What's Wrong With Competition?

from the can-someone-explain dept

A reader named EmJay wrote in with a snide comment about how we wouldn't write about the following story because it's a case where "copyright and patents made sense." I never understand these sorts of comments. We write about all kinds of cases, and if there were one where an intellectual property lawsuit made sense, we'd be thrilled. It would be an example of the system working as planned: encouraging innovation. That would be fantastic. Unfortunately, EmJay's example is no such thing. It's not an example of the system making sense, but of the system being used to slow down innovation and block competition.

The story involves a guy who started making plastic turkey wishbones for Thanksgiving/Christmas celebrations, so that families wouldn't have to fight over the actual turkey wishbone in the traditional "breaking" of the wishbone. Of course, maybe it was just my family, but I don't recall ever "fighting" over the wishbone. Anyway, the agency Young & Rubicam, which represents Sears, had asked for a sample for possible inclusion at Sears. A year later, Sears was selling a similar plastic wishbone, made by a different company, so this guy sued and won. From the article, the guy says they won on both patent and copyright infringement claims, but that's not true. The lawsuit was over copyright infringement claims only, and Sears made two good points that should have prevailed, in our opinion. First, you can't copyright something occurring in nature -- such as a wishbone. Second, the wishbones that Sears ordered were in different colors and sizes than the ones supplied by the original company.

And, in fact, that's exactly how competition should work. Sears pushed another manufacturer to innovate, designing different (and, in their opinion, better) wishbones. That's competition and that's how innovation works. In fact, the guy from the original company now admits that his company didn't do any updating of their design for years while fighting this lawsuit, and are just now starting to update the design. In other words, all copyright did was get these companies locked in a silly legal battle, rather than focusing on providing better solutions to customers. It's too bad this guy was afraid to compete in the marketplace.


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  1.  
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    DanC, Dec 3rd, 2008 @ 9:26am

    Setting aside the ridiculous idea that you could copyright a plastic version of an animal's bone, I was always under the impression that part of what made the whole "breaking the wishbone" tradition special was the fact that there was only one.

     

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    Anonymous Coward, Dec 3rd, 2008 @ 9:44am

    Re:

    me too, but then I realized that this is America's even more important tradition of buying stupid plastic crap.

     

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    PaulT (profile), Dec 3rd, 2008 @ 9:49am

    Re:

    Yeah, but if there's only one, that involves sharing. Something that a lot of people seem unable to do nowadays, especially when there's a cheap plastic imitation available.

     

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    Matt (profile), Dec 3rd, 2008 @ 10:00am

    yep

    I hear ya Mike. The answer to the title question though is this:

    People are lazy and don't like to have to work hard, and are afraid of change. They want to make just enough to make a cushy lifestyle and tell the world to go f themselves. Combine these and you make luddites, which are also usually known as Management.

    Then, we have the people on the other end, who work hard but aren't recognized for their effort or are in jobs that totally don't match their skills.

    Combine the two and you have: companies that can't handle competition and would rather litigate. since they have a luddite lawyer on the corporate salary for cheap. Oh, and what's between all of these? Your run of the mill sheep employee who has no idea.

    Repeat ad nauseum.

     

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    Ima Fish, Dec 3rd, 2008 @ 10:18am

    Here's a relevant part of the appellate opinion regarding whether the wishbone had a valid copyright. Lucky Break Wishbone Corp. v. Sears, Roebuck & Co., 528 F.Supp.2d 1106 (W.D.Wash.,2007)

    Realistic depictions of live animals can be protected by copyright. Satava v. Lowry, 323 F.3d 805, 812 (9th Cir.2003) (glass sculpture of jellyfish); Rachel, 831 F.2d at 1507 (animal mannequins); Kamar Int'l, 657 F.2d at 1061 (stuffed toy animals). However, “the scope of copyright protection in such works is narrow.” Satava, 323 F.3d at 812. To the extent the *1124 artistic choices are not governed by the animal's physiology or by the medium of art, they are original elements that receive “thin” copyright protection. Id. Put another way, a thin copyright “compris [es] no more than [the artist's] original contribution to ideas already in the public domain.” Id. In Satava, the Ninth Circuit held that the artist “may not prevent others from copying aspects of his sculptures resulting from either jellyfish physiology or from their depiction in the glass-in-glass medium.” Id. at 810. The Court concludes as a matter of law that Lucky Break's copyright is “thin.” Lucky Break has also conceded that its copyright is “thin.” Rachman Decl., Ex. 1 (Transcript of Proceedings, Nov. 16, 2006) at 27:25 (Plaintiff's counsel stating, “I will concede that this is a thin copyright.”).


