August 15, 2023 • 38 mins
Today the concept of intellectual property, or IP, is pretty well-established. And this notion of ownership over some often intangible concept, brand or idea may seem like a product of the modern age -- but, as it turns out, it's much, much older than that. In part one of this two-part series, Ben, Noel and Max explore the ridiculous history of IP.
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Speaker 1 (00:00):
Ridiculous History is a production of iHeartRadio. Welcome back to
(00:27):
the show Ridiculous Historians. Thank you, as always so much
for tuning in. Let's hear it for our super producer
and our own legal beagle, mister Max Williams.
Speaker 2 (00:38):
He's so litigious, he's always just suan Willie and or
nilly left and or right now.
Speaker 1 (00:43):
That's just you know, did you You know? I'm Ben
and that's uh. And you guys are gonna behave yourselves
because we're all friends here. I never sued no one,
not never, not know how. I don't even know where
to start. I read recently, just over this past week,
a story of about a guy who was a judge
who sued a family dry cleaner for fifty four million
(01:06):
dollars because, according to him, they lost a pair of
his pants. And this guy was so litigious that he
actually lost his job. My favorite line I almost texted
it to you guys, was they had to pause. This
is a quote from the article. They had to pause
court proceedings because the guy apparently got so emotional when
(01:27):
he was questioning himself about losing his pants that he
rucked down in tears.
Speaker 2 (01:33):
Were the pants on him? At the time the dry cleaned. No,
were they magical pants? I'm confused, Yeah, lucky pantaloons? What well,
fifty million, that's that's absurd.
Speaker 1 (01:44):
Surely he did not win. No, I mean, were they white? Unclear?
They I think they were just regular khakis. But the
thing is that guy was he did lose his job
as a judge, which he could have, because he weaponized
all his legal knowledge to just torture this family so
much that it's just like a mom, dad, and kid.
(02:05):
And he tortured them so much with appeals and YadA, YadA, YadA,
that they almost moved back to South Korea. So we know,
we know that you can be a bad faith actor
in the in the world of courts. And we're going
to talk today about something this this might end up
being a two parter, something that I think has fascinated
(02:26):
all of us, and it's something we started running into
a lot in the world of podcasting. I don't run
into this in my day to day life, you know, honestly.
Speaker 2 (02:34):
It was it was in through podcasting and colleagues of
ours and you know, various deals and things like that,
that I started hearing the term ip thrown around and
for the longest time, I didn't really know what it
meant and never really bothered to ask. But it's a
real umbrella term, you know, and it refers to a
whole lot of stuff, innovation, software, engineering, entertainment. It's a
(02:57):
real catch all term that basically refers to the way
you can protect and or commodify and or sue on
behalf of an idea, and the way people treat ideas.
Speaker 1 (03:10):
Yeah, that's a good way to put it. Is such
an umbrella term. Intellectual property. I had the idea, this
idea is mine. But this applies to so many other things.
The manufacturing process for pharmaceutical substances, the algorithms used to
assess your credit score, even words like Google, or the
(03:36):
brand or brand logos like the Golden Artist McDonald's. I'll
never forget my first brush, my first serious brush with IP,
getting into legal trouble for it. I got a pretty
strident letter when I was working on that animated show
for kids called Stuff of Genius about inventors. And you
(03:58):
guys have heard this story. The people who own Frisbee,
the trademark Frisbee, they are hardcore about it. If it's
not a Frisbee brand Frisbee, it can only be called
a flying disc. I'm out here trying to like tell
eight year olds about how Frisbees came to be and
I got to cease and desist or a C and
D in the business.
Speaker 2 (04:18):
Wow, yeah, and it will you know, we'll probably get
into this a little bit. But it's also sometimes a
brand or a trademarked you know, concept can become so
ubiquitous that it becomes a catchall tournament of itself, like
Xerox as they come, you.
Speaker 1 (04:32):
Know, sort of.
Speaker 2 (04:32):
I mean, it's not even that people do that much
anymore because who holds paper? But you know, there was
a time where you'd say, xerox me this, you know,
document or whatever, and that would just refer to making
a photographic copy, a photocopy. I guess it's the but
Xerox is obviously the biggest brand, you know, in that world,
or you know, in certain parts of the country, Soda
(04:54):
pop is a coke we live in that part of
the country, or yeah, yeah, Frisbee exactly are BANDI next?
These are proprietary eponyms, and yeah, once that stuff comes out.
The problem is, no matter how many people you take
to court, you can't stop billions of people from just
collectively deciding to say, we google something when we Internet search.
(05:19):
You know, I encountered something that is pretty hilarious, and
I don't I don't know if this is actually protectable
IP or if this was actually registered as a trademark.
But are you guys familiar with the movie Bird Demic,
Shock and Terror.
Speaker 1 (05:32):
I'm not.
Speaker 2 (05:33):
It is a really really, really low budget hilarious It's
like like in the in the Zone of the room
the Tommy wisso filmic atrocity that has become kind of
a cult sensation. It's in that kind of vein of
just you know, so bad. It's kind of amazing in
and of itself that it even exists. It's got like
it's you know, it's a love story that seems like.
