants to design a formula to map the surface of Mars, find the most efficient way to fold a complex protein molecule, and tackle a difficult positional problem in the classic Mastermind game.

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John Philip Sousa was among those who testified in Congress in support of this expansion of copyright. Sousa, however, was deeply ambivalent about the advent of mechanically reproduced music, and in 1906 he published a vitriolic essay, “The Menace of Mechanical Music,” attacking the new technologies. Sousa believed deeply in the importance of music as a democratic activity:

There are more pianos, violins, guitars, mandolins, and banjos among the working classes of America than in all the rest of the world, and the presence of these instruments in the homes has given employment to enormous numbers of teachers who have patiently taught the children and inculcated a love for music throughout the various communities.

Right here is the menace of machine-made music!… [I]nstruments… are no longer being purchased as formerly, and all because the automatic music devices are usurping their places. And what is the result? The child becomes indifferent to practice, for when music can be heard in the homes without the labor of study and close application, and without the slow process of acquiring a technic,… the tide of amateurism cannot but recede, until there will be left only the mechanical device and the professional executants. (John Philip Sousa, “The Menace of Mechanical Music,”
Appleton’s Magazine
8 [1906]: 278)

Sousa’s worries have, of course, come to pass—far fewer Americans learn to play musical instruments than during Sousa’s time, and amateur musicianship long ago receded from American life.

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The fee was initially set at $0.02 per copy, or about 48 cents in 2011 dollars. It is now just over $0.09 per copy for most songs. In other words, the cost of covering a song has been slashed by about 85% since the 1909 act was passed.

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Which may be a good thing—though in practice there is a huge (and almost all copyright-infringing) world of “fan fiction,” in which fans rework, sometimes in X-rated fashion, characters and plots drawn from their favorite books and films. Unsurprisingly, there are several Star Trek fan fiction archives on the Internet.

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Google Books allows users to search an enormous database of books—Google has digitized over 15 million, and its ambition is to reach all the books ever printed. Google does not allow access to copyrighted books unless it has an agreement with a book’s publisher. Instead, users receive a list of books that include their search term. Click on a book, and Google shows as much as its publisher has authorized, or, if there is no agreement with the publisher, Google shows only a few lines of text containing the relevant terms. Google Books also provides, for the first time, access to millions of orphaned books.

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Not quite as far-fetched as it may seem; the nonfiction book
Freakonomics
(Steven D. Levitt and Stephen J. Dubner,
Freakonomics: A Rogue Economist Explores the Hidden Side of Everything
[William Morrow, 2005]) spawned not only a blog (to which we are contributors), but a motion picture documentary and a radio show.

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The first font was the “Donatus-Kalendar” letter style designed by Peter Schoeffer, the scribe that Gutenberg enlisted to design the first typeface for his new invention. Schoeffer’s font mimicked ornate 13th-century German handwriting.

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Times New Roman is called “Times” because it was commissioned by the
Times of London
in 1931, and was created by Cameron Latham of the UK firm Monotype.

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There is one small qualification: once a font is rendered in computer code—which is the form in which modern fonts are employed by almost all users—the code itself can be copyrighted. In practical terms, however, this does not amount to much. Just as a funny idea can be expressed in many different ways, any particular letter shape can be described in many ways in computer code.

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Maybe too much so. In the fall of 2009, at the depth of the pain on Wall Street, Calvin Trillin wrote in the
New York Times
of meeting a Wall Street veteran who, sitting next to him in a bar, proclaimed he could explain the collapse in one sentence. “Let’s hear it,” said Trillin. The system collapsed, the man said, because “smart guys had started working on Wall Street.” Calvin Trillin, “Wall Street Smarts,”
New York Times,
October 14, 2009.

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Recently, Wall Street banks called on New York senator Charles Schumer to provide relief from a particularly nettlesome patent plaintiff, a Texas entrepreneur named Claudio Ballard, who owns patents on a method for processing digital copies of paper checks. Ballard has asserted his patents successfully against many of the biggest banks. In 2011, Schumer inserted a provision into the America Invents Act, signed into law by President Obama on September 16, 2011, that would allow the banks to get Ballard’s patents reexamined by the PTO.

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These data were subject to California public records laws that made them widely available—so even if there were broader copyright protection for data generally, information like this would remain largely free for the taking—but the example is nonetheless illuminating.

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And the originator might not even survive the process that it sparked. In the once-decaying meatpacking district of New York the quirky bistro Florent was a pioneer, but today—in a neighborhood where a handful of meatpacking operations eke out an existence amid an onslaught of restaurants, clubs, hotels, and high-end retail—Florent is a just a memory.

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As we discuss further, creation and distribution are not the same, and music illustrates this well. Creating a new song has always been relatively cheap. But distributing it was, until recently, expensive. Technology has changed that in ways that have important implications for how we think about the threat of copying.

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As it turns out, IP law does not take this wide spectrum of costs into account. Whether a work is cheap or expensive to produce matters not at all to whether, or how long, it is protected by a copyright or patent.

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Though there is some latitude at the upper reaches of fashion. In the 1980s, for instance, Japanese designer Issey Miyake sold three-sleeved sweaters; the third sleeve hung down the back.

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As Conrade says to Borachio in
Much Ado about Nothing
, “I see that the fashion wears out more apparel than the man.”

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This is yet another way in which technology can alter these dynamics. As Spike Lee depicted in
Do the Right Thing,
in the ancient era of the boombox, owners could broadcast their tastes and identity to everyone nearby (at least as long as the batteries lasted). Radio Raheem would have been a very different character in the age of the iPod.

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By which we mean American-based; many of those we interviewed are actually foreign-born or foreign-trained.

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As alluded to earlier, the greater effect of copies may be to promote the original—in a way akin to advertising—and also to promote the originality of David Chang. We say more on this later in the chapter.

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The recent embrace of 3D theater technology only adds to this dynamic—at least until 3D televisions, which are increasingly common, improve in quality and price.

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Though in a strange twist, the occasional tribute band member has crossed over to the original. When in 1992 lead singer Rob Halford left Judas Priest, for instance, he was replaced by Tim Owens of the Judas Priest tribute band British Steel.

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Hollywood’s US box office take in 2011 declined by 4.5%; observers blamed a deepening recession and an unusually weak crop of big-budget films. Meanwhile, Hollywood’s foreign box office receipts continued to swell in 2011, growing by 7% to a new record of $13.6 billion.

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As we noted earlier, cover bands are of course an attempt. But they pose little risk to most popular bands and might even be thought to whet the appetite and keep the flame alive for many fans of the real thing.

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We’re old enough to remember using paper encyclopedias, but we used the Wikipedia entry for “Wikipedia” to gather much of the basic information we just gave you about Wikipedia. (And then we fact-checked it using other sources.)

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As we discussed in Chapter 5, while it is theoretically possible to claim that a football formation is a choreographic work, and therefore capable of receiving copyright protection, no one has ever successfully done so.

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In response to a generation of would-be lawyers raised on Google and fed up with complex database programs, the legal databases are moving toward much simpler interfaces that require less training to use effectively—but are likely to produce less stickiness in the user base.