I had another post written up and ready to go last night, when I came across this NYTimes article on a chef suing several posh New York restaurants for stealing her menu. I laughed it off, dismissed it as crazy, and went to bed.
But all morning the lunacy is driving me crazy. And I think its because is seems to me that capitalism is beginning to fight itself. And the side of capitalism I support is clearly losing. Let me explain.
First, let me share the portion of the article that raises my blood pressure:
Charles Valauskas, a lawyer in Chicago who represents a number of restaurants and chefs in intellectual property matters, called their discovery of intellectual property law “long overdue” and attributed it to greater competition as well as the high cost of opening a restaurant.
“Now the stakes are so high,” he said. “The average restaurant can be millions of dollars. If I were an investor I’d want to do something to make sure my investment is protected.”
Ms. Charles’s investment was modest. She built Pearl Oyster Bar for about $120,000 — a cost that in today’s market qualifies as an early-bird special.
She acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco. But she said she had spent many months making hundreds of small decisions about her restaurant’s look, feel and menu.
Let's ignore the obvious: that her restaurant was inspired by another. We've all read Lessig, we know most of our classics are adaptations of other classics, that the fetish of original thought is a perversion of some Romantic ideals injected with steriods. What really bothers me is Valauskas' comment that an investor [in a restaurant] would want to do something to protect an investment. I completely agree. Do you know what she can do? Cook a better lobster roll. Cook better fried clams. Just f#cking cook better.
Isn't that the spirit of capitalism? Free-market competition. We all have access (at least theoretically) to the materials, now who can put them to best use? Or, I should say, that was the spirit of capitalism, which is now lost under an "protect ip" culture that makes Big Brother look like a comforting Uncle. Again, Lessig spelled this out for us: applying 19th century [PHYSICAL] industrial property laws to a 21st century [INTELLECTUAL] service economy is going to stifle our society's ability to create and compete on a global level.
I understand that the design of a restaurant, like the design of a website, is work. And that work should be rewarded. That work should be protected from theft. But not adaptation. The contemporary disdain for any kind of remixing or sampling is becoming more and more reactionary to me. And now that I'm about to be a dad, I 'm thinking about what kind of world my son/daughter will inherit. If things continue like this, then it won't be one in which America is near the front of the first world. This post is one of my contributions (with teaching, with digital activism) to changing it. So, if an adult Thomas Edward or Rowan Margaret happens to find this post, daddy did what he could, which wasn't much.
Sigh. At least I got that off my chest (catharsis is good).