    “Virtually identical,” not “substantially similar,” is the standard for determining whether a thin copyright has been copied, and thus infringed. Satava, 323 F.3d at 812 (quoting Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir.2003) (“When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with only a ‘thin’ copyright, which protects against only virtually identical copying”)); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1439 (9th Cir.1994) ( “When the range of protectable and unauthorized expression is narrow, the appropriate standard for illicit copying is virtual identity.”).


    Defendants also argue that the Sears Wishbone and the wishbone image in the Sears Circular are not virtually identical to the Lucky Break prototype wishbone. There are genuine issues of material fact as to whether the Sears Wishbone and the wishbone image in the Sears Circular are virtually identical to the *1125 Lucky Break prototype wishbone. Accordingly, the Court DENIES IN PART Defendants' summary judgment motion on the issue of whether the Sears Wishbone and the wishbone image in the Sears Circular are virtually identical to the Lucky Break prototype wishbone.

     

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    eleete, Dec 3rd, 2008 @ 10:25am

    Boo Hoo Hoo

    Well, as a teacher, if you cannot use red ink to grade papers I think it points right at the heart of the problem with competition. Many Americans condemn the fact that there are losers in competition. Transforming the loser of a competition to a victim. Then the enemy is competition itself.

     

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    Mark Regan, Dec 3rd, 2008 @ 10:26am

    Gee, here I go again

    Perhaps you guys could direct me to some software company willing to make some software for me similar to but not virtually identical to that sold by Microsoft and when Microsoft sues me I want to have the case decided by this same judge.

    I'd also like to find a manufacturer who will crank out some
    almost identical Apple computers and iPhones. We could use Orange logos and some of my "similar to Microsoft" software to operate them.

     

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    Mark Censor, Dec 3rd, 2008 @ 10:28am

    Competition can improve existing product, but never would have created the product

    The item in question does not occur in nature, it is a plastic imitation of an item occuring in nature.

    The idea to create a plastic imitation is an innovative concept that may not have been dreamt up and pushed to market if the guy didn't have the assurance of copyright protection.

    True, the idea is easy to copy once it is there, but the original proof of concept is the value creation and it only becomes profitable with IP protection. Without such protection, its back to fighting over the turkey wishbone...

     

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    Duane (profile), Dec 3rd, 2008 @ 10:38am

    yes, but

    There's something a little sleazy about having a guy present an idea to your gigantic company, and you almost close the deal with him, but then you crap out, ignore him and take his prototypes and have a Chinese sweatshop make "different" versions for cheaper.

    That isn't competition that's just stealing someone else's idea. I don't know if copyright should be involved here, but I personally think it's nice to see the little guy actually winning a legal fight for once.

     

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    eleete, Dec 3rd, 2008 @ 10:38am

    Re: Competition can improve existing product, but never would have created the product

    Are you serious ? Ever heard of a prosthetic ? Jeez, that is a horrible defense of this 'innovative concept' as you put it.

     

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  11.  
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    Anonymous Coward, Dec 3rd, 2008 @ 10:38am

    Re: Gee, here I go again

    there you go:
    openoffice.org (no more MS office)

     

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    Mike (profile), Dec 3rd, 2008 @ 10:40am

    Re: Competition can improve existing product, but never would have created the product

    but the original proof of concept is the value creation and it only becomes profitable with IP protection

    That's a huge, and very, very wrong assumption. It becomes valuable if people want it in the market, and you can best deliver it to the market.

    It's called competition in the market and it has nothing to do with IP protectionism.

     

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    Lonnie E. Holder, Dec 3rd, 2008 @ 10:53am

    Greedy Sears...

    This story had everything to do with taking the idea and design of another and copying it. As noted in the court's summary of the case, the design of the Lucky Strike wishbone did not copy nature and was unique.

    However, there is a better question. Lucky Break went to Sears to pitch an idea and a design that Sears had never seen before. Sears thought the idea and design were wonderful, so they took the novel idea and design from Lucky Break and went to someone else. Lucky Break was the innovator. Sears would not have had the idea and design had Lucky Break not gone to them.

