I want to elaborate on an idea that I was able to articulate only briefly on yesterday's edition of the Kojo Nnamdi show, which featured a discussion of the proposal pending before Congress to extend copyright to cover fashion designs. My friend and colleague Kal Raustiala and I have explained, in an article you can find here, why extending copyright to the fashion industry is a very bad idea. But for the moment I want to talk about a broader concern that the move toward fashion copyright highlights — the everyday corruption that characterizes the entire process of intellectual property lawmaking. (Note: these are my comments alone; I don't speak here for Public Knowledge, my co-author, or anyone else other than myself).
When we talk about “corruption”, we usually think of legislators taking bags of money in exchange for their vote on a certain issue. The corruption I'm talking about doesn't work exactly that way — but it's extremely troubling nonetheless. Take the recent proposal to enact fashion copyrights. The fashion industry has been humming along quite nicely for decades, thank you, without copyright regulation. So why does growth and innovation in fashion easily co-exist with copying? It's not hard to understand. Designers innovate, and they also copy. The copying helps to set trends. Trends help to drive consumption of fashion goods. More copying helps to destroy, though overexposure, the same trend that copying helped establish in the first place. The fashion industry moves on to the next trend. Consumers are tempted to purchase same. The cycle goes on. Money is made. And — importantly — copying does not harm the process. Copying is the process.
So along comes a trade association — the Council for Fashion Designers of America — looking to change all this. The CFDA is run by and speaks for a small group of elite designers. It does not speak for the many thousands of non-elite designers working in the U.S. industry. It does not speak for apparel manufacturers, distributors, or retailers. It speaks for a few people who sell apparel for thousands of dollars an article. These are people who can afford to compete in a “revised” fashion industry where everyone is subject to being sued for copyright infringement for every new design. These are the people who can afford to lawyer up.
But that may not matter in our system, because the CFDA has two principal advantages. First, what they want — stronger IP rules — is what the content industries (i.e., Hollywood, the recording industry, the big commercial publishers, etc.) generally want. The content industries have money, and they give a lot of it to members of Congress. If those members do what the CFDA wants, they transmit a signal to the content industries: “I, Congressman X, accept the content industries' view that more IP is always better, even when it clearly isn't, and the facts be damned.” That's a helpful signal to send when the time comes to ask for campaign contributions.
Second, the CFDA knows how to work the system — they've hired lobbyists (Elizabeth Frazee and Liz Robbins) who spent time working as legislative aides to the member of the House Judiciary Committee who introduced the CFDA's fashion copyright bill — what a nice coincidence! These same lobbyists — Ms. Frazee and Ms. Robbins — have worked for and lobbied for content industry giants such as Disney and EMI. The deal is implicit, but it's not hard to discern: Congressman Goodlatte and his colleagues carry the CFDA's water on the fashion copyright bill; the content industry — which would very much like to eliminate the fashion industry as an example of how innovation sometimes can work (very well) without IP — responds by turning on the money spigot.
Indeed, publicly available data suggests that the spigot is already turned on. Between 2005 and 2007, Liz Robbins' lobbying firm, Liz Robbins Associates, received a total of $540,000 in payments from the law firm of Alain Coblence, the CFDA's lawyer. $540,000. The CFDA should answer some basic questions. Where did this money come from? And to whom has it been promised? Much, if not all, of this money likely was spent on the fashion copyright crusade. And for what? To “convince” Congress — in the midst of two wars, an incipient recession, a housing crisis, and the continued slow strangulation of a great American city (remember New Orleans?) — that the fashion industry requires copyright regulation.
What a colossal joke. And it's a joke at our expense. This is the everyday corruption of our system — a system in which IP policy is put out for bid, and in which the voices of consumers are rarely heard. This last point is very important. The CFDA's little vanity project — which will overturn the long-established and wonderfully effective creative practices of a $200 billion/year industry — threatens to raise prices of apparel and reduce consumer choice for every American. Every American has a stake in this. And yet, because each individual consumer's stake is relatively small, Congress does not hear from outraged shoppers, and there are no campaign contributions flowing in from a principled stance defending consumer interests. In our money-driven political culture, where just about every Congressman is scratching for the corporate buck lest he become one of the few incumbents turned out in an election, that means that consumer interests are ignored.
The everyday corruption of our system badly warps our IP policy. Hell, it badly warps just about every policy. Why is Congress's approval rating in the dumps (22% in the latest AP/Ipsos poll)? Perhaps because the American people realize what's going on — our government is effectively up for sale. Fashion copyright is just the latest example.