@Marcus:

If the claim is illegitimate, then they’re misusing copyright law to go after a competitor, yes. But if there’s validity to the claim—for example if the Silly Bandz have particularly interesting designs that the WalMart ones are very close to—then what’s being stifled isn’t legitimate competition but inappropriate appropriation. I think it’s a non-sequitur partly because it ignores whether or not the claim is valid, which seems to be the important factor in whether or not this is actually stifling competition, or in fact promoting competition by forcing the competitor to come up with their own original designs. (Or, in the trademark line of thinking, it would be whether this promotes competition by forcing the new entity to compete on the merits of the designs rather than piggy-backing on goodwill and confusing customers.)

Btw, slight correction that obviously doesn’t go to the core of your point—copyright actually comes from the “science” side of that clause in the constitution. “Useful arts” is actually a reference to invention, justifying patent law. Not trying to snark, it’s just an interesting point on the old meanings.

@John William Nelson

As with Marcus, fair point that it’s possible this is an instance of stifling competition, and that copyright is meant to encourage competition—my use of “non sequitur” perhaps wasn’t precise.

I think that comment in the original post annoys me because of how it simply ignores issues like what you’re raising. What I take from the comment is that it’s a foregone conclusion this is stifling competition, and that it’s therefore unabashedly bad. It ignores the questions of exactly what infringements are being claimed, whether those claims have merit, and even if skipping those questions, whether this could actually promote competition in the ways I mentioned in my response to Marcus and which you alluded to in your response to me.

They could certainly have a valid trademark claim, or even a copyright claim depending on whether any of their designs do actually rise above things like simple shapes. In either case, I think the comment does lean more towards being a true non sequitur (then again, I could be misusing the term); if competition is being stifled to protect consumers (trademark) or original designs (copyright), then it’s right that competition be stifled in that way. While, yes, we could argue about whether copyright should exist at all, I don’t know that the original comment can fairly be read as bringing up such a sweeping challenge. The intent I’m inferring is simply that this one plaintiff is misusing copyright, not that copyright is wrong. Similarly, I don’t think the original comment was highlighting the interesting tension of both promoting and hindering competition through the same law; that’s an interesting topic, but not really present here.

So to both of you—I may have gone too far in labeling it a non-sequitur, it may not be entirely irrelevant. But I think it overlooks all of the genuinely interesting issues at play in order for a cheap shot about how clearly the plaintiff is being bad. Yes, we like competition, but I think the implication I’m seeing in original post that “competition is good” simply wraps the issue up also goes too far.