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William C. Altreuter
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Wednesday, September 12, 2007

Interesting piece at BoingBoing about how stage magicians innovate without IP law protection. I like the idea of "IP negative spaces", and I think there are probably more of them than we think about. In the comments to the post at BoingBoing someone mentioned cooking, which is more or less true (Coke's secret formula is an example cited in just about every IP class). Comedy may be another-- comics steal jokes, and collect jokes, and pay other people to write jokes, but it is the actual performance of the joke that is where the money is. I think that may be close to what goes on with magic, too.

Curiously, law is another area that is nearly copyright free-- perhaps a real world manifestation of Gödel's incompleteness theorem. In order for a system of law to function properly, it must operate transparently. Companies like Thompson-West Publishing take work that is in the public domain-- statutes and judicial decisions-- and provide indexes, annotations, and other copyright protected features in order to make the public domain material more accessible. Where it gets more interesting is in the processes of law. Lawyers and publishers have tried to copyright forms for any number of things, but with only mixed success-- in order to be commercial, such forms need to be pretty generic.

A somewhat different situation is presented in a matter a friend has been handling. A local community has imposed restrictions on outside advertising, and an outdoor advertising company has been litigating the matter-- and losing. Obviously there are significant First Amendment restrictions on this sort of regulation, but the way this local ordinance was written and enacted has made it pretty bullet-proof, at least so far. A lot of people have approached my friend and asked for his "recipe", but there is a considerable amount of work product invested in developing the approach and he is not inclined to simply hand over his file to anyone who asks. Quite sensibly, he would like to be paid for doing this sort of work for communities that want it, and sensible communities seem to think this is fair. There is a component of skill and expertise involved here, as in the example of the magicians and comedians, but there is also a sense in which anyone prepared to do the work could develop the background and expertise. It's all a matter of public record, after all, so the question becomes whether it makes economic sense to re-invent the wheel, or whether it is smarter to go to someone who knows how to do it. (There was a terrible mixed metaphor coming up fast there, but I swerved and avoided it.) In that sense the analogy to cuisine-- and to recipes-- is pretty close. I can go to a restaurant, enjoy my meal, then try to reverse-engineer it at home, but the investment in time and ingredients may still not result in the same dish if I lack the skills and experience necessary to properly sauté a trout.

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