But then and also these like killer birds enter the scene,
(05:55):
and if you watch the trailer, the birds are just
clearly like badly photosh kind of after effects on and
they're like hovering while their wings are flapping and they're
kind of hovering in place. But in the trailer language
they refer to it as are the directors referred to
as the Master of Quote. The romantic thriller which is
followed by a trademark symbol. I don't know if that's
(06:18):
if that's sufficiently creative enough to warrant a trademark. We're
going to get into what some of the criteria are
for getting a trademark or you know, the ideas have
to have a certain amount of originality, they have to
just have a certain amount of novelness, et cetera. And
then there are other laws that can protect these you know,
rights of the intellectual property stakeholders. But then there are
(06:40):
also laws that keep it from getting a little too
you know, protected right.
Speaker 1 (06:45):
And those laws are going to surprise you along the way.
At some point, I'm going to figure out the etymology
of legal beagle. But but but for now, yeah, let's
be aspirational. But for now, I think no. Maybe one
of the things are fellow ridiculous historians need knew from
the jump is that the concept of intellectual property or
IP is super duper old, way older than you might assume.
(07:08):
All the way back to five hundred BCE in a
Greek colony named Sibaris or Siberis, there were these chefs
who got who were granted legal monopolies for a year
at a time over the creation of certain dishes, so
they would say, look, you're the only guy who can
(07:30):
make the fig far fig nugan here, which was you know,
as we all know huge in Siberis at the time.
It's not a cookie, it's fruited cake. Everyone knows that.
Speaker 2 (07:41):
There's a really cool book that collects a lot of
this history, and it's called The Genesis of American Patent
and Copyright Law by Bruce Bugby, which is a great name.
He highlights a couple of interesting cases, one involving Vitruvius,
who is said to have essentially codified the idea of
(08:04):
intellectual property theft. During a literary contest that he oversaw
in Alexandria where he was one of the judges, Truvius
essentially called out, you know, put on blasts some other
poets that he referred to as being false because he
believed that they had stolen the words and turns of
(08:27):
phrase of other writers, of other poets.
Speaker 1 (08:30):
Which would be super easy at the time, because you know,
the only way to transmit things would be word of
mouth or writing it down and physically transporting it. So
these people could be stealing stuff and the audience would
never know unless someone brought it to their attention the
other times. Because in this book that you mentioned, Bugby
(08:52):
talks about three different cases of IP law and antiquity.
The second and third are also from Roman times. And
even though there's not a specific Roman law we can
point to about IP, we do know that Roman legal
experts discussed this in depth, you know, like, okay, if
there is a painting on a table, who owns the
(09:15):
painting versus who owns the table where the painting is on.
There's also the idea, like you said, literary piracy or plagiarism,
and people have been caught out reciting the works of
other folks. Then there are examples that might be a
little more unusual there because there was this huge network
(09:37):
of power structures monarchies in ancient times, granting privileges like
the royal patent, we make the king's shoes, you know,
and then franchises different favors. Budby has a cool distinguishment
between these. He says, look, the difference between systems of
intellectual property versus franchise is a royal favorite is that
(10:01):
the franchises, the royal co signs restrict access to intellectual
works ideas that are already in the public sphere, and
so they take something away from people. An inventor, on
the other hand, is just adding something new to the world.
They're not taking away anything that was already there. And
that's why you get to like authors would copy each
(10:25):
other all the freaking time, you know what I mean.
And AI is kind of just an iteration of that.
AI is the crack cocaine to the powder cocaine of
early plagiarism. Yeah, indeed.
Speaker 2 (10:38):
And it's interesting because I mean, one person's influence is
another person's theft, you know. And we know that artists
have borrowed from other artists throughout history, writers have borrowed
ideas and sometimes you know, whole concepts or even specific
turns of phrase from other writers.
Speaker 1 (10:56):
And it is a little bit of a gray area.
Speaker 2 (10:58):
And some of these intellectual property laws are designed to
kind of make that a little clearer, make those distinctions
a little clear, But it doesn't always work, you know,
because it is we do live in a world of
intersecting influences, so it's really kind of hard to sometimes say,
you know, and we see it a lot too, in
like lawsuits surrounding maybe music. You know, I believe it
(11:20):
was Ed Sharon just one a couple of lawsuits where
he was sued for supposedly, you know, lifting a melody
from like a famous R and B song.
Speaker 1 (11:30):
Once I started that, Yeah, did Fogerty get wasn't Fogerty
and Creeden's clear Water? He got sued for music that
he had made because it sounded too much like himself,
too much like himself.
Speaker 2 (11:47):
Point being, you know, once this when stuff like this,
when creativity starts to get too litigious, it really cracks
down on creativity and it makes people scared to like,
you know, try things. And so it's it's a line,
you know where you don't want people to be open
to outright theft and someone could like profit or benefit
from literally stealing someone else's idea. But also there's only
(12:08):
so many notes in the scale, there's only so many
you know, story archetypes, one hundred percent. So it is,
you know, it's kind of a delicate dance. But I
think this is a very interesting place to start with
these examples from antiquity. Another example comes from the birth
of the Florentine Republic, where you know, rulers were basically
(12:29):
passing out franchises and a lot of like you said, Ben,
there are these arbiters of kind of royal favors and privileges,
and Ben, this really reminds me a little bit at
least of our Snake Oil episode and the idea of
these royals essentially having carte blanche to say no, this
is fine, and this person's able to do it, and
they have, you know, exclusive rights to make this medicine
(12:52):
that we have deemed to be efficacious through our god
given ability to you know, do science, which.
Speaker 1 (12:59):
Yeah, isn't the case it all. It turns out that
just like we talked about in our previous Vatican City episode,
that anytime you are in a society where just one
person can decide whether something is good or bad, you
run into ridiculous situations like okay, let's go back to
this idea of patent, very much related to intellectual property.
