Modified On December 27, 2007
Daniel B. Smith, writing for the Boston Globe, has spun out a four-page article about the work of one Christopher Sprigman, a legal scholar who maintains that our recent approach to intellectual-property law has been “wrongheaded.”
The article caught our eye because Sprigman cites the example of Joe Rogan’s public flogging of Carlos Mencia (and the subsequent dissemination of the clip of the incident via YouTube)as an example of “a comedian enforcing respect for originality without resorting to legislation, lawyers, or the courts.”
“People usually talk about how the Internet destroys intellectual property,” says Sprigman. “But here the Internet enforces intellectual property. It helps to protect creativity by shaming pirates.”
We read the entire article. We advise our readers to do the same. It’s a nutshelling of the multiple sides of the ongoing debate about intellectual property (IP), copyright protection and the role of government in the creation and enforcement of legislation governing same.
Smith says that Sprigman, who, with UCLA prof Kal Raustiala co-authored the groundbreaking 2006 paper “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design,” are members of the “free culture movement” and the “Copy Left”– “a diverse group of professors, lawyers, and activists that believes the expansion of intellectual-property rights is restricting the free flow of ideas, diminishing the nation’s creativity, and flouting the explicit intentions of the Founding Fathers.” (Notice anyone missing from the diverse group? If you answered “artists,” you win a prize!)
Sprigman, Raustalia and other like-minded folks have come up with the interesting concept of “negative spaces.” These are “industries that receive little to no legal protection for their ideas or products, yet that continue to innovate, often at a rapid clip.” To bolster their argument, they cite professional magicians, creators of haute cuisine and high fashion as such negative space industries. And they most recently have advanced the argument that standup comedy is one such negative space.
And, in the above example, they cite the Rogan-Mencia brawl as proof that standup comedy continues to thrive without legal protection. We are, to say the least, skeptical of Sprigman and Raustalia’s claims.
Did Rogan in fact enforce respect for originality? Did he really use the internet to enforce intellectual property? Can it honestly be said that Rogan protected creativity or shamed any pirates by doing what he did? We contend that he failed on all counts.
Does this mean that we think the courts should intervene? Certainly not. We think Rogan did exactly what a comic should do. (And he did what comics have often done– direct confrontation with the offending party, one-to-one policing– a time-honored tradition among standup comics.)
What we take issue with is the contention that standup is the perfect business to use as an example in their quest to provide proof of their negative space concept.
The article contains a few more rather tenuous (if not outright erroneous) conclusions or assumptions about standup comedy too numerous to mention here.
Perhaps the actual paper that Sprigman published clarifies matters, but, from what we’ve read in the Globe article, he might pick a better industry with which to effect a loosening of copyright control or the thwarting of further copyright extensions by lawmakers.
At one point, the authors come dangerously close to offering what we call around here the “Doritos Defense” when they excuse the rampant copying of designer dresses– Don’t worry, we’ll make more! (How many times have we heard joke thievery minimized with the advice, “Let it go! Just write more material!” Indeed, often we’ve heard the victim say, “I don’t let it bother me… I can always write more material!”)
What is their game exactly? A clue might be provided by the title of a “manifesto” written by Stanford law prof Lawrence Lessig: “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity”
It would appear that Lessig and other Copy Leftists are using magicians, fashion designers, chefs and standup comics as pawns in their game. Their ham-handed (and wildly inaccurate) depictions of the inner workings of these various milieux are being used as ammunition as they make their case against Big Media (Time Warner, UMG, Fox, Comcast, Verizon, Disney, etc.).
Their past attempts at turfing copyright legislation have been failures. We don’t see this newest tack as having any more success than previous ones.