Techdirt Reading List: The Knockoff Economy: How Imitation Sparks Innovation

from the imitation-is-more-than-just-flattery dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.


This week, we've got the wonderful book The Knockoff Economy: How Imitation Sparks Innovation by law professors Kal Raustiala and Chris Sprigman. We have written about the book before and have even hosted some excerpts from the book, but it's a really great and important read. We mentioned it earlier this week in our story about the attempts to lock up pot with intellectual property protections -- because that story reflected much of what's in the Knockoff Economy.

The key point of the book is to highlight that the very premise behind many calls for intellectual property protection doesn't stand up to much scrutiny. Defenders of the system usually insist that copyrights and patents are necessary for creating the incentives to create or to innovate in a market. Yet, Raustiala and Sprigman carefully detail a bunch of different industries that don't have intellectual property protection, and over and over again, they see the same thing: more competition and more innovation, rather than less. For many years, we've highlighted the fact that it is frequently competition that drives innovation, yet so much of our public policy is based on the fallacy that it's monopoly rights that drive innovation. Thus, the Knockoff Economy is a really useful work in highlighting that perhaps the very premise that so much intellectual property protection is based on is wrong.

That's not to say, necessarily, that copyrights or patents have no place (though I know some of you do believe that) at all in modern society. But, at the very least, we should be looking at what is the actual impact of those laws, and are they really increasing innovation or doing something else entirely.
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Filed Under: imitation, innovation, knockoff economy, reading list, techdirt reading list


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  1. identicon
    Anonymous Coward, 19 Nov 2015 @ 1:26pm

    quibble

    The very nature of IP is to stifle any and all competition to PREVENT knockoffs, simulacrum, or improvements on original design so that the original IP holders can bilk as much out of the market as they can for bringing something new to market.

    But this is good AS LONG AS THEY ARE SHORT AND SPECIFIC!!! Which is no longer the case.

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

  2. identicon
    Anonymous Coward, 19 Nov 2015 @ 4:00pm

    Re: quibble

    Actually, your statement is, at best, imprecise with respect to patents. One of the oft-mentioned benefits of patents is that it drives alternative solutions that are non-infringing, thus creating parallel approaches that might not otherwise exist.

    As an example, the Wright brothers pursued patents on various airplane features for years. By the time the patents were validated, the industry had moved past their designs with different, non-infringing designs. One way to drive a completely different approach is to patent an approach and make it expensive to license it. People will come up with alternatives.

    As another, more recent example, virtually all mobile communication manufacturers are trying to come up with as many improvements on their competitor's technology as they possibly can to minimize the risk of getting sued for infringement. A similar thing is happening in the appliance industry.

    And while the length of patents has grown, it has been 20 years from the date of filing for some time now. Subtract the time from filing to allowance, and you have roughly 17 years of life. The only question would be whether you consider 17 years to be short.

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

  3. identicon
    Anonymous Coward, 19 Nov 2015 @ 10:51pm

    Re: Re: quibble

    "One of the oft-mentioned benefits of patents is that it drives alternative solutions"

    That's not a benefit. If those 'alternative solutions' provide advantages over the existing ones the drive to find them is natural and not needing of any patents. What the patent ends up doing is forcing people into a less efficient and effective alternative solution merely to avoid infringement. This is socially harmful. Furthermore patents may deter people from building upon something that is covered by a patent.

    "the Wright brothers pursued patents on various airplane features for years."

    Which set back the airline industry in the United States by many years.

    "virtually all mobile communication manufacturers are trying to come up with as many improvements on their competitor's technology as they possibly can to minimize the risk of getting sued for infringement. A similar thing is happening in the appliance industry."

    These are more examples of how patents are socially harmful. The drive to come up with improvements isn't driven by patents it's driven by nature. People want to always improve things because a better solution to a problem makes their lives easier and makes businesses more efficient and allows them to offer better products than their competitors or to keep pace with their competitors. To attribute this to patents is silly. However what Techidrt and many others have highlighted over and over are examples of how patents hinder technology by allowing someone to get a general patent on something that's a natural technological progression and prevent others from using it. Now others must find inefficient ways around the obvious and they are deterred from building upon such a technology at least until the patent runs out. The idea that the first person to get a patent on something is the only person that's going to come up with said idea within the next 20 years is absurd at best and based on a dishonest premise in all likelihood. It's a pretext put forth by monopolists that simply want monopolies on the obvious so that they can use them to lock everyone out. The mobile phone and tablet arenas are good examples of how patents have hindered progress.

