Goodbye to the Fashion Commons?

Several scholars have celebrated recently over the identification of an industry — fashion design — that seems to thrive on a low-IP equilibrium.

Was the celebration premature?

More below the jump.

Slate reports that the Council of Fashion Designers of America is asking Congress to tweak the vessel hull protection provisions of the Copyright Act to embrace — fashion design.

Does the move signal error in the original analysis — that fashion isn’t characterized by a low-IP equilibrium after all? Or does it mean that the political economy of intellectual property law has finally captured the fashion industry? I think that the latter explanation is more likely than the former. Part of the difference, however, lies in the choice of perspective. To argue that there has been a low IP equilibrium requires some form of external “objective” assessment, e.g., (as Sprigman and Raustiala argue), that fashion goods are “positional goods” for both producers and consumers, around which a “negative space” of copyright can be organized. What appears to be a move away from that equilibrium might simply be wealth and power at work, or it might be the product of an internal (industry) perspective that holds that the fashion industry survives despite, not because of, low-IP conditions. Assume, in other words, that the CFDA is coming to Congress in good faith, in the belief that market conditions, internationalization, file-sharing, the demon Internet and so forth threaten to undermine its precarious existence. Are there any circumstances under which policymakers should defer to that judgment?

I think that the answer to that question is “yes,” but I have a very hard time describing what those conditions are circumstances are. Certainly, if we flipped the question around and observed the fashion industry adopting a model code for designers that expressly permitted purchasers of new designs to copy and adapt those designs when making new ones (subject, for example, to the condition the new designers do likewise), many of us, policy-makers included, would praise these forward-thinking designers and defer to their own sense of what’s best for their industry. I’m skeptical, though, of the proposition that “open = good”; “closed = bad” is sufficiently robust to explain when deference is due, and when it’s not. When do we let designers design their own markets? So far, in the technology area, the leading courts have confronted this question in the Microsoft antitrust prosecution, in Grokster, and in Trinko — and have punted, allowing technology designers to design, subject to highly unclear limits.

There are, of course, multiple ways to frame an “external” perspective, and more than one way to frame an “internal” perspective. Is there a way to capture enough of these, from both sides, to create a sensible framework that we can use to think about copyright . . . and antitrust . . . and communications . . . and networks?