A patent sort of locks down the concept that this
(13:21):
is your idea and whatever happens with it later through
the work of others. You should get a piece of
that if it's based on your concepts. And this takes
us to the Republic of Florence. It's June nineteenth, fourteen,
twenty one. There's a guy named Felippo Brunelleschi. He's a
famous architect, and he gets this one of the first
(13:44):
statutes that protects the rights of a creator, and the
Republic of Florence says, Okay, you write something, you invent something.
We respect that it's your idea, and we're going to
give you incentives for this. And those incentives might very
case to case, but what they were also saying, one
of the incentives was if you sign up, if you
(14:05):
apply and you get a patent, we're going to crack
down on people who are trying to take your stuff.
And that's very appealing to people at this time, and
this becomes a huge piece of patent law as it
exists today, the idea that you will be compensated legally
if someone infringes upon your idea. And then the other
concept was a term limit on these inventors' rights. So
(14:30):
that's why you hear about things going out of copyright
in the world of literature. And for quite some time,
the mouse we all know who I'm talking about. The
mouse had some of the best copyright and IP lawyers
on the planet, stretching laws every time. Mickey mouse almost
got into public domain.
Speaker 2 (14:51):
Well, and I think they finally run up against the
ceiling of all of those efforts they did.
Speaker 1 (14:56):
Yeah, I think that's right.
Speaker 2 (14:57):
And i'd heard that they are considering pivoting from Mickey
being their primary you know, mascot to this little dragon
called Figment, which is pretty prominent at Disney World now,
the Figment, and I think he's been around for a while,
but there is like a statue of Walt Disney like
whole holding Figment, and he's certainly been in the cannon
(15:19):
for a bit. And there is a Figment ride with
I think it's John Cleeese or no Eric Idol, I
think for money Pythons as one of the narrators or
figures in that ride.
Speaker 1 (15:27):
But it doesn't seem like they fully pivoted to that.
Speaker 2 (15:30):
But I did read that a ways back, and I'm
interested to see how that goes. But yeah, I mean,
like through there, you know, just absolute army of lawyers,
intellectual property lawyers. I mean, you got to think about it, Disney,
you know, I was telling you guys off air that
I I mean and the fan watched the nineteen fifty
one Alice in Wonderland last night and it holds up. Man,
(15:52):
it looks absolutely modern, it's so cool, so innovative, and
of course they're going to protect that stuff. And like
Disney was just basically one of the first to market
with this kind of concept of like scaled, high level
glossy animation, and they innovate it with things like the
multiplane camera. So of course they're going to be protective
of that. But up to a point, you know, there
does come a point which it is like it is
(16:13):
kind of counterproductive to the public interest, right.
Speaker 1 (16:16):
Yeah, absolutely, and sometimes the public can get lost in
these conversations. Let's go to the English system. So over
in England they see what is happening in Italy and
they like a lot of the Italian ideas. So the
English system creates something called the Statute of Monopolies in
(16:37):
sixteen twenty four and the confusingly named Statute of ann
in seventeen ten. Right, the Statute of Monopolies says, if
you invent something, if you write something, you get the
monopoly over that for fourteen years, which was a long
time because you know, people died very frequently. Yeah, exactly.
(16:59):
This means we're not going to grant any exclusive rights
to non original ideas or to works that are already
in the public domain. So you can't be the person
who goes into court and says, I want a patent
on the book of job or tacos. That's my thing.
(17:21):
If you introduced them to tacos, you would have blown
their minds. That's that's that's a good point, bad example.
Speaker 2 (17:27):
But the point is you can't just say son that's
already been out there, that's been styled on many times
by different parties. You can't just say dibbs, you know,
like because I just I'm because I said it first.
That's not how that works. You have to demonstrate, whether
through drawings or you know, uh, some sort of documentation,
that you, in fact are the innovator of a certain idea.
(17:50):
And I think you made a good point earlier, Ben,
that this was an incentive for creators. This probably this
type of law is what spurred a lot of innovation.
If it were, if there weren't protections, then it would
not really benefit creators to come out with this idea
because people more powerful than them could just snatch it
(18:10):
right out from front of them.
Speaker 1 (18:11):
Not to say that didn't still happen, certainly did yeah,
and this is an excellent point you're making. We also
let's look at the Statute of ann because a lot
of scholars in the field consider this to be the
first modern copyright statute, and it's you can see where
(18:31):
they're coming from with it. It goes in part like this,
whereas printers, booksellers, and other persons have been lately frequently
taken the liberty of printing, reprinting, and publishing books without
the consent of or the authors and proprietors, to their
very great detriment and too often to the ruin of
them and their families. For preventing, therefore such practices for
the future, and for the encouragement of learned men to
(18:54):
compose and write, to use books, be it enacted. What
they're basically saying is everything we just said. That's the
best way to put it, like you, Like you mentioned,
there's this incentive, and I also want to shout out
the Stanford Encyclopedia of Philosophy, which pulls a lot of
this work together. And it doesn't take too long for
(19:17):
them to go to court. Right, there's that English. This
case comes up in English court Miller versus Taylor, and
eventually for a while, they say, Look, as a result
of this case in seventeen sixty nine, if you are
an author, you get to control what you get to
control the results of your work, right, you get to
(19:39):
control how what you made is used. And then that
goes into a more philosophical argument to whom does a
work of art belong? Does it belong to the creator,
does it belong to the audience? Does it belong to
the guy who buys it? I went to the Samurai
exhibit in the highchool. Dude, it is cool, but they
(19:59):
have so much stuff and there's a thing that freaked
me out a little learning about the proprietors. It's a
third generation art collector. So it's like this guy is
this son and grandson of full time art collectors and
this is such a small piece. Their full museum is
in Dallas. I suspect oil money, but like, does does
(20:20):
that stuff belong to them? And then or does it
belong to you know, they bought it. It's interesting.
