A Love Of Competition, Not Protectionism

from the culturally-difficult dept

There's an interesting dichotomy that goes on in captialist societies. We all know that markets grow and innovation occurs through competition and the ongoing process of companies trying to out-innovate each other -- but each individual organization is always looking to monopolize its own world. In fact, that is what innovation is all about. You innovate to get a monopoly on whatever that innovation is, for as long as you have it. The problem, however, is that too many have build up the belief that these monopolies should be lasting, or even permanent. That's not true. For the health of society and the company, they absolutely should be fleeting monopolies. That's the only way to make sure a company changes with the times and is flexible enough to handle market changes. But that quixotic and dangerous pursuit of permanent monopolies leads to dangerous situations -- often using or demanding protectionist policies from gov't regulators.

Eliot Spitzer (yes, that Eliot Spitzer) makes some interesting points in a column where he attacks both the SEC and GM for focusing on protectionism rather than competition. When it comes to GM, the argument is easy to understand. GM has done much to try to resist novel and useful innovations in the interest of protecting its own business. As for the SEC, that's a bit more of a stretch -- and obviously stems from Spitzer's own efforts back when he was NY's Attorney General and attempted to take on Wall St. while the SEC resisted any such investigations and lawsuits. Thus, to him, he represented "competition" and the SEC tried to block out such competition (which brings up some weird questions concerning whether or not it's good to have competition within the regulatory structure).

But the key point Spitzer makes is that we need to build a "culture of competition" into American organizations, rather than protectionism. That sounds good, but I'm having trouble seeing how you could actually make that work directly. There are some things you can do on the margins -- and, in fact, research has shown that making noncompete agreements unenforceable actually does increase competition (is it worth pointing out at this time that noncompetes went from unenforceable to enforceable in Detroit in the 80s...?). But, you can only do things like this at the margin. There is no way to flat out change a culture in this manner. Instead, I think you actually need to create incentives for companies to take a longer term view, rather than the short term view we get today. With the quarterly report set up, everyone has a 3-month time horizon on pretty much everything they do (in some cases one year, but never more). If companies actually had incentives to look at the significantly longer term, they would recognize themselves that ongoing competition and innovation are the only way they're going to continue successfully serving a market in the long run. But until someone comes up with a way to create incentives that allow for both transparency and longer term views, then it's likely that companies will focus on beating down competitors rather than winning through innovation.

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Is Printing Call Girl Photos Fair Use?

from the transformative-use dept

Last week, Mike noted the controversy over whether printing racy photos of Ashley Alexandra Dupre, the prostitute at the center of the Eliot Spitzer scandal, was fair use. He thought it was, and William Patry has an interesting post exploring one precedent that might support a fair use finding. He describes a 2000 case in which a Puerto Rican model's nude photographs were the subject of a copyright dispute. The model had been crowned Miss Puerto Rico Universe 1997, and some people thought that she had set a bad example by posing nude. Newspapers began printing the photos as part of their coverage of the dispute, and the holder of the copyright in that case sued the newspaper for copyright infringement. The US Court of Appeals for the First Circuit ruled in 2000 that the use of the photos were fair use because the photos were integral to the scandal the newspaper was reporting on, and that the use was "transformative" because the news-reporting function the newspaper was making of the photos was significantly different than the portfolio-building purposes for which the photos were originally taken. Patry suggests that similar reasoning might apply in this case. However, one of Patry's commenters points out an important consideration on the other side: in the Puerto Rico case, the photographs were at the center of the scandal. Pictures of Ms. Dupre are not central to the Eliot Spitzer scandal in a way that's remotely analogous. So it might be harder to make a fair use argument in this case. The key question, I think, is whether the judge felt that the photos were integral to the reporting of the story, or whether the story was just an excuse to increase circulation by printing some racy photos. That seems like a close call to me.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Spitzer Call Girl Threatens News Outlets Over Copyright

from the it-all-comes-back-to-copyright dept

Well, it had to happen sooner or later. With the press going nuts printing photos of the call girl at the center of the Eliot Spitzer affair, her lawyers are suddenly making some noise about how using these photos violates her copyrights on them. Most of the photos were taken from her MySpace page, which ties back to a recent story here about how the press is trying to determine what's fair game in a social networking profile when the subject becomes newsworthy. While some think that a fair use claim by the newspapers is weak, US laws on copyright do allow a fair use defense in news reporting, which would seem to apply to the photos. They're certainly not printing these photos for their artistic value.

The Associated Press, who has syndicated many of the photos in question has defended its use of the photos saying: "The Associated Press discussed the photos obtained from the MySpace page in great detail and found that they were newsworthy. We distributed the photos that were relevant to the story." Of course, as the What's Fair Use? blog points out, there's a bit of irony here. Just a few weeks ago, the AP used legal threats to get a photo-journalism criticism blog to stop using AP photos, claiming that it was copyright infringement. Apparently, the AP has different rules for itself than it has for others.

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