    Sears has a history of trampling on the rights of others. This trampling on the rights of inventors and designers may be part of the reason Sears is having financial troubles. They keep copying the ideas of other people, so the people that could help Sears with their problem may be avoiding them and going to someone who will treat them with respect instead.

    Keep up the good work Sears! If you keep going the way you have been, you will be another footnote in the pages of history.

     

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    Future Boy, Dec 3rd, 2008 @ 10:55am

    Re: Greedy Sears...

    I'm pretty sure Sears did go out of business...

     

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    David, Dec 3rd, 2008 @ 11:06am

    That is uncanny. I was told about this from a friend of the family during the recent Jewish holiday season. I think he said he knew the inventor himself, but I’m not sure. Anyway, he was upset about Sears “stealing” the idea. I made the same points that you did, and pointed out that it was this competition that made these plastic wishbones cheap and abundant—including for the inventor himself. I also pointed out that the inventor hadn’t gotten a contract signed beforehand barring Sears from selling plastic wishbones (which would have been a stupid thing to attempt). As you often say, this is what happens in a world where people have been told they can own ideas.

     

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    Chuck Norris' Enemy (deceased), Dec 3rd, 2008 @ 11:06am

    Re: Re: Greedy Sears...

    It did in my town...some of their product lines were absorbed into Kmart, which isn't too far from the same fate.

     

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    Ima Fish, Dec 3rd, 2008 @ 11:13am

    Re: Greedy Sears...

    Mere ideas are a dime a dozen. Heck, even less than that. In and of themselves ideas are worthless. The hard and valuable part is turning an idea into a profit. That's what Sears did. (God, I can't believe I just praised Sears!)

    Of course the "idea man" got $1.7 million of Sears' hard earned money and contributed nothing to society other than sitting on his ass.

    Let's try this analogy. Let's assume your son earns his allowance by mowing the lawn every week. One week he decides that instead of actually mowing the lawn, he'd think about mowing the lawn instead. And even if he did imagine a fantastic idea on how to mow the lawn, until that idea was actually implimented the lawn would still not be mowed.

    So my question is, would you still pay your son the same for thinking about mowing as you did for actually mowing?

     

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    VC, Dec 3rd, 2008 @ 11:15am

    "First, you can't copyright something occurring in nature -- such as a wishbone. Second, the wishbones that Sears ordered were in different colors and sizes than the ones supplied by the original company."

    A differently-sized plastic wishbone that comes in several colors is hardly something that occurs in nature. Wishbones do have a characteristic shape and size, but it's plausible that the company that makes plastic wishbones varied the size, shape, and color of its wishbones in a way that would grant it some level of copyright protection. You are way too hasty in your judgment on this point.

     

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    zcat, Dec 3rd, 2008 @ 11:20am

    Re: Greedy Sears...

    ".. Sears has a history of trampling on the rights of others. This trampling on the rights of inventors and designers may be part of the reason Sears is having financial troubles. They keep copying the ideas of other people, so the people that could help Sears with their problem may be avoiding them and going to someone who will treat them with respect instead."

    Which would tend to suggest that the 'invisible hand of the Free Market' has already found it's own solution to this problem without needing to resort to copyright?

    Anyhow, I'm pretty sure that the concept of "making plastic imitations of naturally occurring items" has been around for quite a long time already. Plastic skeletons for halloween, plastic wishbones for thanksgiving. Where's the innovation?

     

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  20.  
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    Anonymous Coward, Dec 3rd, 2008 @ 11:38am

    Re: Re: Greedy Sears...

    In this case the small company did have plans to manufacture products and did present its idea to Sears.

    If Sears hadnt stolen the idea, this company would have manufactured those plastic bones.

     

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    Anonymous Coward, Dec 3rd, 2008 @ 11:41am

    Re: Re: Greedy Sears...

    As silly as it might sound it is an innovation. If it wasnt why didnt sears manufacture them before these people. The fact that sears copied this thing and sold millions of them shows that it is indeed an innovation.

     

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  22.  
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    Anonymous Coward, Dec 3rd, 2008 @ 11:50am

    Re: Gee, here I go again

    reactos, an open source os with the look and feel of windows xp but free

     

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    Duane, Dec 3rd, 2008 @ 11:51am

    Re: Re: Greedy Sears...