Speaker 2 (20:25):
Belong is also sort of a bit of a you know,
black box or a gray area kind of term, like
it belongs to the reader in terms of the way
they interpret it with their imagination. But it doesn't belong
to them, and that they can just like republish it
under their own name and then expect to collect residuals.
Speaker 1 (20:45):
You know.
Speaker 2 (20:46):
So, I mean it is a philosophical conversation, but it's
also like it again goes into how do you use
your influences as a creator, Like are you truly you know,
creating something new based on or influenced by something old
or is it so derivative that it is you know,
essentially plagiarizing. And and also there's like a whole you know,
(21:09):
industry based on creating derivative work and not in the
legal sense. Derivative works is an ip ternament of itself,
for like making a book, you know, out of a
TV show or vice versas, you know, adaptations like the
catch All.
Speaker 1 (21:22):
There is derivative work.
Speaker 2 (21:23):
But you know, there's the whole concept of mockbusters, you know,
where it's like instead of transformers, it's transmorphers. And they're
basically banking on the fact that some people might not
know the difference and rent the bad one, you know,
or the cheap one. It's I believe it's called the Asylum.
This is a company that makes these kind of you know,
instead of snakes on.
Speaker 1 (21:42):
A plane straight some train. But they probably are.
Speaker 2 (21:47):
They've got legal representation who are telling them just how
far they can push.
Speaker 1 (21:52):
That line, like the Revengers instead of the Avengers. These
people ran the back aisles a blockbuster for many years.
Correct what we know about intellectual property or the way
it works out today, even though it does sound kind
of ridiculous and you can't get in ridiculous situations with it.
A lot of it comes from the United States, which
(22:14):
makes sense because one of the biggest US exports is
of course culture right movies, film, TV ideas, and the
IP system in the US comes from that Statute of
Monopolies I mentioned earlier sixteen twenty three, and it still
says the same thing. You get exclusive right to your
work for a limited time. This comes into something called
(22:39):
the Massachusetts Body of Liberties thanks to a guy named
Nathaniel Ward of Ipswich in sixteen forty one, and he said, look,
we're not going to allow anybody to have monopolies, but
if you make a new invention and it's overall something
that we all think is a good idea, then you
can have some exclusivity for a short time. The first
(23:02):
guy does this is a guy named Joseph Jenks Sr.
Which sounds weirdly Appalachian to me. He has given a
fourteen year patent for the invention of not the first
water mill engine, but a faster one. And they're like, hey,
good job, Joey. You know fourteen years, bro, you just
run with this. Let those ponies run. And then the
(23:25):
first American copyright goes to a Massachusetts printer named John
Usher just a few decades later, sixteen seventy two. Interesting
from Massachusetts.
Speaker 2 (23:35):
I spent a little bit of time over the weekend
watching a Criterion Channel collection of Roger Corman films adaptations
of Edgar Allen post stories, which is also interesting in
terms of intellectual property because those stories, you know, by
the nineteen sixties, I believe, were in the public domain,
so I don't think you had to pay any licensing
(23:56):
fees to do adaptations of them. And Roger Corman was,
I mean, not notorious is the wrong word, but just
was very much known for being a very frugal filmmaker.
And if you watch some of these, I think they're fabulous.
They all star Vincent Price, some of them reuse shots
from previous ones and The first two are The Fall
of the House of Usher, which is with this guy's name,
(24:16):
John Usher, the printer that you're talking about.
Speaker 1 (24:18):
A lot of these stories are based in.
Speaker 2 (24:19):
And around the Boston area in Massachusetts, so Usher is
this family that's supposedly cursed, you know. But my point
is the first two movies, The Pit and the Pendulum
and The House Fall of the House of Usher, are
both set in like the same kind of decrepit mansion
with the same kind of misty exterior shots that are
(24:40):
clearly like matte paintings and stuff, and both of them
sort of borrow shots for one another. But I actually
found them completely delightful. Little sidebar, but I just I couldn't.
I couldn't pass up a chance to talk about the
name Usher and the fact that there's this whole old
English kind of lineage there in Massachusetts around this time.
Speaker 1 (25:00):
Sense that Massachusetts would be sort of the origin point
for a lot of this legal thought because it's an
early colony, because there was so much money and so
much innovation in the area at the time, and they
weren't alone in this race. They weren't the only people
who were trying to figure out how to get their
heads around protecting ideas. A lot of colonial governments gave
(25:23):
patents and copyrights throughout the seventeen hundreds. Typically, though, these
were made as special one off acts of legislation and
they got passed on request, kind of like you get
guacamole on request. I call it the guacamole rule. So
if you invented something, you would have to go to
your local government and say, hey, lock this down, make
(25:46):
this exclusive Rhode Island. What are we anyway? These grants
typically all had the same strong commonalities. You can see
all you can see all sorts of early examples of this,
like Peter Rard in South Carolina sixteen ninety one gets
a two year patent for a rice husking machine he invents.
