Does anyone own the rectangle? Should anyone own the rectangle?
These questions may sound absurd, but they’re at the heart of U.S. patent law’s Battle of the Titans: Apple vs. Samsung.
On Aug. 24, a San Jose jury awarded Apple Inc. a whopping $1.05 billion in damages. Apple had accused Samsung of copying its intellectual property, including its very broad design patents for rectangular “electronic devices.” And Apple wants to use those patents to stop its competitor from selling items like the new (rectangular) Galaxy tablet and (rectangular) Android-based smartphones.
Now, you may be thinking that a lot of devices in your house are rectangular. Perhaps you’re even reading one now. Televisions, laptop screens, Amazon’s Kindle. Even the Ur-reading device — paper — is rectangular.
Apple, in designing the iPad and iPhone, created its version of a rectangular reading platform. Yet now Apple has succeeded in punishing Samsung for much the same thing: copying a rectangular design. And this highlights a central issue in today’s innovation-based economy. What is the proper balance between competition and copying?
Intellectual property law is based on the notion that copying is bad for creativity. It is usually cheaper to copy something than create something wholly new. If innovators are not protected against imitation, they will not invest in more innovation. At least that’s how the story goes.
The real world, however, tells a different story. Imitation is at the center of an enormous amount of innovation. Rules against copying are sometimes necessary. But in many cases, they serve to slow down innovation. Copying, in short, is often central to creativity.
How can copying be beneficial? Because it can enable as well as inhibit innovation. When we think of innovation, we usually picture a lonely genius toiling away until he or she finally has an “aha!” moment. In fact, innovation is often an incremental, collective and competitive process. And the ability to build on existing creative work — to tweak and refine it — is critical to the creation of new and better things.
Once we look, we see examples all around us. Thomas Edison’s light bulb imitated elements from a dozen earlier bulbs. Shakespeare’s “Romeo and Juliet” borrowed from earlier writers, and “West Side Story” in turn drew heavily from Shakespeare. This kind of copying and tweaking often leads to more choice in the marketplace — many variations on a theme — and more competition, which is good for consumers. Copying can also drive the process of invention, as competitors strive to stay ahead. And copying can serve as a powerful form of advertising for originators, one that carries weight because it is authentic. Copying may even expand a market by creating a trend.
We can see this dynamic best by looking at industries in which copying is legal, where our intellectual property laws do not reach. A great example is cuisine.
Surprisingly, chefs have almost no rights in their creations. Recipes can be legally copied by anyone, including a competitor. It happens all the time. Molten chocolate cake; miso-glazed black cod — these dishes and many more have been widely knocked off.
The world of cuisine nonetheless remains highly creative, and many great chefs believe openness, and the freedom to tweak the work of others, is what makes contemporary cuisine so vital. In their “Statement on the New Cookery,” Thomas Keller and Ferran Adria argue for “full acknowledgment” for culinary inventors but also declare their “readiness to share ideas and information.”
The same is true for the designs of typographic fonts, the look of the letters used to make printed material. There are more than a quarter million such designs, and they can be freely copied, as was the case with Arial, familiar to all Microsoft users. Arial is a knockoff of Helvetica (perhaps the only font to be the subject of a documentary). All the copying hasn’t stopped the creation of new fonts.
There are many other examples, from fashion designs to football plays to financial innovations like index funds, that exhibit this marriage of copying and creativity. These examples do not prove that copying is always a force for good. And it is not. But they do show that the relationship between imitation and innovation is more complicated than conventional wisdom suggests. Copying can be destructive. Yet copying can also be productive.
Just ask Apple. From its beginning Apple was an active copier itself.
In a 1994 interview — when Apple was a tiny minnow in comparison with the leviathan it is today — Steve Jobs invoked Picasso’s alleged dictum that “good artists copy, great artists steal.” Jobs went on to say that at Apple, “We have always been shameless about stealing great ideas.”
Jobs was right. While he has often been invoked as a visionary, he was, as Malcolm Gladwell recently described, “the greatest tweaker of his generation.” On a visit in 1979 to the Xerox research center in Palo Alto, he became fascinated with a Xerox prototype computer that used a mouse and screen icons. Jobs (and company) took ideas he’d seen at Xerox, refined them and made them central features of the Macintosh.
The freedom to copy built Apple, and gave us the great products we enjoy today.
The surprising upside of copying has implications for how we think about our increasingly ideas-based economy. Consider one more example. In the 1980s, Hollywood tried to eliminate a fearsome new copying technology — the VCR — that the industry’s chief lobbyist at the time, Jack Valenti, memorably likened to the Boston Strangler. But the home video market, with all its copying, poured many more dollars into the studios’ coffers than piracy was ever able to steal away.
Major industries can survive in the face of copying, and sometimes even thrive due to copying. Apple’s victory against Samsung does not change that. It just may make the next Apple all the less likely to launch.
Kal Raustiala and Christopher Sprigman are law professors at, respectively, UCLA and the University of Virginia. They are the authors of The Knockoff Economy: How Imitation Sparks Innovation.