Fucking With the Magic

Apple v. Samsung is a must-blog topic for a space that purports to include topics on law, technology, and society.  Others will shortly parse the somewhat chaotic jury verdict that found, in the aggregate, overwhelmingly for Apple, on both the design patent and trade dress claims.  (There are utility patent claims in there, too.) Paging Michael Risch, perhaps? Read his thorough summary of the legal issues. My theme is somewhat broader, echoing, perhaps, the terrific column that Susan Crawford offered the other day.  Her point, pre-verdict, was that consumers would lose — regardless of the winner of the case. That’s surely true from the point of view of price.  Consumers, in the end, are likely to pay more for their devices.  It’s also true in a more thematic sense.  My point is that Apple and Samsung have, together, been fucking with the magic.

The phrase itself comes from an anecdote reported in Ken Auletta’s biography of Google:

Among the first “old” media executives to awaken to the threat [posed by Google search] was Mel Karmazin, then the CEO of Viacom. He visited Google in 2003 and remembers how Page and Brin extolled the value of being able to measure everything, including the effectiveness of advertising.

This alarmed Karmazin, for it threatened how he sold advertising, which was based on salesmanship, emotion. Karmazin and the networks continued to charge steep rates because, Karmazin says, “advertisers don’t know what works and what doesn’t. That’s a great model.”

But it’s a model, the Google executives told him, that is horribly inefficient.

Karmazin, before departing, trained his eyes on his Google hosts and blurted, only half in jest, “You’re fucking with the magic!”

I was reminded of that story when I read the text of Kent Walker’s recent speech at the Technology Policy Summit / Aspen.  I’ve known Kent for almost 40 years; he’s one of the smartest people I’ve ever met.  He borrowed from Arthur C. Clarke – “any sufficiently advanced technology is indistinguishable from magic” – and argued that the patent system itself is threatening to kill the “magical” elements of technology and innovation.

Google is the spectre that haunts Apple; the smart phone wars around the world are being fought by Apple and Samsung, but Google is Apple’s real nemesis in the Magic Kingdom that we call the Silicon Valley.  Steve was Walt, I think, and Google is the Disney myth-buster.  Google is fucking with Apple’s magic.  Like the incumbent IP owners in Auletta’s anecdote, Apple is angry.

That’s how I see Samsung.  Did it copy Apple’s trade dress and design patents?  The jury has said so, and has said that Samsung infringed, but then juries often will. Trials aren’t mostly about the law; trials are morality plays.  They’re about good and evil. And this jury has said, mostly, that Samsung fucked with Apple’s magic — with the people’s magic, that is, because so many of us, even the majority of smart phone users who use Android devices, want to believe in the magic.  Even Google wants us to think that it, too, believes in the magic, even when it fucks with it.

But Apple, too, is fucking with the magic.  Every working magician knows that one of the keys to a magic experience is not to let anyone see how the magic is made.  Share with your colleagues; don’t share with the audience.  But now everyone, world-wide, is starting to see just how Apple conjures its products.  In one sense that’s not really knew; stories of how Steve Jobs and Apple appropriate ideas from other designers and innovators are well-known.  But what fascinates is that the magic has persisted.  And it is inevitable, now that Apple has started down this path, that the magic will disappear.  Economists talk about rent dissipation; Apple is, I think, engaged in magic dissipation.

I start teaching my Trademark Law class on Monday, and as in years past I will start the semester with an exercise inspired by the evolution of Apple’s brand:  from its origins as the computer for everyone, to the computer for the hip, to the computer that is cutting edge.  The mark has remained mostly the same, but its meanings have changed.  Consumers were once supposed to accept the comfort of Apple; now consumers are supposed to wonder at Apple.  They will continue to wonder.  For a while.  And then they won’t.

Magic won’t disappear from the world of innovation or from the law of IP.  In that respect, Kent Walker is right, even if Google at times seems to be playing both sides of the street.  Magic, in the sense of a belief in the transformative power of the partially-hidden “other,” is a fundamental part of the equation that says that innovation is some mysterious, important, and deeply complex process kept aloft, if at all, largely by the force of patent and copyright law.  The effectiveness of IP rights and the impact of innovation are as much matters of assumption and belief (or, magicians would say, misdirection and distraction) as they are matters of data.

And, of course, we love magic.  Few people want to believe that it doesn’t exist, at least as part of our collective mythology, even if magic is, in pure economic terms, expensive, even a luxury.   Some may think that the ghost of Steve Jobs is the Dark Lord, but most people seem to think that he is Dumbledore, if not Harry himself.  Or perhaps he is (was) the equivalent of Jo Rowling.  (Or is Jo Rowling a literary Steve Jobs?)  He can turn muggles into witches and wizards.  Cupertino is Hogwarts.  My iPhone is my wand.  The Apple Store is Ollivander’s.

So it could be said.  The jury verdict, in any case, is a first result, not an end result. There is, I think, more magic to come.