Recently, several tech blogs made note of the fact that some of the founding fathers were skeptical of intellectual property. What is so compelling about these quotes that tech blogs would turn their attention back two hundred years? A good guess is the sharp contrast of the founders' views with the current atmosphere surrounding IP, in which accomplished authors must be reminded that intellectual property is different than real property, and (presumably) well-educated lawyers for major corporations assert that intellectual property crime is a more pressing problem than actual theft, fraud, or burglary. The same attitude is visible in the current effort to extend IP rights to fashion, which this blog has discussed before. As the quotes above make clear, that someone could “own” the idea of a polka dot shirt with a flower would not have jived with the founders.
Such meme-hoarding avarice even seems to be rubbing off on the small business community. Consider this article from the New York Times, about a restaurant entrepreneur who is suing her former chef for opening a restaurant that is similar to her's. The article does not reveal precisely how similar the two restaurants are, so the suit may not be baseless – there are some rules against copying the appearance of a restaurant, and they are in place for good reasons. However, Rebecca Charles, the potentially wronged restaurateur in the article, isn't mad for any of those reasons. Instead, her ire is due to the same misguided view that has infected the big content industry: that giving someone ownership in an idea is not a drastic step to be taken cautiously, and only when necessary. Rather, Ms. Charles seems to think that such ownership rights reflect a natural entitlement due to the first person with an idea to throw their hands up and say, credibly or not, “I thought of it first!”
If the suit in the article is to succeed, it will be because it's a violation of “trade dress.” The law of trade dress, roughly, protects the arbitrary bundle of choices that were made affecting a product's appearance (“let's have green drapes and yellow carpet!”), but only to the extent that a duplication of that bundle might confuse consumers into thinking that two unrelated products are affiliated. Now, take a look at the plaintiff's complaints from the article:
[S]he said she had spent many months making hundreds of small decisions about her restaurant's look, feel and menu.
Those decisions made the place her own, she said, and were colored by her history. The paint scheme, for instance, was meant to evoke the seascape along the Maine coast where she spent summers as a girl.
“My restaurant is a personal reflection of me, my experience, my family,” she said. “That restaurant is me.”
Mr. McFarland, she said, had unfairly profited from all the thought she had put into building Pearl. “To have that handed to you, so you don't have to make those decisions — it's unfair,” she said.
There's no mention that consumers may be confused, or even that Ms. Charles will suffer any harm. Instead, Ms. Charles seems to think she ought to have exclusive ownership of an idea simply because she's thought of it. Like one who “mixes their labor the land,” Ms. Charles believes that she's mixed her labor with an idea (and what labor it must have been – it's surely a grueling mental task to conclude that a seascape theme is good for an oyster bar,) and therefore it should be hers and hers alone. The fallacy in this way of thinking was elucidated by Thomas Jefferson, as mentioned in the first line of this post:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.
It would be hard to put it better than Jefferson did, but since he was kind enough to share his idea, there's no need.