    Actually the company the "idea man" was running was already making the wish bones and were a success locally. They were just looking to take things to the next level by landing a big client.

    In many cases, your ass-sitting scorn is deserved, but not in this one.

     

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    Anonymous Coward, Dec 3rd, 2008 @ 11:53am

    Re: Gee, here I go again

    Ummm... last I checked, the items you mentioned are covered by patents AND full copyrights, not "thin" copyrights which is a very important difference.

    Someone should direct you to a higher education so you can learn reading comprehension skills.

     

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    Anonymous Coward, Dec 3rd, 2008 @ 12:27pm

    Re: Re: Re: Greedy Sears...

    It shows there was a demand, but that doesn't mean it was an innovation.

     

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  26.  
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    Anonymous Coward, Dec 3rd, 2008 @ 12:31pm

    I've seen wooden wishbones that were made hundreds of years ago, and rubber ones made for science classes, it amazes me that we are so screwed as a nation that this crap could deserve a patent or a copyright.

     

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    Anonymous Coward, Dec 3rd, 2008 @ 12:47pm

    In fact, the guy from the original company now admits that his company didn't do any updating of their design for years


    How do you update a plastic wishbone?

     

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  28.  
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    Steve R. (profile), Dec 3rd, 2008 @ 12:57pm

    Re: Re: Greedy Sears...

    Nov. 17, 2004 article from CNN
    "Kmart is buying Sears, Roebuck & Co. for $11 billion in a deal that will marry two of the nation's oldest retailers that had trouble keeping up with the changes in American culture around them.

     

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  29.  
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    Willton, Dec 3rd, 2008 @ 1:00pm

    Re: Re: Greedy Sears...

    Mere ideas are a dime a dozen. Heck, even less than that. In and of themselves ideas are worthless. The hard and valuable part is turning an idea into a profit. That's what Sears did. (God, I can't believe I just praised Sears!)

    Of course the "idea man" got $1.7 million of Sears' hard earned money and contributed nothing to society other than sitting on his ass.

    Let's try this analogy. Let's assume your son earns his allowance by mowing the lawn every week. One week he decides that instead of actually mowing the lawn, he'd think about mowing the lawn instead. And even if he did imagine a fantastic idea on how to mow the lawn, until that idea was actually implimented the lawn would still not be mowed.

    So my question is, would you still pay your son the same for thinking about mowing as you did for actually mowing?


    The problem with this line of reasoning as applied to this case is that the creator did implement the idea, as he created a usable device that can be sold on the market. All Sears did was take that device, cheaply copy it, and then start selling it as if it were its own.

    And don't give us this malarkey about the inventor "contribut[ing] nothing to society other than sitting on his ass." If I have my facts right, the wishbone creator actively presented his creation to Sears in the hopes of striking a business deal. Sears rejected the business proposal but kept the creation, turning the item into a good for sale while giving nothing back to the creator. Sears would have had nothing to sell in this arena but for the contribution of the wishbone creator. It is utter nonsense to say that the creator had no hand in Sears realizing this wishbone-related profit.

     

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  30.  
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    DanC, Dec 3rd, 2008 @ 1:05pm

    Re:

    it's plausible that the company that makes plastic wishbones varied the size, shape, and color of its wishbones in a way that would grant it some level of copyright protection.

    And the ones Sears ordered differed from the ones made by the original company, so there shouldn't be a problem. Unless you're seriously suggesting that one company should have the sole right to make plastic wishbones?

     

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    mlj, Dec 3rd, 2008 @ 1:31pm

    In the Biotechnology and pharmaceutical industries most research and billions of dollars annually is spent on treatments and technologies that fail to ever make money with out patents these loses would never be recovered. But, finding a headline that says drug company made money off of patented drug would be really hard to find. I agree that a plastic wish bone should be a product that can be patented, and its a bad example of the above point. I think that if there was no protection of rights, for new products, drug companies would only take on minimal finical risk ventures this would slow progress.

