June 16, 2005
Of Copyrights and Cakes
BoingBoing posts Clay Shirky's photo of the IP-maximalist warning from his local bakery.
What College Bakery is saying with that sign is "The risk of being sued is so high that we'll give up on helping paying customers create their own cakes." This is Trusted Computing for frosting.
It's amazing to see signs like this. Equally amazing, though, are the comments posted in the boingBoing thread: lawyers write that IP requires companies to "police" their property or lose it; non-lawyers argue that everything other than a direct copy is non-infringing. Neither is true: copyright is never lost by non-enforcement, and trademark demands policing only against confusing designations of source. Non-identical copies can still be derivative works -- either infringing or fair use as the case may be. But at the end of the day, no one's rights are threatened by "unauthorized" cake decorating. As my colleague Jason notes, the whole discussion shows how polarized the "intellectual property" debates have become -- and how far out of touch with ordinary people's expectations.
Posted by Wendy at June 16, 2005 04:37 PM
copyright is never lost by non-enforcement
What about estoppel? If a copyright holder knows about some (possibly) infringing activity and does nothing for a while, doesn't that stop the copyright holder from taking this to court at a later date?
BoingBoing is to be thanked for bringing this issue back to public attention. But it isn't a new matter. A December 29, 1997 article in Fortune, "Stop Copying that Mickey or We'll Shoot" (v. 136,#12,page 38) discusses some major rightsholders' cake-strategies.
From the article:
"Some years ago...United Media retained Baker & Hostetler, the giant Cleveland law firm, to launch an undercover operation to crack down on rogue cake decorators. Agents posing as moms and dads visited bakeries and ordered up various delights decorated with United's characters, which include Marmaduke and Charlie Brown. When the illicitly decorated goods were ready, the undercover buyers paid and took them outside, where they snapped photos for evidence, then returned to slap the offending bakery with legal papers. (Whether they then ate the evidence is a question that has been lost to history.)"
Well, really there should be a clear distinction between some poor baker making a Marmaduke likeness and some counterfeiter sitting in Shanghai copying Marmaduke DVD's. The lawyers who sued the poor baker are probably out of work clowns.
I'm reminded of an old story about Microsoft. It appears that Microsoft deliberately made its software easy to copy and distribute illegally.
The technology to protect software and CD's from copying has been available since the early 90's and indeed was and is used by IBM/Sun/Oracle etc. Their products are tough to replicate/copy and therefore totally pointless and useless software. For everyone except the corporates because only they could afford their high prices.
In fact its well known that Oracle and Siebel make pretty crappy products. The only reason they sell is due to their marketing efforts and the general incestuous tendency amongst corporates to buy products from big companies.
Microsoft though thought otherwise and made it easy to reuse/reinstall/copy their products and that is the only reason Windows has became such a "popular" operating system.
now there is the internet. and i really appreciate people like you who take their chance in such an excellent way to give an impression on certain topics. thanks for having me here.
Bäcker sind Raubkopierer
Excerpt: Ein weiterer Fall aus der Reihe "Wo Geistige Monopolrechte frei drehen": Bäckereien in den USA beginnen nun, Ängste zu entwickeln, sie könnten wegen ihren Kuchen verklagt werden. Nicht, dass sie jemandens Rezept klauen würden, nein: es geht um diese Kuche
Weblog: Leben am Existenzmaximum
Tracked: June 16, 2005 06:08 PM
Birthday Cakes are Nature's Way of Telling Us to Reform Copyright
Excerpt: BoingBoing passes along a story about how a bakery is now refusing to produce edible images for cakes that come from outside sources, presumably due to copyright concerns (Copyright Cops Crack Down on Cooks Over Cakes). It would be funny...
Weblog: The Importance of...
Tracked: June 16, 2005 06:47 PM
Let Them Eat Cake
Excerpt: A lovely mini-essay on copyright, culture, and cake, by our own Jason Schultz, written in response to a discussion about the same over @ BoingBoing: As an actual copyright and trademark attorney, I feel this sort of discussion highlights exactly...
Tracked: June 17, 2005 08:03 AM