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

  4. identicon
    Anonymous Coward, 19 Nov 2015 @ 11:05pm

    Re: Re: Re: quibble

    Not saying that all patents are bad but for things like Tech I think 20 years is absurdly long.

    Longer patents (not sure about 20 years still, if you want to go with the argument that patents provide economic incentive to invest into something you must consider that the present value of a potential return in 20 years has a high probability of being smaller than the investment made and most investors expect their return to be well before 20 years to even consider it) might be more justified with things like pharmaceuticals where years and years of testing maybe needed to ensure the safety of something.

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

  5. identicon
    Anonymous Coward, 20 Nov 2015 @ 4:39am

    Re: Re: Re: Re: quibble

    might be more justified with things like pharmaceuticals where years and years of testing maybe needed to ensure the safety of something.


    If they actually did years and years of testing.

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

  6. identicon
    Anonymous Coward, 20 Nov 2015 @ 5:13am

    The inverse is not also true

    It is worth noting that I.P. law only attaches to new art, not any kind of merit in that art, and that it doesn't apply in any capacity in the defense of the intrinsic value in standardization.

    Compatibility is an idea that the law explicitly rejects as a protectable right. "new art" is indistinguishable from malicious proprieterization as far as the law is concerned.

    IOW protocols generally can't be patented because their entire purpose is to be standardized, but standardization has no value before the law because to constrain development to any kind of standard would constrain new art.

    EEE is based on this inversion.

    It really makes policing combatibility impossible. Some will say that is the price you pay, and I don't necessarily have a problem with that, so much as WHO the price is paid to and why.

    I.P. law as it stands, does not protect innovation, it protects market share. 3 things the USPTO could do to join the current century:

    1. Implement a lower registration fee for patent lefted I.P.

    2. Upgrade from tiff, (you crusty old trolls)

    3. Investigate and arrest some of the institutions doing systematized MIM attacks against the USPTO and it's clients, of which there are DOZENS, including a number of large corporations.

    Part of this is really up to the open source community. There needs to be some sort of product license similar to GNU that is oriented specifically towards patenting "encoding systems", and licensing ONLY in the event that a compatability is maintained. Much like the java license that inspired a certain lawsuit that changed the course of American history.

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

  7. identicon
    Anonymous Coward, 20 Nov 2015 @ 6:40am

    Re: Re: Re: Re: Re: quibble

    I think the FDA requires a minimum number of years of testing. IIRC it was like three or five years(?)

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

  8. identicon
    Anonymous Coward, 20 Nov 2015 @ 9:20am

    Re: The inverse is not also true

    "It is worth noting that I.P. law only attaches to new art"

    A lot of things that ideally shouldn't get any protection often do end up getting protection.

    It's also worth mentioning that IP is predominantly lobbied for by business interests and not the public and so this should raise skepticism over the interests it's designed to serve.

    "Compatibility is an idea that the law explicitly rejects as a protectable right."

    You seem to be making things up. Apple devices, for instance, have proprietary connectors which prevents others from making compatible ones. In fact a lot of IP is exactly about allowing companies to make things proprietary and to lock out competitors from making anything compatible with them. Apple has had a long history of this.

    "1. Implement a lower registration fee for patent lefted I.P."

    The USPTO already has enough problems with approving very low quality patents that should never have been approved. To lower the fee will simply encourage more companies to apply for even more frivolous patents further bombarding the USPTO with more patents that they don't have the resources or time to fully investigate and it would provide the USPTO with even less funds that they can use to hire someone to spend more time necessary to fully investigate a patent before approving it.

    "Investigate and arrest some of the institutions doing systematized MIM attacks against the USPTO and it's clients, of which there are DOZENS, including a number of large corporations."

    [citation needed]

    This seems like more unsourced imaginary nonsense that you're making up that seems in line with the crazy Google conspiracy theories that the shills around here come up with when they blame Google for everything possible and claim that Google is secretly paying Techdirt. The source is that you had a dream.

    and exactly how are these corporations getting in between the USPTO and its 'clients'. and since when does the USPTO have 'clients'. Its only 'clients' should be the public interest not those applying for patents. Your post seems to be an admission that the USPTO's purpose is to serve its clients that pay it to process patents and not the public. The USPTO is not a business and these posts kinda show the type of mentality that IP defenders tend to have. The government shouldn't be about the public but about the client businesses that pay the government for special privileges.