     

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    Ro, Dec 3rd, 2008 @ 1:32pm

    I think it is quite fair to consider this unfair infringement of the first guy's copyright. A plastic wishbone is such a stupid idea that if more than one ever turned up in any mode other than prosthetics for turkeys then it is obvious that the second product was just ripping off the first. The second guys don't need the business anyway they are already a successful plastics manufacturer otherwise they wouldn't have been approached to rip off the first guy. The first guy needs all the breaks he can get, as he is the inventor of the plastic turkey wishbone he obviously doesn't have much going for him.

     

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  33.  
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    teknosapien, Dec 3rd, 2008 @ 2:02pm

    PSSST did you hear

    Tom the turkey just sued both parties for infringement on its biological make up

     

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  34.  
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    Willton, Dec 3rd, 2008 @ 2:03pm

    Re: Re:

    And the ones Sears ordered differed from the ones made by the original company, so there shouldn't be a problem.

    Really? Was it really different? Do we have examples of these wishbones to make an honest comparison? Or are you just making an assumption based on Mike's characterization of the case, which has no support in the articles he linked?

     

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  35.  
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    Anonymous Coward, Dec 3rd, 2008 @ 2:12pm

    This individual engaged in "innovation" as that term is constantly used on this site. He had an idea, he reduced it to a physical embodiment, and he then began manufacturing and successfully selling his product. The fact some might call it trivial is irrelevant...he did the legwork and took it to market.

    This is not a case of some unrelated party wanting to compete in the wishbone-making market. It is a case about a company that approached the manufacturer, asked for and received samples, asked for and received a quote for supplying the product, contacted the manufacturer confirming the quote, asked for some changes to be made and the quote updated, received the updated quote, contacted the manufacturer that all was in order and accepted the quote, repudiated the acceptance of the quote, and then sent the whole kit and kaboodle of samples and packaging to China so that the product could be bought more cheaply.

    The manufacturer lost the sale. Sears turned a tidy profit.

    As luck would have it, the manufacturer was not stupid. He secured a copyright on the article (which is totally proper and valid), as well as on the packaging that accompanied the samples he originally provided. Of course, Sears was deaf, blind and dumb, it likely never occuring to its execs and buyers that stringing a guy along was not a smart business move.

    Sorry, but David did deserve to win under these circumstances, and it was through copyright law that he ultimately prevailed. Mr. Masnick's view on the validity of the copyrights notwithstanding, a federal district court judge came to precisely the opposite conclusion. Why? Likely because he had real evidence in hand, heard extensive arguments by both sides concerning the copyright issues, did independent research to determine how the issues should be resolved, and then informed the parties that the plaintiff was right and the defendant was wrong. Of course, the possibility cannot be discounted that the judge would have held differently had techdirt filed an amicus brief.

     

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  36.  
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    eleete, Dec 3rd, 2008 @ 2:38pm

    Re: Re: Re:

    Willton, do you ever view logic and reason as anything other than an argument to be won ?

     

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    eleete, Dec 3rd, 2008 @ 2:40pm

    Re:

    A quick view of Willtons post above is the schematic for how that is accomplished.

     

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    Lonnie E. Holder, Dec 3rd, 2008 @ 2:45pm

    Re: Re: Greedy Sears...

    Wait a second. The "idea man" took a sample of his product to Sears with the intent of selling the product. That hardly seems like "sitting on your ass." The "idea man" left a sample of his product with Sears. Again, hardly sitting on your ass. The "idea man" proposed that Sears could make money with his product. Once again, the sort of thing that people on this site promote. However, Sears made virtually identical copies of the "idea man's" product and sold it. So, the "idea man" made the product, pitched the product and the market it might have, left a sample, and then Sears took the benefit of all the labor the "idea man" put into the actitivity to that point.

    To use your analogy, your son comes to you proposing that he mow your lawn in exchange for an allowance. Your son even mows your lawn in a unique way that enhances the beauty of your lawn as a sample of his product. Your son even proposes that his technique will enhance the value of your house and certainly will enhance your esteem with the neighbors. You then hire someone who asks half as much as your son was asking and teach that someone to mow the lawn in the same way.

    So my question is, since your son put all the effort into coming up with the technique of mowing your yard, and even giving you a free sample, would you really go to someone else who was cheaper, but was clueless, and then put the time into alleviating their cluelessness?

