Sleepycatz

Security through absurd obsurity?

Those who know me know I have a problems with the notion of security through obscurity — the idea that one can achieve some measure of real security by hiding the item or knowledge which needs to be protected. As a security measure, obscurity has been around since man first hid from a predator. It has never been a consistently successful strategy. The pilfered tombs of the Pharaohs illustrate that no matter how cleaver or determined one is to hide something away, an equally cleaver thief will eventually find the treasure. That the most guarded secrets of the cold war usually flowed between adversaries in a matter of weeks speaks to the ineffectiveness of obscurity when confronted with a determined and resourceful foe. Nonetheless, obscurity remains with us as a natural response to threatening situations. The desire to protect ourselves, or our possessions, immediately invokes the evolutionary response to hide from threats.

I was fascinated to read a recent NY Times article on the obscurity devices of Aya Tsukioka. Ms. Tsukioka has created camouflaging fashions for Japan’s urban dwelling population. Though violent street crime is down in Japan sensationalist news reports have created an air of fear among city dwellers. Among Ms. Tsukioka’s inventions is a skirt which allows the wearer to disguise oneself as a vending machine:

The wearer hides behind the sheet, printed with an actual-size photo of a vending machine. Ms. Tsukioka’s clothing is still in development, but she already has several versions, including one that unfolds from a kimono and a deluxe model with four sides for more complete camouflaging.

Other creations by Ms. Tsukioka include a purse which can be disguised as a manhole cover — presumably to be thrown into the middle of the street when the carrier feels threatened — and backpack which allows a child to disguise her/himself as a fire hydrant.

There is something more then a bit disturbing with the idea that women and children should need to take on the appearance of common inanimate urban objects in order to protect themselves. Certainly it can be argued that historically these two groups have been objectified in this manner for thousands of years, and the need/desire to obscure the body in this manner is a reflection of a conservative cultural mindset. Fear, in general, tends to evoke the most primitive of responses in the human mind. The response suggested by Ms. Tsukioka’s creations is that we need to hide our humanity until the fear passes. I couldn’t disagree more.

Fashion Police

At a time when people are beginning to realize the massive abuse and problems caused by the current intellectual property laws, in steps congress to expand and further confuse the system. Just prior to his summer vacation, Sen. Schumer (NY) introduced the Design Piracy Prohibition Act of 2007. Like pretty much every bill introduced in congress for the last 10 years, the name of the act has almost nothing to do with its function, and the small amount of media coverage of this bill has been erroneous at best. Of course, getting the media to intelligently cover copyright, or Internet issues for that matter, is like teaching  cats to play chess: they’ll knock around the pieces to amuse themselves, but will never understand the game.

Though billed as a piracy protection act, the bill goes far beyond that. Fashion designers are currently protected from knockoffs and piracy through trademark enforcement of their brands. One cannot, for instance, sell a leather handbag labeled as Coach if it is not made by Coach. Trademark enforcement is the bread and butter of litigation in the fashion world. Additionally, a designer may copyright a fabric pattern design under the existing classifications. This requires anyone wishing to use the pattern in their clothes to obtain a license from the copyright holder.

Schumer’s bill adds fashion design to existing copyright laws as an area of protection. This is a bureaucratic nightmare and a litigious boondoggle in the making. The proposed law defines the following as items protected by copyright:

A ‘fashion design’ is the appearance as a whole of an article of apparel, including its ornamentation.

The term ‘design’ includes fashion design, except to the extent expressly limited to the design of a vessel.

The term ‘apparel’ means:

an article of men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear; handbags, purses, and tote bags; belts; and eyeglass frames.’.

If this seems a bit ambiguous, you’re right. There is nothing denoting what constitutes an original design or the extent to which it is protected. For instance, if a designer attempts to copyright a pair of green pants with red pockets can they sue another designer who sells a pair of blue pants with red pockets? For that matter, does simply having a different colored pocket allow an item to protection, or has the idea been in circulation long enough it is public domain? Finally, how may ways are there to design a pair of pants, or a handbag, or a dress, or eyeglasses which does not derive from previous works? Unfortunately, questions like these an many many other will have to be answered through lengthy, complicated, litigation if the bill becomes law.

Finally, the fashion industry has survived and even thrived with a lack of intellectual property controls until now. As Kal Raustiala and Chris Sprigman pointed out last year in their paper “The Piracy Paradox: Innovation and Intellectual Property in Fashion Design,” the lack of intellectual property protection has actually forced the fashion industry to be more innovative and competitive then those industries with strong protections.

In recent years copyright law has become a cesspool of highhanded litigation and threats. The protection of intellectual property is suppose to allow for fair compensation to creators in order to encourage innovation. However, the opposite is becoming the norm. Innovation is being stifled by copyright litigation and confusion. To add, as Sen. Schumer wishes, fashion design to this already deepening pool is simply to add further litigation, and stifle competition and innovation. This bill will not give additional protection to designers from piracy, but simply add costs and create havoc in a marketplace is actually working quite well.