(26:09):
Rhode Island gives somebody a ten year patent for the
manufacturer of soap, and this continues through all kinds of stuff.
The Revolutionary War happens, fast forward, fast forward, and people
still want to protect ideas. Massachusetts is one of the
first to do this. When the US is newly formed,
(26:31):
they make their state constitution, and Massachusetts puts protection of
ideas in their constitution, which is pretty cool. Other states
didn't do that.
Speaker 2 (26:42):
Yeah, it makes sense because, like you said, a lot
of these early cases were centered right there, and that
really was kind of the seat of innovation in the
country at the time, so it makes sense they would
have kind of led the charge. And Massachusetts and the
Boston area obviously still continues to be a very important
side of academia, you know, for medical innovation.
Speaker 1 (27:03):
Sure, yeah, absolutely so, even though it was ad hoc
in a lot of other states outside of Massachusetts, they
still have the same commonality. You get exclusivity, but you
don't get it forever. And then as people in the
(27:25):
newly formed American States started traveling more and more states,
as it became more of an actual country, the need
to make the uniform IP legislation became mission critical. So
a lot of people, including authors like Noah Webster, started
lobbying the federal and state governments to say, hey, copyright legislation,
(27:49):
you guys, if something is if I wrote a book
in Georgia, then I should still be the guy who
wrote the book in New York.
Speaker 2 (27:57):
Of course, because I mean, obviously we're well past the
innovation of widespread you know, typeset printing and all you know,
so I mean, things are distributed far and wide, and
sometimes you know, thing these these sometimes they're smaller printing
operations like so like what we might think of today
as you know, more bespoke kind of presses or let's
say certain maybe record kind of companies that are smaller
(28:22):
that maybe make like high quality bootlegs or something like that.
You know, you certainly would have seen that. And if
there's no protection, then easily someone could just reprint your
work and sell it and make make money from it,
you know, and if there's no protection, then you would
have no recourse as the creator.
Speaker 1 (28:39):
Yeah, and that's that's dangerous because you know, this is
a full time job for these people, so if they
can't make a living off of it, then they can't
do it. That's one of the that's one of the
things that I think spurs the conversation along here. You
want to have a society where people can create culture.
(29:00):
And if you don't have that, if it's not possible
for them to do that, then eventually a society that
can create culture is going to is going to infiltrate
and kind of subsume what you think makes your society
its own thing.
Speaker 2 (29:15):
That's right, And I mean, you know, we're so easy
to romanticize the advent of the United States and all
of that and the Constitution.
Speaker 1 (29:22):
What it stood for.
Speaker 2 (29:23):
But I mean, there were a lot of things that
were very unique to it that it did stand for.
And these types of protections that you know, sort of
created the concept of the American Dream were kind of
you know, I guess, built into the language of the Constitution,
which is what made the United States sort of an interesting,
kind of like land of opportunity, right yeah, even if
(29:44):
it didn't always prove out to be that way in practice.
Speaker 1 (29:47):
Pursuit of happiness, correct, right, Yeah, I'm referring to that
beautiful line in the Constitution which basically says, you know,
go for it, do your best. Yeah it just just
give it the old college try so. In seventeen eighty three,
Congress passes a pretty important resolution about this that codifies
(30:10):
the idea of copyright statutes protecting an author's work for
not less than fourteen years. Within two years of this,
by seventeen eighty five, twelve of the thirteen states to
pass similar legislation. South Carolina is a little bit of
an outlier because they equated copyright and patent protections. They said,
(30:30):
it's an idea. It's kind of the same thing anyway.
You can just just to back.
Speaker 2 (30:35):
I mean, it wasn't exactly, you know, it's not like
one of the part of the Bill of Rights exactly,
but it was, you know, the language in the Constitution
was suggesting of this sort of protection. Left it up
to the states, but it seemed like it was already
at this point pretty important to most of them.
Speaker 1 (30:52):
Yeah, agreed. And here's the problem with this stuff, folks.
This is where things often get ridiculous. As anyone can
assure you. You can write all sorts of laws, you
put whatever you want on paper, that is not the
same thing as those laws being followed. And putting something
on paper doesn't make it automatically true. American intellectual property
(31:17):
protection was still a really tall milkshake, a crazy bag
of badgers for many years after state laws made it
really expensive and tough for people to make use of
these of these protections. Right, you would already have to
kind of be in the system. You'd have to be
kind of well to do. What I'm saying is, if
(31:39):
you were a sharecropper and you wrote an amazing book
of poems or meditations on agriculture, then you would have
a really tough time getting the protection that you were
guaranteed on paper. And the Constitutional Convention, to your point,
didn't talk about IP stuff until August other things to do,
(32:01):
and as soon as it came through, everyone agreed. They
were like, yeah, let's do. Yeah, that's fine, that's totally fine.
You know. Over there were fifty five people at the
Constitutional Convention. Over half had legal training of some sort.
Most of them were super deep involved, super deeply involved
in their state government. So they all had or at
(32:22):
least over half of them had some kind of rough
understanding IP law. So this wasn't a hot button issue
for them. It was something they could all agree on,
which is relatively unusual at any point in American governance.
Speaker 2 (32:35):
That's right, and it's it's it is a little confusing,
and I think that's evidence by my waffling on this.
I mean, there was a clause, an IP clause in
the Constitution that was written then after a lot of
this kind of state by state embracing of IP law.