     

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  39.  
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    Lonnie E. Holder, Dec 3rd, 2008 @ 2:49pm

    Re: Re: Re: Re: Greedy Sears...

    roflmao...I am unable to figure out where you stand with respect to intellectual property. If you are anti-IP, then it would seem that you would have to agree with Mike Masnick's definition of innovation, which is bringing a product to market in a form desired by people. It seems like this product meets Mike's definition because Sears appears to have arranged for a virtually identical copy of the sample provided by the idea guy.

     

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  40.  
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    Lonnie E. Holder, Dec 3rd, 2008 @ 2:53pm

    Re: Re:

    DanC:

    According to the court records, avian experts testified that the copyrighted plastic wishbones differed from actual wishbones in several significant ways (I bow to the greater knowledge of avian experts - my level of knowledge is bird/not bird, and even then I am unsure of whether I am correct). Apparently the non-real wishbones of Sears were essentially identical to those provided by the guy who originally created them. So, apparently there was a problem.

     

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  41.  
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    Lonnie E. Holder, Dec 3rd, 2008 @ 2:54pm

    Re:

    Well, the anti-IP people here could probably tell you how obvious it would be to update a wishbone, silly.

     

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    Lonnie E. Holder, Dec 3rd, 2008 @ 2:56pm

    Re:

    I should have read your post before I wrote mine. Nice summary.

     

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    DanC, Dec 3rd, 2008 @ 2:56pm

    Re: Re: Re:

    Really? Was it really different? Do we have examples of these wishbones to make an honest comparison?

    Huh huh, do ya huh huh? Please calm down.

    From Sears' motion to dismiss, page 14:

    The Sears Wishbone is not the same size as the Lucky Break Wishbone, it is actually smaller. The Sears Wishbone is also a different color, and the plastic is of a different texture. The Lucky Break Wishbone comes to a sharper and larger point than that of the Sears Wishbone. The angle of the diverging branches of the bone is smaller than the Lucky Break Wishbone, and the flat segment connecting the branches of the bone is noticeably smaller. The branches of the Lucky Break Wishbone are also longer. The ends of the branches differ in shape and in thickness, and the Lucky Break Wishbone's branches include grooves, indentations and seams not present in the Sears Wishbone, and visa versa.

     

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    Anonymous Coward, Dec 3rd, 2008 @ 3:50pm

    Re: Re: Re: Re:

    Sounds to me like like cosmetically, it's different, but the functionality... Well, not so much.

     

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    DanC, Dec 3rd, 2008 @ 4:55pm

    Re:

    He secured a copyright on the article (which is totally proper and valid)

    Sorry, but "totally proper and valid" is still questionable, regardless of the jury's decision.

    a federal district court judge came to precisely the opposite conclusion.

    Actually, that isn't true. The judge declined to make a decision on the matter due to the limitations of the motion to dismiss. From the hearing:

    And I'm going to decline to do that on a motion for challenging -- a 12(b)(6) motion to dismiss. I have to accept everything as true in the pleadings, and my looking at a picture doesn't get you there. So to the extent you are asking me to dismiss the copyright claim based on 12(b)(6), I decline to do so.
    ...
    And the reason is that I think it requires me to assess the similarities between the Lucky Break wishbone, which is in a picture -- I don't even have the benefit of looking at the nice exhibit that you filed and I peeked at, but then
    decided I couldn't consider -- and a turkey wishbone that would occur in nature. I think that requires me to analyze the two, and I can't do that on the motion to dismiss under 12(b)(6).


    A jury decided that Sears infringed the thin copyright of Lucky Break, not the judge.

    Of course, the possibility cannot be discounted that the judge would have held differently had techdirt filed an amicus brief.

    Of course, the possibility cannot be discounted that the jury was wrong. That's why there are appeals courts.

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous Coward, Dec 3rd, 2008 @ 5:40pm

    Re: Re:

    You continue relying upon pre-trial dispositions from 2006 and 2007. Trial was held this year, the plaintiff prevailed, the defendant filed a motion for judgement as a matter of law (JMOL), judge denied the motion, and final judgement in favor of the plaintiff was entered on or about Oct. 28th. The final judgement confirmed an award of pecuniary damages suffered by plaintiff in the amount of about $200K, and $1.5M attributed to the profits earned by Sears as a result of its actions.

