intellectual communist

Rebecca Charles, owner of Pearl Oyster Bar, where I have never eaten, is suing someone who runs a similar restaurant on the grounds that he is taking her intellectual property. Yeah, he was her sous chef. But gray wainscoting is her intellectual property? Oyster crackers at a seafood restaurant are her intellectual property? Puh-leeze.

This just displays why the whole idea that intellectual property is somehow the same as physical property is silly. There are two macro-level reasons to protect intellectual property: so people have an incentive to invent and design and come up with cool stuff because they'll be able to make money off it, and because it's unfair when someone steals your idea and makes money off it. Unfortunately, that whole incentive thing is kind of getting lost and law is getting reshaped to value only the second one.

This is really what the internet radio copyright issue was about: internet radio stations, most of which make little money, are being required to pay SoundExchange, the royalty organization, a lot more than they previously had to. Worse, their decision is retroactive, which will probably put some of them out of business. This unambiguously reduces the flow of ideas and music and general awesomeness, and is opposed by many smaller artists, who get a lot more exposure through internet radio than regular radio. Similarly, early hip-hop artists could do crazy awesome sampling in which they used little bits of dozens or hundreds or thousands of songs to make a track or an album, which is instrumental to Public Enemy's early sound. In 1991, copyright restrictions tightened; in 2004 the 6th Circuit ruled that NWA sampling an unrecognizable bit of George Clinton constituted copyright infringement. Legal radio play for that kind of sound is over. Now if someone is going to sample another song, they're going to make damn sure they get what they pay thousands of dollars for, so you actually get a less creative sound from sampling as artists play bigger, less altered parts of the sample.

Enforcing the "it's unfair for people to steal your stuff" goal of intellectual property is particularly dumb because it's not like it hurts George Clinton to have an unrecognizable, heavily altered 3-note guitar riff show up in an NWA song. That's very clearly new innovation, new art, the kind of thing that should be a major goal of intellectual property laws, that it makes me a little despairing about the stupidity of the system. It also shows up why it's so dumb to treat intellectual property like an exact analogue of physical property: when someone 'steals' your intellectual property, you can still use it. If you take my electric pencil sharpener, I can't use it anymore. Intellectual property law needs to differentiate more clearly between situations where someone takes your intellectual property and you lose some important use of it (e.g. selling bootleg DVDs) and situations where something you made becomes inspiration (restaurants, books, musicians do this all the time) or part of a new art form in a way that doesn't limit your use (sampling).

By these standards, I think it's pretty clear that Ed's Lobster Bar gets to have gray wainscoting and a marble bar. And he may win, but I wish people would stop with the rhetorical equating of intellectual and physical property already. Especially since just about everything owes some kind of intellectual debt to someone, including all those musicians SoundExchange alleges to protect, making it almost impossible to tell where these lines should be drawn. Are we now going to prosecute all the Beatles rip-off bands? Every angsty teen-age girl who covers an Ani song at an open mike night? There's a telling moment in the NYT article in which Rebecca Charles, whose number one complaint about Ed McFarland's restaurant is the Caesar salad, whose recipe she says he stole, describes where her recipe came from: "She learned it from her mother, who extracted it decades ago from the chef at a long-gone Los Angeles restaurant." Does she owe her mother royalties? Does her mother owe the chef? Where is this silliness going to stop?

In the Public Enemy interview linked above, Chuck D gets asked what he thinks about fans remixing his tracks without permission. He says, "I think my feelings are obvious. I think it's great."