But even though that that it was written into the Constitution,
(32:56):
it's still it was it was sort of imperfectly written,
I guess, so this whole state based system of intellectual
property protection kind of was a little bit you know
rough right.
Speaker 1 (33:10):
Yeah, I mean, okay, I say this with great affection
for the Constitution. It was a difficult documents, right, they
knew it was not going to be perfect. And a
lot of times if you read it, there's this vibe
of you know, make this happen somehow, so do your best. Yeah,
trust sure, product to that happiness, bro. So, like, the
(33:33):
US Constitution does have that IP stuff in there. It's
Article one, Section eight, clause eight. And all they say
is the gist of it is quote to promote the
progressive science and useful arts by securing, for limited times
to authors and inventors the exclusive right to their respective
(33:55):
writings and discoveries. So just somehow make that happen. That's
all the cost. It doesn't say how to do that.
It's just like all right also that and you know,
these guys already had a long day at the convention.
They've probably been arguing back and forth. Someone says, all right,
what about this part. We all know this one, and
everybody goes, uh, yeah, when's lunch, you know what I mean,
(34:17):
Just yeah, just knock it out.
Speaker 2 (34:19):
So once again hopping across the pond back to Europe.
We had countries such as Holland and Switzerland and Belgium
and Italy.
Speaker 1 (34:28):
That were modeling their.
Speaker 2 (34:32):
IP laws around what England had accomplished. It's interesting considering
that I believe England initially modeled their intellectual property laws
off of what was that, Ben, We talked about that
at the very beginning. Was it about like Florence off
of Florence, off of Italy exactly? So it's the circle
of life there once again. So you're starting to see,
(34:55):
you know, we have weirdly also seen Ben, if I'm
not mistaken, it's sort of areas, you know, country by country.
But in Europe there are some laws that are more
protective of intellectual property for creatives and for you know,
rights holders than we have here in the United States.
Speaker 1 (35:15):
Right sure. And then there are other countries where that
that dog doesn't hunt as they say, you know that
that leads to some very interesting situations in the In
mainland China, for instance, there are tons of Harry Potter
books that JK. Rowling didn't write. There are thousands upon
(35:38):
thousands of unofficial sequels because it's very much a reading
country to all of your favorite books in the West.
It's it's still doesn't there's non IP law that is
enforced uniformly across the globe, and is that a problem?
Is that something that does need to be fixed? What
(36:00):
does the future bring?
Speaker 2 (36:02):
Well, we did start to see, you know, some kind
of intellectual property agreements that were more globally sort of focused,
like the Burn Convention treaty, and also something called the
Trade Related Aspects of Intellectual Property Agreement or TRIPS, which
was nineteen which took place in as recently as nineteen
ninety four. So there is sort of an eye towards
(36:25):
you know, global enforcement of intellectual property taking place. But
that all just depends. It's sort of like it's toothless.
It's sort of like a lot of UN resolutions, like
you're not going to go to war over it. It's
sort of more like a play nice. Here's what we've
sort of agreed are the rules. But if you're not
participating country then, like you said with China or whatever,
then it's not really you know, relevant.
Speaker 1 (36:46):
Yeah, a lot of it is sort of Western or
European rules, and it's kind of it's weirdly similar to
the climate change debate. You know a lot of developing
nations say, well, you wrecked the planet. Why do why
are you pulling the ladder up after you and telling
us that we can't do the same thing to succeed?
Speaker 2 (37:05):
And so like you polluted more, so shouldn't you have
to you know, do more in terms of like carbon
credits and rings like that.
Speaker 1 (37:12):
Right, yeah, and you know, folks are gonna have to
personally agree with that perspective, but we do need to
acknowledge it exists. And with that we are calling it
a day. This is the end of part one of
our History of Intellectual Property episode. Now, we gave you
a lot of background, we gave you a lot of context.
Tune in for part two because this is when we
get to some even more ridiculous stuff, including some examples
(37:37):
of what happens when IP beefs get cartoonish. So thanks
as always to our pal, our super producer, mister Backs Williams,
Thanks to our research associate, doctor Z.
Speaker 2 (37:49):
Indeed, huge thanks to Christopher hasiotis here in spirit, Alex
Williams who composed of our theme, Jonathan Strickland, our very
own personal patent trol or just you know a troll.
Speaker 1 (38:00):
He's sort of more of a bridge troll type figure than.
Speaker 2 (38:03):
A patent one, which we should talk about the concept
of patent trolls a little bit.
Speaker 1 (38:07):
We certainly mentioned in the.
Speaker 2 (38:08):
Past, but look for a little bit more of that
kind of talk in episode too.
Speaker 1 (38:13):
I'm taking out a patent on the letter E. We'll
see you next type folks.
Speaker 2 (38:25):
For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts,
or wherever you listen to your favorite shows.
Ridiculous History is a production of iHeartRadio. Welcome back to
(00:27):
the show Ridiculous Historians. Thank you, as always so much
for tuning in. Let's hear it for our super producer
and our own legal beagle, mister Max Williams.
Speaker 2 (00:38):
He's so litigious, he's always just suan Willie and or
nilly left and or right now.
