Thank you for your vigorous reply. I can see that you and your interlocutors will not forgive imprecise expression, so I appreciate the chance for a challenging and productive discussion. As is usually the case with blog debates, we have so far failed to convince each other. But then, that’s not the point, is it? But maybe that’s another debate…let me return to this one.

I said: However, I strongly disagree with most comments here. I argue that copyright should extend to fashion designs because copyright’s primary function is to protect and encourage creativty (not “science” as Masnick suggests — which is rather the province of patent law).

You wrote: I’m afraid you are incorrect. If you look at the history of copyright law it was to encourage science. Patents was for “useful arts.” Yes, the language has changed quite a bit, but when the copyright clause was written copyright was only for “science.”

I disagree: No, you are confusing U.S. copyright law with copyright law. The “arts and sciences” phrasing of the founders is predated by centuries of copyright in England. Moreover, the development of U.S. law clearly has bifurcated with the protection of scientific discoveries under patent law and the protection of creative works under copyright law.

You say: It troubles me that a professor in this subject is unfamiliar with this.

I say: I was not unfamiliar, I was just expressing myself more clearly than you. But it is interesting that you feel such a need to cast aspersions on professors and lawyers. Have you had any bad encounters with these professions?

I said: There are good arguments on both sides. The best law review article supporting Masnick is Raustiala and Sprigman’s “The Piracy Paradox” while the best article on the other side is “The Law, Culture and Economics of Fashion” by Suk and Hemphill. The latter win the argument in my opinion.

You say: Raustiala and Sprigman’s analysis is excellent, and well backed up. I dismantled Suk & Hemphill’s truly problematic piece last year: http://www.techdirt.com/articles/20100309/0205138477.shtml

It’s hard to take it seriously when it gets basic economics so badly wrong. That piece assumes that any competition is bad. That’s just economically laughable. To say their argument is stronger is hard to support.

I say: You just state conclusions and never cite data. I have noticed this in your other articles as well. Where is Raustiala and Sprigman’s “well-backed” data? Could you give me a page reference at least? My impression was that Raustiala and Sprigman did NOT back their argument with economic data. Why, for example, have they not given us comparative ROI data for the American apparel sector compared with European countries? Why have you not provided links to such data?

In the US we try to cover apparel design with patent law, but it is a bad fit (sorry for the pun).

You say: You assume design needs protection. It does not.

I say: I never said that. I clearly said the opposite. Allow me to repeat: I said most fashion would never be covered even by the new copyright legislation.

I said: Consider this: Europe has long had exactly the type of copyright protection which you are criticizing. Now ask yourself: has fashion disappeared from Europe? Go there and have a look. The Europeans will look back at you, some of them may even stare at your remarkable shoes — and their judgments as to your fashion knowledge may indeed be as harsh as your own are of Professor Scafidi.

You say: No one said that fashion disappears. Why set up such a strawman? Separately, the copyright on fashion in Europe actually is very narrow (much more narrow than what you guys are pushing for) and rarely enforced. And, when it is enforced, there is growing evidence that it has harmed the fashion industry.

I say: When I said that fashion “hasn’t disappeared” from Europe I thought it was obvious that I was employing a rhetorical device to suggest that fashion was vibrant in Europe. There was obviously no argument that fashion is likely to disappear from the US due to design piracy. So, regretfully, I am afraid I will have to resort to one of your own somewhat snide phrases. You say that you are disappointed that a professor or attorney does not know all of the things that you know, and you claim to be “disturbed” by my ignorance. Yet you claim to be a writer of some sort, and yet you misunderstand even the simplest rhetorical phrases. Could we dispense with that kind of chippiness? We’ll be much more productive if we focus on the reasoning and a little bit less on your need to reinforce your ego.