    Please understand that arguments contained in litigation briefs are just that...arguments. It is evidence presented in court that is relevant. Moreover, it is not at all uncommon for a slew of orders/decisions to be issued from the bench long before a trial on the merits is even conducted. In this particular case about two years of pre-trial motions and orders winnowed the case down to just the two copyright issues, and it was on these issues, based upon the evidence presented, that the jury held in favor of the plaintiff. If the evidence, as you seem to believe, is so compelling that no reasonable jury could have arrived at the decision it did, the judge would most certainly have overruled the verdict when the defendant filed its motion for JMOL. The fact the judge denied the motion and entered a final decision runs counter to what you and Mr. Masnick seem to feel should have been the outcome. All I can say is that the judge and jury sat there in court, heard all the evidence, and then rendered a verdict based upon the evidence. If you had attended the trial and could expound on the evidentiary presentation, then I would certainly be inclined to cut you some slack. However, since I have no reason to believe either of you were in attendance, I must admit I find it perplexing that the two of you can make your assertions without the benefit of what was before the judge and jury.

    Will the case be appealed? Probably, since Sears has the resources to do so and in the past has shown not the slightest hesitancy to pursue appeals (even in cases where its likelihood of success was virtually nil). Will the case be overturned? Probably not, but then again stranger things have happened in other litigation.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Dr. Kopp E. Wright, Dec 3rd, 2008 @ 6:03pm

    Nick Nack Patty Wack.....

    ...Give this case a bone....

    Bonehead defense.....big boner to begin with....

    I bet both parties WISH they wouldn't have messed around with this one....
    You can't own copy rights on things that occur in nature --otherwise, That TREE is my design !!!!

     

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  48.  
    identicon
    mobiGeek, Dec 3rd, 2008 @ 8:41pm

    Re: Re: Re: Re: Re: Greedy Sears...

    What other definition of "innovation" are you thinking about?

    Innovation is the process of (successfully) bringing a product to market and either satisfying an existing demand or creating new demand.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Willton, Dec 3rd, 2008 @ 8:48pm

    Re: Re: Re: Re:

    Huh huh, do ya huh huh? Please calm down.

    From Sears' motion to dismiss, page 14:


    What a surprise: the Sears advocate is saying that they two are not similar! Gosh, I would have never expected the party's lawyer to opine on the facts in ways that favor his client.

    Sorry, but I'm more willing to believe the jury on this one. After all, the people on that jury were in the best position to determine whether the two wishbones were substantially similar or not: they saw the two items at trial, and they are the type of people that would actually buy this stuff. Unless you can show me the actual wishbones or representations thereof, the self-serving testimony of Sears's attorney holds no water.

     

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  50.  
    identicon
    EmJay, Dec 4th, 2008 @ 12:04am

    Thanks for posting this. But......

    Hi Mike,
    Thanks for posting this and starting a discussion. I did not had any malicious intentions when I asked techdirt to post this. So your "snide" adjective was unnecessary. I am a regular reader of this website and have often posted (mostly anonymously). I cannot comprehend why you used that adjective anyways.

    Coming to the topic. Your points against granting copyright:
    1. It is available in nature: Really? Plastic wishbone?
    2. Second, the wishbones that Sears ordered were in different colors and sizes than the ones supplied by the original company: So? It is still the copy of original product!

    I have never had a turkey dinner in my life. So I agree with the absurdity of the product. But after this company pitched their product to Sears, Sears did order them from another company. This shows that the product is NOT obvious (if it was then why didn't created them before and made profit out of it as Sears did), and useful (for "some" people. Not for you and me. But somebody).

    In previous discussions you have often mentioned that you are not against patents and copyrights, but oppose the current system. I am still wondering if any patent or copyright seems right to you!

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    eleete, Dec 4th, 2008 @ 1:41am

    Re: Re: Re:

    Really? Was it really different? Do we have examples of these wishbones to make an honest comparison? Or are you just making an assumption based on Mike's characterization of the case, which has no support in the articles he linked?

    According to you we should assume that the wishbones were identical and the same used by the 'inventor'. Yet in the article it does mention difference in shape, size and colors. I'm sure the shortage of turkeys this year points to only one possible conclusion to you, yet others can realize that a mold of a wishbone can be had quite easily. It is the expression that is covered by copyright, not the concept or idea. By that test, unless they copied the mold directly, Sears had every right to mold something from nature and reproduce it.