Speaker 1 (00:43):
That's just you know, did you You know? I'm Ben
and that's uh. And you guys are gonna behave yourselves
because we're all friends here. I never sued no one,
not never, not know how. I don't even know where
to start. I read recently, just over this past week,
a story of about a guy who was a judge
who sued a family dry cleaner for fifty four million
(01:06):
dollars because, according to him, they lost a pair of
his pants. And this guy was so litigious that he
actually lost his job. My favorite line I almost texted
it to you guys, was they had to pause. This
is a quote from the article. They had to pause
court proceedings because the guy apparently got so emotional when
(01:27):
he was questioning himself about losing his pants that he
rucked down in tears.
Speaker 2 (01:33):
Were the pants on him? At the time the dry cleaned. No,
were they magical pants? I'm confused, Yeah, lucky pantaloons? What well,
fifty million, that's that's absurd.
Speaker 1 (01:44):
Surely he did not win. No, I mean, were they white? Unclear?
They I think they were just regular khakis. But the
thing is that guy was he did lose his job
as a judge, which he could have, because he weaponized
all his legal knowledge to just torture this family so
much that it's just like a mom, dad, and kid.
(02:05):
And he tortured them so much with appeals and YadA, YadA, YadA,
that they almost moved back to South Korea. So we know,
we know that you can be a bad faith actor
in the in the world of courts. And we're going
to talk today about something this this might end up
being a two parter, something that I think has fascinated
(02:26):
all of us, and it's something we started running into
a lot in the world of podcasting. I don't run
into this in my day to day life, you know, honestly.
Speaker 2 (02:34):
It was it was in through podcasting and colleagues of
ours and you know, various deals and things like that,
that I started hearing the term ip thrown around and
for the longest time, I didn't really know what it
meant and never really bothered to ask. But it's a
real umbrella term, you know, and it refers to a
whole lot of stuff, innovation, software, engineering, entertainment. It's a
(02:57):
real catch all term that basically refers to the way
you can protect and or commodify and or sue on
behalf of an idea, and the way people treat ideas.
Speaker 1 (03:10):
Yeah, that's a good way to put it. Is such
an umbrella term. Intellectual property. I had the idea, this
idea is mine. But this applies to so many other things.
The manufacturing process for pharmaceutical substances, the algorithms used to
assess your credit score, even words like Google, or the
(03:36):
brand or brand logos like the Golden Artist McDonald's. I'll
never forget my first brush, my first serious brush with IP,
getting into legal trouble for it. I got a pretty
strident letter when I was working on that animated show
for kids called Stuff of Genius about inventors. And you
(03:58):
guys have heard this story. The people who own Frisbee,
the trademark Frisbee, they are hardcore about it. If it's
not a Frisbee brand Frisbee, it can only be called
a flying disc. I'm out here trying to like tell
eight year olds about how Frisbees came to be and
I got to cease and desist or a C and
D in the business.
Speaker 2 (04:18):
Wow, yeah, and it will you know, we'll probably get
into this a little bit. But it's also sometimes a
brand or a trademarked you know, concept can become so
ubiquitous that it becomes a catchall tournament of itself, like
Xerox as they come, you.
Speaker 1 (04:32):
Know, sort of.
Speaker 2 (04:32):
I mean, it's not even that people do that much
anymore because who holds paper? But you know, there was
a time where you'd say, xerox me this, you know,
document or whatever, and that would just refer to making
a photographic copy, a photocopy. I guess it's the but
Xerox is obviously the biggest brand, you know, in that world,
or you know, in certain parts of the country, Soda
(04:54):
pop is a coke we live in that part of
the country, or yeah, yeah, Frisbee exactly are BANDI next?
These are proprietary eponyms, and yeah, once that stuff comes out.
The problem is, no matter how many people you take
to court, you can't stop billions of people from just
collectively deciding to say, we google something when we Internet search.
(05:19):
You know, I encountered something that is pretty hilarious, and
I don't I don't know if this is actually protectable
IP or if this was actually registered as a trademark.
But are you guys familiar with the movie Bird Demic,
Shock and Terror.
Speaker 1 (05:32):
I'm not.
Speaker 2 (05:33):
It is a really really, really low budget hilarious It's
like like in the in the Zone of the room
the Tommy wisso filmic atrocity that has become kind of
a cult sensation. It's in that kind of vein of
just you know, so bad. It's kind of amazing in
and of itself that it even exists. It's got like
it's you know, it's a love story that seems like.
But then and also these like killer birds enter the scene,
(05:55):
and if you watch the trailer, the birds are just
clearly like badly photosh kind of after effects on and
they're like hovering while their wings are flapping and they're
kind of hovering in place. But in the trailer language
they refer to it as are the directors referred to
as the Master of Quote. The romantic thriller which is
followed by a trademark symbol. I don't know if that's
(06:18):
if that's sufficiently creative enough to warrant a trademark. We're
going to get into what some of the criteria are
for getting a trademark or you know, the ideas have
to have a certain amount of originality, they have to
just have a certain amount of novelness, et cetera. And
then there are other laws that can protect these you know,
rights of the intellectual property stakeholders. But then there are
(06:40):
also laws that keep it from getting a little too
you know, protected right.
Speaker 1 (06:45):
And those laws are going to surprise you along the way.
At some point, I'm going to figure out the etymology
of legal beagle. But but but for now, yeah, let's
be aspirational. But for now, I think no. Maybe one
of the things are fellow ridiculous historians need knew from
the jump is that the concept of intellectual property or
IP is super duper old, way older than you might assume.
