The Knockoff Economy Read Free Page B

churning out fresh material, not rehashing your greatest hits. The fact that copyright is essentially unavailable to comedians has not led to a decline in the invention of new jokes and routines. Instead, comedy is more pervasive than ever, with a flourishing world of comedy clubs and bars and even Comedy Central on cable television, featuring many stand-up acts. How is it that comedians have managed, without using the law, to reconcile creativity with copying?
F OOTBALL
    When football started, it was a brutal game of straight-ahead running plays—the slow grind of “three yards and a cloud of dust.” The resultsweren’t always pretty, and indeed they were sometimes disastrous in an age when players wore little protection. In the 1905 college season, 18 players were killed and more than 150 badly injured. After viewing a photo of a mutilated player, President Theodore Roosevelt demanded change in the rules of the game. Football responded by innovating: teams introduced the forward pass into their offensive strategies.
    The pass was thought to be less dangerous to players than the run, but some wondered whether it would ever count for much. A
New York Times
writer said, “There has been no team that has proved that the forward pass is anything but a doubtful, dangerous play to be used only in the last extremity.” 11 Yet the pass not only caught on, it became, for many teams, the first tenet of their offensive doctrine. Passing changed football forever. Size mattered less; speed, smarts, and strategy much more. The pass added a range of previously unimaginable complexities to the offense, which demanded new defensive countermeasures. The result has been a continuous wave of innovation. And a just-as-continuous wave of copying.
    Consider the “No Huddle Offense.” In 1989, Sam Wyche, then coach of the Cincinnati Bengals, had the seemingly crazy idea of employing a “hurry-up” offense, typically used in a game’s waning minutes, during the entire game. The offense became known as the “No Huddle,” and it worked exactly as it sounds—Wyche’s smaller and well-conditioned Bengals ran a very quick series of pre-scripted plays without huddles, all with the object of confusing and tiring the larger, less mobile players on the opposing defense. The strategy worked brilliantly and provoked anger among opposing coaches. In the days leading up to a playoff game against the Buffalo Bills, Bills coach Marv Levy angrily asserted that Wyche’s innovation was equivalent to cheating. But anger soon gave way to imitation. The following season, Levy’s Bills knocked off the no-huddle offense and went on to play in four straight Super Bowls.
    So what does this mean? There is a lot of innovation in football. But there has been virtually no attempt to copyright or patent any of the innovations that have periodically roiled the game. There are some serious legal hurdles, but since American law already protects “choreographic works,” copyrighting a football play is not as far-fetched as it may seem. Patent protection extends to new and useful “systems,” and a novel football offense might be characterized this way. It might also be characterized as a “method of doing business”—a category of inventions which is also patentable (with somerestrictions) under U.S. law. In short, IP law might conceivably step in to prevent copying, but it never has. So why do football coaches continue to innovate, even when they know that their rivals will study their innovations and imitate them?
    Fashion, food, football, and comedy are all industries in which creativity is vibrant and the patent and copyright laws are either absent or irrelevant. There are many similar examples, as this book will demonstrate. Few have been studied as a source of insights about innovation. The best known involves open-source software. The entire purpose of open source is to keep code “open”—to allow others freely to copy and modify what previous