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. identicon
    Willton, 4 Dec 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.

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