• August 13, 2010
    Guest Post

    By Susan Scafidi, a professor at Fordham Law School and the Academic Director of the law school's Fashion Law Institute, the world's first educational center devoted to the emerging field of fashion law. In addition to her foundational articles on intellectual property and fashion design, Scafidi is the author of "Who Owns Culture?" and blogs on law and fashion at
    Intellectual property law is being re-fashioned for a new generation. After epic battles between IP owners and the free culture crowd, a sector with a large economic footprint but a slender jurisprudential silhouette has designed a mode of protection as striking as the introduction of the miniskirt in 1965. It's unmistakably modern, covers all the essentials, but makes a point of leaving quite a bit in the public domain. Call it the new minimalism - courtesy of the not-so-frivolous fashion industry.

    Perhaps it shouldn't be surprising that the industry that gave us the punch card loom, the direct ancestor of the modern computer, is on the cutting edge of development in IP. U.S. law, however, has long excluded most creative fashion designs from protection, apart from their trademarked labels and logos, even as other major fashion-producing countries have developed design rights. Europe, Japan, and India all have laws that cover fashion design; France has been protecting its celebrated Parisian couture for over a century. American fashion designers have been seeking legal recognition for at least that long, and they are finally poised to achieve it in a way that alters the contours of IP law as well.

    As the nation has transitioned from agriculture to manufacturing to ideas as its primary source of economic growth, the fashion industry has followed. Americans still grow cotton and weave denim, but today, influenced by TV shows like Project Runway, there are far more aspiring designers than tailors or seamstresses. Without IP protection, though, creative garments are easily copied by design pirates who systematically troll trade shows and red carpets looking for the most popular new designs.

    Given the speed at which information travels via the Internet, cheap, fast fashion copies can be shipped back to the United States and end up on the street before the original designer has a chance to recover her investment. Some designers even lose wholesale and retail orders after poorly made but otherwise nearly identical merchandise becomes available for sale. This is especially devastating to emerging designers, whose relatively unfamiliar logos are rarely copied along with the underlying articles of apparel, leaving them without even a trademark claim. As one young designer told me in regard to more established, logo-driven companies, "They can just sell their trademarks. We have to sell our designs."

    In actuality, the designer was only half right. The absence of design protection also leaves a loophole for trademark counterfeiters, some of whom legally import copies of distinctive merchandise without a fake logo and then add the illegal label later. Such simple subterfuge undermines the Obama administration's new strategic plan to combat counterfeits, and ultimately IP law itself.

    The bipartisan Innovative Design Protection and Piracy Prevention Act (IDPPPA) introduced by Sen. Charles E. Schumer will bring fashion design under the IP umbrella while limiting it to the shortest term of protection available under any legal system in the world, three years. It also establishes a high qualifying standard for protected designs reminiscent of patent law, but without an expensive registration requirement. Only designs that are new and original will be protected, and every other garment ever created will remain in the public domain. At the same time, the bill limits violations to substantially identical copies, a standard borrowed from trademark. As elsewhere in copyright, there are blanket exemptions for teaching and analysis; in fashion design, there's even a special home sewing exception for the clever crafter who wants to replicate the runway for her daughter's prom dress or her own wedding gown.

  • April 12, 2010
    Guest Post

    By Eduardo M. Peñalver and Sonia K. Katyal. Peñalver is a professor of law at Cornell University Law School and Katyal is a professor of law at Fordham University School of Law. They are authors of Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership.

    Every business owner dreams of enjoying a legally enforced monopoly. Fashion designers are no different. Although the brands and logos that appear on clothes are protected by trademark law, the designs of fabrics themselves are protected by copyright, and functional innovations in clothing are protectable by patent law, fashion designs themselves are legally, um, naked. For decades, designers have complained that, like painters, filmmakers, architects and authors, they are entitled to intellectual property protection to protect their creative efforts against unauthorized copying. So far, they have been unsuccessful. That hasn't stopped Senator Charles Schumer from teaming up with Harvard law professor Jeannie Suk to try, yet again, to make fashion designers' monopoly dreams come true.

    There's broad consensus that the strongest justification for awarding intellectual property protection is to spur innovation in situations where unauthorized copying could deprive innovators of the returns on their investment in the development of new products. The classic example is the drug patent, which prevents copiers from depriving pharmaceutical companies of a return on their investment by cheaply reverse-engineering a drug that cost billions of dollars to develop. But, as the drug example makes clear, creating intellectual property protection comes at a steep social cost. Providing a limited-time monopoly to innovators allows them to charge monopoly prices. While this is arguably necessary to allow innovators to recoup development costs, it also puts the protected goods out of reach of many consumers, as we've seen in the countless debates about access to HIV medicines. Intellectual property protection also generates significant litigation, as parties spend time and resources fighting over the scope of their legal rights.

    Because of its significant costs, intellectual property protection should be extended only where the gains to society are clear. The social benefits of protecting fashion innovation, however, seem like a harder case that deserves some caution. For starters, the argument that the fashion industry deserves intellectual property protection has to rest on some version of a claim that, because of copying, existing investment in fashion innovation is lower than it should be. This is a hard claim to credit without strong empirical support. The industry appears to be robust and profitable in the absence of such protections. Moreover, far from making consumers worse off, copying of fashion innovations quickly spreads them to the masses. Intellectual property protection might slow down the process, concentrating the benefits of design innovation in the hands of those who can afford to pay monopoly prices. Indeed, as Chris Sprigman and Kal Raustiala have argued, copying actually appears to drive innovation in fashion as cutting edge designers (and their wealthy customers) try to stay one step ahead of the copiers. Empirically speaking, then, legal protection for fashion may not translate into greater investment in fashion innovation on a broad scale.