I said: Now, consider the issue of frivolous litigation, which several commenters have argued would be encouraged by the new law. However the legal research clearly shows that the absence of law in the US does not prevent litigation — actually we have far more litigation in the US already than in Europe. Lacking a logical copyright law, courts are forced into “awkward” legal contortions in which they apply trade dress, unfair competition and anti-counterfeiting law to stop the worst excesses of copying(Forever 21, for example, has been sued over 50 times, and threatened with suit literally hundreds of times — flagrant scofflaws existing within the perimeter of our lax laws).

You say: *sigh* You are setting up a false dichotomy, and again assuming that the presence of lawsuits means that there’s a problem. Those lawsuits get settled or thrown out fast enough.

I say: *sigh* Don’t you get it — the frivolous litigation argument is ON YOUR SIDE, not mine? I am not “assuming that the presence of lawsuits means that there’s a problem” — I am saying EXACTLY THE OPPOSITE. This is a crucial point — Raustiala and company are complaining about the potential for increased frivolous litigation, but here you say it’s not a problem. Are you sure you know which side you’re on? Or do you agree in part with Raustiala, and disagree in part?

You say: As for Fashion 21, why do you so hate competition?

I say: Somebody got snide about the fact that you got the name wrong and that it should be Forever 21. I think we all understood that you meant Forever 21. But I do hope that the person who made that observation at least derives some unusual kind of personal gratification from making these sorts of irrelevant corrections.

You unfairly criticize Professor Scafidi for attempting to popularize a legal argument with everyday examples.

You say: No, I fairly criticize her for popularizing her argument by misleading the public with stories that have no bearing on copyright policy.

I say: No, you waste a lot of time by attacking her for using examples that you don’t find convincing, while failing to address her basic argument.

Her legal reasoning is impeccable and you do not address it: fashion designs can obviously be creative (easily as creative as vessel hulls or silicon chip designs — already protected under US law).

You say: Fashion designs are creative. Without copyright law. And the fashion industry is incredibly innovative and competitive. Without copyright law. And as any economist will tell you, putting monopolies where none are needed is BAD for the economy.

I say: YES!!! You got it! “Fashion designs are creative.” That’s exactly right! I completely agree with you! Now, how do we protect creative works in America? Waiting for your answer….

I would be pleased to continue this debate on my blog if you wish.

You say: You came here. If you want to debate, debate here.

I say: OK.

You say: What troubles me about this is that both you and Scafidi seem to argue from a position that discounts the economics, without realizing that this is entirely an economic debate. That troubles me greatly. If you don’t understand the economic impact of what you are supporting, that’s how you harm the economy. I want to keep the fashion industry vibrant. Your suggestions harm competition, limit opportunities for new designers and lead to a less innovative market. It’s bad news

I say: Why are you always so “troubled”? Can’t you disagree with people without getting troubled about it? Doesn’t this lead to you spending most of your days troubled all day long? How do you handle it? Personally, I find it kind of troubling….

Moreover: I want this argument to be economic, I want you to find data suggesting that American apparel’s long-term economic profitability is higher in the absence of clear copyright law. Can you not see that clear laws can actually prevent economically-damaging litigation? But I would also ask you, where does one find the most vibrant economic activity — in countries that strongly respect intellectual property — or in countries where piracy of all kinds is rampant?

You say: And as any economist will tell you, putting monopolies where none are needed is BAD for the economy.

I say: That is purely a tautologous statement — the whole point is whether they are needed or not. That’s like saying that surgery where none is needed is BAD — proving thereby that surgery is always bad.

You say: You say you dismantled Suk and Hemphill, but I would say that you dismantled them rather in the same fashion that Sonny Liston dismantled the young Cassius Clay — you didn’t lay a glove on them. Where is your analysis of Suk’s data showing that Forever 21 wastes more court time than H&M and Zara combined?

Finally, you say: Those lawsuits get settled or thrown out fast enough.

I say: Are you serious? Like the Wal-Mart v Samara Bros case that went to the Supreme Court?

As I said, I am quite ready to begin the debate and I am indeed looking forward to see if you have anything new or useful to add to this interesting debate. So far, in my opinion, you do not.