    So do explain how these corporations are allegedly getting in between the USPTO and their 'clients'. Because the way it works (oversimplifying) is you have

    web server
    ISP (well, there is more in the middle but to simplify)
    Client

    So for someone to get in between they would need some access in between. Are you suggesting the ISP, in the middle, is acquiring that access? Or maybe the NSA? Or are all of these corporations that you claim are getting in between the two secretly working with ISPs and the NSA.

    and does the USPTO really have bad security on their website that their website isn't signed (uhm ... I just visited their website and I don't see an https). Perhaps the solution then is for the USPTO to implement some more security to their website to prevent MITM attacks.

    Regardless all of this Internet and security stuff is way past your coherency (given how incoherent your sentences are I can't reasonably expect you to be the type of person with enough coherency to understand this stuff) and you are simply making things up out of nowhere.

    Or are you complaining that companies either petition the USPTO over bad patents or seek to get them overturned in court and that should be illegal and they should be arrested for that because by petitioning the USPTO over bad patents or getting them overturned in court they are getting in between the USPTO and its 'clients' (it's hard to tell given how poorly you express yourself. Typical IP defender, too lazy to make their intent clear because it requires too much work and IP defenders want everything for free which is what IP laws are based upon).

    Your post seems mostly too incoherent to really respond to but at least these are some points worth mentioning.

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

  9. identicon
    Anonymous Coward, 22 Nov 2015 @ 7:09pm

    Re: Re: The inverse is not also true

    "You seem to be making things up.",

    The area of the problem is convoluted. But essentially it boils down to linguistics scope. Patents are proprietary. Protocols typically only become standards if they are non proprietary. The intrinsic value of the standard, is therefore exclusive to the patent process. if A != B then CA != CB unless C = 0.

    "Apple devices, for instance, have proprietary connectors which prevents others from making compatible ones."

    This is exactly my point. The shape of the connector is patented, the shape is relevant ONLY because it denies compatability, not because it encourages it.

    Sony does this all the time. I actually saw them but a plastic frame over a AAA battery, just so a normal battery wouldn't fit in their hardware.

    The patented plastic bracket is exclusionary, not innovative. The value to the consumer would be HIGHER without it. And even if the AAA wasn't long out of patent, there would be no means of litigating against Sony for being confounding jerks for utterly no servicable reason.

    "The USPTO already has enough problems with approving very low quality patents that should never have been approved."

    I've read enough patents thanks. They are written to maximize infringing area, not be cohesive in any way that would support interoperability. Patents don't read like technical drafts. Because of course, the only thing the patent does is define a right to litigate for the proprietor of the patent.

    But there IS an inherent value to interoperability. And that value is not something that I.P. law recognizes. The idea is essentially that a standard, is only a standard if everybody uses it, which makes it public domain. But the value owned by the public isn't protected in any real defensible way.

    Proprieterization, is "new art" after all, like that plastic bracket on the Sony battery. What Sony is doing is EEE. And it IS destructive to the public welfare, and there are thousands upon thousands abusive cases like this. There IS an involuntary conversion of value when this happens. Most people would call it "tragedy of the commons", but it is a calculable loss, and it reflects a rather large sum in terms of delayed evolution of new markets.

    What there isn't, is any kind of law that facilitates the defense of the public domain in any way that would allow that value to be pragmatically defended in court. This can be handled by patenting and then granting compatibility restrictive licensing. But this is cost prohibitive.

    There are ways to fix that. And this is what I was suggesting.

    "The source is that you had a dream."

    Pull down some related browser plugins and tcpdump the output. Watch you packets go though China, and tell me all about my "dream" again. That is an easy example. I don't proport it to reflect any skill level. Only that it is easily reproducible.

    "web server
    ISP (well, there is more in the middle but to simplify)
    Client"

    Your missing dozens of pieces of gear there poser.

    This is one architecture, there are many.

    I am presuming that you are trying to bait me. Sufficed to say that much of what I'm talking about is actually in the patent library itself, having been submitted over the years by precisely the people you are presuming yourself to know better than I do.

    "and does the USPTO really have bad security on their website that their website isn't signed (uhm ... I just visited their website and I don't see an https)"

    Security of U.S. citizens using the USPTO are in the jurisdiction of the FBI. And it doesn't have to be federal equipment that is insecure, for American intellectual property to fall prey to espionage. But hey, your a real tech guy there, you thunk of that, right?

    "Typical IP defender, too lazy to make their intent clear because" ... "Your post seems mostly too incoherent to really respond to but at least these are some points worth mentioning."

    More bait. I don't play "I'll show you mine if". What I will say is that Socratic method isn't well suited to encapsulate this problem. And while I will concede that I do ramble a bit, the high road you presume yourself to take, doesn't seem so high from where I'm standing.

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


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