  • April 6, 2010

    By Sherwin Siy, Deputy Legal Director and Kahle/Austin Promise Fellow, Public Knowledge

    The Anti Counterfeiting Trade Agreement, or ACTA, has received a fair bit of attention in the technology press and elsewhere, more so than might have been anticipated by a trade agreement. Its staunchest opponents warn that it threatens basic freedoms of speech and due process, and jeopardizes access to effective medicines around the world. Its most vehement supporters claim that without it, thousands of American jobs will succumb to the whims of pirates and counterfeiters. Academics have raised constitutional concerns about both its process and substance, while the President has offered it up as a tool to "crack down on practices that blatantly harm our businesses." At Public Knowledge, we remain gravely concerned about its potential effects on the way we access the Internet and use the media we buy.

    So what is this ACTA? A simple trade agreement? A nefarious circumvention of domestic law and legislative procedure? Something in between? And what does it actually do? The fact that such basic questions about ACTA exist and persist points to one of its most prominent and central flaws: its lack of transparency. Only the basics are offered on the U.S. Trade Representative's (USTR) website-that it is to be a "plurilateral" trade agreement between a number of countries, designed to combat the infringement of intellectual property. More recently released "fact sheets" from the USTR provide outlines for the agreement's topics of discussion, including proposals on civil and criminal enforcement, border measures, and Internet issues. (The website also features letters of endorsement for the as-yet undisclosed agreement from proponents.). Importantly, ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval.

  • March 11, 2010
    Property Outlaws
    How Squatters, Pirates and Protesters Improve the Law of Ownership
    Sonia Katyal & Eduardo M. Peñalver

    By Sonia Katyal, Professor of Law, Fordham University School of Law & Eduardo M. Peñalver, Professor of Law, Cornell University Law School

    Fifty years ago, on Monday, February 1, 1960, Ezell Blair, Jr., Franklin McCain, Joe McNeil, and David Richmond, all freshmen at the North Carolina Agricultural and Technical University, walked into the cafeteria at the Woolworth's Store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, McNeil, and Richmond were black, and Woolworth's, although not required to do so by law, followed the local "custom" of refusing to allow its black patrons to eat at its lunch counter. Though they received no service, the four men sat quietly and without incident. When the store closed at 5:30, they left. The next morning, the four young men returned, along with sixteen other students from North Carolina A&T. By Thursday morning, the ranks of the sit-in participants had swelled to over sixty. Within a month, similar sit-in protests were occurring at department stores throughout the South. The fight for civil rights would never be the same.

    What had been, as one contemporary put it, a civil rights movement dominated by lawyers working quietly in courtrooms had become a mass phenomenon. The student-led sit-ins thrust the civil rights question to the forefront of the 1960 presidential elections, and there is a direct line between the students' activism and the passage of Title II of the Civil Rights Act of 1964. That landmark law, which prohibits racial discrimination in most privately-owned businesses, radically transformed rights of private ownership in the United States and has become one of our most successful civil rights statutes.

    It's easy, in hindsight, to downplay the controversy that surrounded the students' tactics, but, at the time, the Greensboro protesters were maligned from all sides as threatening sacred rights of private property and the rule of law in pursuit of what many commentators considered to be a trivial interest in access to lunch counter service. Such criticism did not come just from conservatives and segregationists. According to one account, when Thurgood Marshall heard about the sit-ins, he proclaimed that "he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going into their stores or lunch counters and refusing to leave when ordered to do so."

    Whether the Greensboro students knew it or not, in violating property rights as they did, they tapped into a long tradition within the history of Anglo-American property law. For as long as there has been private ownership, it seems, there have been groups who have sought to challenge the prerogatives of ownership in search of a more just social order. Sometimes these movements have succeeded. More often, they have not. But the pervasive influence of these property outlaw tactics on the development of American property doctrine cannot be denied. In Property Outlaws, we explore the sit-in episode (along with scores of other examples of property lawbreaking) to try to extract broader lessons about the interaction between disobedience and ownership.

  • December 29, 2009
    Wired's David Kravets notes a "landmark" federal court decision of last week that a string of torrent Web sites are unlawful, allowing for massive copyright infringements. Wired said the Dec. 21 decision, while not unexpected, is "the first in the United in which a federal judge found that" torrent or BitTorrent Web search engines are "an unlawful avenue to free movies, music, videogames and software."

    The lawsuit was lodged by Motion Picture Association of America (MPAA), and resulted in a summary judgment ruling against,, and, all owned by Gary Fung. The plaintiffs, U.S. District Judge Stephen V. Wilson wrote, "asserted that, through his operation and promotion of the websites, Fung allows users to download infringing copies of popular movies, television shows, sound recordings, software programs, video games, and other copyrighted content free of charge. "

    Judge Wilson dismissed Fung's arguments that his sites were distinguishable from other file-sharing sites that have been shuttered for copyright infringements, such as Napster.

    The judge wrote in Columbia Pictures Industries, Inc., et al., v. Fung:

    These technological details are, at their core, indistinguishable from previous technologies. In fact, Defendants' technologies appear to improve upon the previous technologies by permitting faster downloads are large files such as movies. Such an improvement quite obviously increases the potential for copyright infringement.

    Fung told Wired that he was considering an appeal, maintaining that provisions in copyright law should protect Torrent sites that remove content when requested by rights-holders.

    [Image via the Law Office of Lisa N. Kaufman.]