Clothing designs and cooking recipes can’t be copyrighted. They’re creative expressions (some more than others). They’re fixed in a tangible form. But there’s a 200-year-old rule that things that are “useful” can’t be regulated. At least, that’s what the New York Times says in their article “OK, Knockoffs, This is War,” which ran on March 30th. I haven’t found any original expression of this “legal principle” yet, but the NYT calls it “outdated in this era of sophisticated mass copying.” They go on to quote a lawyer:

”The whole underpinning of that 200-year-old law of functionality was to promote creativity and innovation,” said Alain Coblence, a lawyer hired by the Council of Fashion Designers and by fashion trade groups in Paris and Milan, which also promote the legislation. ”Yet the situation is exactly the reverse because designers now must ask what is the incentive to innovate if you know your creation is going to be stolen within days and your designs are going to be used before you have a chance to use them for yourself?”

Now, I’m by no means an expert on copyright law, or law of any kind, but I fail to see how this law is “outdated” just because it allows copying. After all, rich people will always buy designer originals rather than knockoffs, and regular people will never buy designer originals. I’m also having trouble imagining what we regular folks would be able to buy once all the clothing designs out there have been copyrighted with rights reserved for a “limited” time of only 120 years. (I’m using the current term length for unpublished works because I don’t know exactly how you would “publish” a dress or a coat.) How will this encourage innovation? I think it would innovate us right out of clothing!

There seem to be two main arguments for increased regulation: copying isn’t “fair,” and “people now have more disposable income” so they can afford the originals. The second reason needs no comment. The first sounds wonderful and all, except that my understanding of copyright law is that it has very little to do with fairness. Plagiarism isn’t “fair,” but unless it violates copyright law it isn’t actually illegal. And from my limited knowledge of fashion knockoffs, they get most of their fame from “citing” the original source. After all, those Oscar dress knockoffs wouldn’t sell very well if they weren’t copies of dresses worn at the Oscars.

Luckily, the NYT seems to be on my side. Author Eric Wilson ends with a quote from Gela Taylor, a designer at Juicy Couture talking about the proposed regulation.
”I don’t think anybody’s naive about this,” Ms. Taylor said. ”Fashion is a strange and ephemeral thing. But this proposal is for people who are not inspired by anything but looking for an easy way to make money.”

Now my question is, isn’t scholarship “useful”?

Late last year, the Department of Justice requested that Google and several other search engines (including Yahoo!, MSN, and AOL) turn over a sampling of randomly selected searches that had been run over a two-month period. Now that’s a scary thought… all of our searches suddenly candidates for review by lawyers and who knows who else. Well, Google decided not to give up these searches, and last week federal district judge James Ware ruled that the motion “compelling Google to disclose search queries of users” is denied (see the ruling, last paragraph).

Google is understandably pleased. It sure didn’t take them long to get the ruling onto their blog. But even more imporantly, this is an important ruling for those concerned about the privacy of information gathering. In his ruling, Judge Ware correctly identified “the interest of individuals in freedom from general surveillance by the Government of their use of the Internet or other communications media” as one of “three vital interests” raised by the case.

What is particularly interesting to me, however, is that Google didn’t argue that handing over our searches would violate our privacy… the Judge did. As Ware says on page 6 of the ruling (at the beginning of the Discussion section),

Google primarily argues that the information sought by the subpoena is not reasonably calculated to lead to evidence admissible in the underlying litigation, and that the production of information is unduly burdensome. The Court discusses each of these objections in turn, as well as the Court’s own concerns about the potential interests of Google’s users.

So, sua sponte, the Court had to argue that even though the Government was pretty sure that the text of our searches couldn’t provide enough information to be compromising, Ware realized that sometimes people search for their own names plus other information, or for social security numbers, or credit card numbers.

This is all well and good, but two things mitigate the joyousness of the news. First, the Court didn’t actually express a legal opinion on the privacy matter because the case as it was presented didn’t actually call for a ruling on privacy. Second, if the Government wants the information later, they can always get it via the USA PATRIOT Act (and yes, it’s an acronym… look it up on page 2 of the act).

Still, things could be a lot worse. This is a baby step in the right direction.