The other week I heard two back-to-back pieces on NPR’s All Things Considered about a bill that passed creating a new Intellectual Property Czar. The first made me queasy, the next provided some comic relief. Let’s start with the troubling news from Laura Sydell’s What Will The Intellectual Property Czar Do?

The bill also has a forfeiture provision that will allow law enforcement to seize assets from anyone accused of intellectual-property theft — even before they are proven guilty. It also authorizes more than $50 million to help state and federal law-enforcement agencies.

…According to the U.S. Chamber of Commerce, 40 percent of the nation’s economic growth comes from intellectual property, including music, movies, pharmaceuticals, fashion and software. But the biggest backer of more law enforcement is the entertainment industry.

The focus of both articles is illegal file downloading and copying. My ears perked up when I heard the word ‘fashion’ but clothing design did not appear again in either article. WWD wrote Anticounterfeiting Measures Seen as Boost to Battle Bogus Goods, but it focused only on counterfeit goods – those exact replicas of branded designer goods emblazoned with trademarked logos and meant to pass off as the real thing – and not on knockoffs – garments and accessories that are ‘inspired’ by designer pieces, but do not contain logos and labels of the source luxury label.

As we know, copies of a fashion designer’s intellectual property – from the legitimately branded to the knockoffs – are still tangible garments that still require human hands to feed the physical components through equipment largely unchanged over the past 50-100 years.

catlike agility

Contrast this with the entertainment industry, which 100 years began its rise to economic and social power only because new technological developments enabled it to produce copies of works that could reach and audience beyond live performances in theaters and concert halls. The twentieth century saw the reign of the producers and production companies – those in charge of the expensive technology required to capture, edit and distribute the images and sounds of the cultural commodities. But a classic, poetic example of dialectics, the march of technological innovation that enabled the fortunes of Hollywood executives is now threatening their demise. So just like a mega corporate conglomerate, it turns to the U.S. Government to call in the favors of campaign contributions act as personal henchmen for their industry. While the bill sailed through Congress, at least it was good to see that the Justice Department demonstrated some opposition:

..The Justice Department sent a strongly worded letter to Congress opposing certain provisions. Officials in the DOJ did not like the idea of an IP czar. That’s why California Rep. Zoe Lofgren voted against the bill: She agreed with the DOJ when it said that such a position would take away the department’s autonomy. Lofgren said the bill will “divert resources from the drug cartels and organized crime and mortgage fraud and investigating the pirates on Wall Street to do copyright enforcement.”

While the Justice Department did not succeed in striking down the entire bill, at least they did succeed in eliminating some of it’s more audacious provisions:

The DOJ had even more objections to earlier versions of the bill. One provision, since struck, authorized the Justice Department to take on civil cases and collect damages for private copyright holders. That’s something DOJ has never done before. In its letter to Congress, the DOJ forcefully argued that civil cases should be left to the people who own the copyrights; it said it did not want its staffers to become “pro bono lawyers” for industry.

Now for the comic relief. (and explanation of the above photo). I’ve included some excerpts below, but the audio version is really more funny and worth a listen. From Linda Holmes’ Avast Ye, Downloaders: The Pirate Czar Is Coming:

Beware, music copiers and furtive downloaders of obscure reality shows: the Pirate Czar is coming.

The Pirate Czar will protect giant media companies from … well, from you.

…The Pirate Czar would be part of the new interagency intellectual property enforcement advisory committee, which is in charge of the joint strategic plan against counterfeiting and infringement.

…Unfortunately, unauthorized file sharing is wildly entrepreneurial and adapts with catlike agility. You know what’s not going to adapt with catlike agility? The interagency intellectual property enforcement advisory committee’s joint strategic plan against counterfeiting and infringement. It’s the way of the Internet to move quickly; it’s the way of joint strategic plans to be five years out of date.

You know what else adapts with catlike agility? Fashion. It is institutionalized adaptation by definition. Companies paying thousands for each license to view up-to-the minute trend forecasting data. To quote Project Runway, “In fashion one minute you’re in, and the next minute, you’re out.”

And you know what else does not adapt with catlike agility? The judicial system. By the time a design copyright case (which is distinct from a counterfeiting case, which I still consider legitimate) is heard and decided, the garments in question will be out of season and off the shelves. The only ones who will profit will be the lawyers, and the large corporate clients who can afford them.