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    Willton, Dec 4th, 2008 @ 6:53am

    Re: Re: Re: Re:

    According to you we should assume that the wishbones were identical and the same used by the 'inventor'. Yet in the article it does mention difference in shape, size and colors. I'm sure the shortage of turkeys this year points to only one possible conclusion to you, yet others can realize that a mold of a wishbone can be had quite easily. It is the expression that is covered by copyright, not the concept or idea. By that test, unless they copied the mold directly, Sears had every right to mold something from nature and reproduce it.

    That's not the test for infringement. The test for infringement is substantial similarity. If the two wishbones are substantially similar in look and feel, and the alleged infringer had access to the copyrighted wishbone, then the defendant is liable for copyright infringement. That's the test, and it's the only test.

    The article does not state for a fact that there are differences between the wishbones. The article cites the lawyer of Sears for that information, which is colored to slant the facts in his client's favor. I prefer to listen to someone who does not have an axe to grind.

    According to me, we should listen to the jury on this issue, as they were the ones tasked with finding the facts, and they had access to all of the evidence available. So, unless you have some evidence that shows that the jury was clearly in error, I suggest respecting the jury verdict.

    Sears certainly does have every right to take something from nature and attempt to reproduce it. What they cannot do is make wholesale copies of another's artistic expression of that something from nature and claim that they are free from liability.

    By the way, you have no business lecturing me on the basics of the law of copyright. I can assure you that I've been studying it for far longer and in much greater detail than you.

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    Anonymous Coward, Dec 4th, 2008 @ 9:13am

    Re: Thanks for posting this. But......

    I am still wondering if any patent or copyright seems right to you!

    This question has been answered numerous times as "No".

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    The infamous Joe, Dec 4th, 2008 @ 10:07am

    Confused

    I have a few questions, I hope I'm not too late! Does this mean that only one company, from now until the end of everything can make plastic wishbones? I mean, it's a roughly Y shaped bone that some people feel the need to break. (humans are so strange!) I mean, if the color, texture and size were all different then this "thin" patent no longer applies right? It can't limit people from copying a part of a turkey, right? If I wanted to make a skeleton of a turkey for whatever reason, should I check for patents on each of the bones in a turkey first?

     

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  55.  
    identicon
    The infamous Joe, Dec 4th, 2008 @ 10:22am

    Re: Re:

    Off the top of my head: add a pleasant smell (Vanilla?) that is released when the bone is broken, and include a fortune inside the "winning" bone fragment. Anything else you need help with be sure to let me know.

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Lonnie E. Holder, Dec 4th, 2008 @ 10:37am

    Re: Confused

    No, it does not. It means that the copies of the wishbone should look different from those produced by Lucky Break. Try making a wishbone that looks more like the real thing.

     

    reply to this | link to this | view in thread ]

  57.  
    identicon
    Vincent Clement, Dec 4th, 2008 @ 5:06pm

    Not much different from a real wishbone. I'm not seeing the innovation here.

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Vincent Clement, Dec 4th, 2008 @ 5:10pm

    Re: Re:

    Add a tab that can be removed to make it easier to break one branch of the wishbone than the other - think of it as a handicap in golf.

    Improve the ability to hold the wish bone by adding ribs at the tips.

    Add electronics that light up and make nose when some one wins.

    Make a wishbone that can be reassembled using magnets.

    Shall I stop?

     

    reply to this | link to this | view in thread ]

  59.  
    icon
    Mike (profile), Dec 4th, 2008 @ 11:17pm

    Re: Thanks for posting this. But......

    Thanks for posting this and starting a discussion. I did not had any malicious intentions when I asked techdirt to post this. So your "snide" adjective was unnecessary. I am a regular reader of this website and have often posted (mostly anonymously). I cannot comprehend why you used that adjective anyways.

    Hi EmJay. You didn't "ask" us to post it. You submitted it with the following message: "I am sure you wouldnt publish this because it is a patent success story. Anyways."

    That certainly reads pretty snide to me. You assumed we wouldn't post it, and tried to rub that in our face.

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    Anonymous Coward, Dec 5th, 2008 @ 8:17am

    Re: Re: Thanks for posting this. But......

    Since it appears that the communication was contained in a private email, was it really necessary to pronounce to the world what you believe was the party's intent?

     

    reply to this | link to this | view in thread ]


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