(07:08):
All the way back to five hundred BCE in a
Greek colony named Sibaris or Siberis, there were these chefs
who got who were granted legal monopolies for a year
at a time over the creation of certain dishes, so
they would say, look, you're the only guy who can
(07:30):
make the fig far fig nugan here, which was you know,
as we all know huge in Siberis at the time.
It's not a cookie, it's fruited cake. Everyone knows that.
Speaker 2 (07:41):
There's a really cool book that collects a lot of
this history, and it's called The Genesis of American Patent
and Copyright Law by Bruce Bugby, which is a great name.
He highlights a couple of interesting cases, one involving Vitruvius,
who is said to have essentially codified the idea of
(08:04):
intellectual property theft. During a literary contest that he oversaw
in Alexandria where he was one of the judges, Truvius
essentially called out, you know, put on blasts some other
poets that he referred to as being false because he
believed that they had stolen the words and turns of
(08:27):
phrase of other writers, of other poets.
Speaker 1 (08:30):
Which would be super easy at the time, because you know,
the only way to transmit things would be word of
mouth or writing it down and physically transporting it. So
these people could be stealing stuff and the audience would
never know unless someone brought it to their attention the
other times. Because in this book that you mentioned, Bugby
(08:52):
talks about three different cases of IP law and antiquity.
The second and third are also from Roman times. And
even though there's not a specific Roman law we can
point to about IP, we do know that Roman legal
experts discussed this in depth, you know, like, okay, if
there is a painting on a table, who owns the
(09:15):
painting versus who owns the table where the painting is on.
There's also the idea, like you said, literary piracy or plagiarism,
and people have been caught out reciting the works of
other folks. Then there are examples that might be a
little more unusual there because there was this huge network
(09:37):
of power structures monarchies in ancient times, granting privileges like
the royal patent, we make the king's shoes, you know,
and then franchises different favors. Budby has a cool distinguishment
between these. He says, look, the difference between systems of
intellectual property versus franchise is a royal favorite is that
(10:01):
the franchises, the royal co signs restrict access to intellectual
works ideas that are already in the public sphere, and
so they take something away from people. An inventor, on
the other hand, is just adding something new to the world.
They're not taking away anything that was already there. And
that's why you get to like authors would copy each
(10:25):
other all the freaking time, you know what I mean.
And AI is kind of just an iteration of that.
AI is the crack cocaine to the powder cocaine of
early plagiarism. Yeah, indeed.
Speaker 2 (10:38):
And it's interesting because I mean, one person's influence is
another person's theft, you know. And we know that artists
have borrowed from other artists throughout history, writers have borrowed
ideas and sometimes you know, whole concepts or even specific
turns of phrase from other writers.
Speaker 1 (10:56):
And it is a little bit of a gray area.
Speaker 2 (10:58):
And some of these intellectual property laws are designed to
kind of make that a little clearer, make those distinctions
a little clear, But it doesn't always work, you know,
because it is we do live in a world of
intersecting influences, so it's really kind of hard to sometimes say,
you know, and we see it a lot too, in
like lawsuits surrounding maybe music. You know, I believe it
(11:20):
was Ed Sharon just one a couple of lawsuits where
he was sued for supposedly, you know, lifting a melody
from like a famous R and B song.
Speaker 1 (11:30):
Once I started that, Yeah, did Fogerty get wasn't Fogerty
and Creeden's clear Water? He got sued for music that
he had made because it sounded too much like himself,
too much like himself.
Speaker 2 (11:47):
Point being, you know, once this when stuff like this,
when creativity starts to get too litigious, it really cracks
down on creativity and it makes people scared to like,
you know, try things. And so it's it's a line,
you know where you don't want people to be open
to outright theft and someone could like profit or benefit
from literally stealing someone else's idea. But also there's only
(12:08):
so many notes in the scale, there's only so many
you know, story archetypes, one hundred percent. So it is,
you know, it's kind of a delicate dance. But I
think this is a very interesting place to start with
these examples from antiquity. Another example comes from the birth
of the Florentine Republic, where you know, rulers were basically
(12:29):
passing out franchises and a lot of like you said, Ben,
there are these arbiters of kind of royal favors and privileges,
and Ben, this really reminds me a little bit at
least of our Snake Oil episode and the idea of
these royals essentially having carte blanche to say no, this
is fine, and this person's able to do it, and
they have, you know, exclusive rights to make this medicine
(12:52):
that we have deemed to be efficacious through our god
given ability to you know, do science, which.
Speaker 1 (12:59):
Yeah, isn't the case it all. It turns out that
just like we talked about in our previous Vatican City episode,
that anytime you are in a society where just one
person can decide whether something is good or bad, you
run into ridiculous situations like okay, let's go back to
this idea of patent, very much related to intellectual property.
A patent sort of locks down the concept that this
(13:21):
is your idea and whatever happens with it later through
the work of others. You should get a piece of
that if it's based on your concepts. And this takes
us to the Republic of Florence. It's June nineteenth, fourteen,
twenty one. There's a guy named Felippo Brunelleschi. He's a
famous architect, and he gets this one of the first
(13:44):
statutes that protects the rights of a creator, and the
Republic of Florence says, Okay, you write something, you invent something.
We respect that it's your idea, and we're going to
give you incentives for this. And those incentives might very
case to case, but what they were also saying, one
of the incentives was if you sign up, if you
(14:05):
apply and you get a patent, we're going to crack
down on people who are trying to take your stuff.
And that's very appealing to people at this time, and
this becomes a huge piece of patent law as it
exists today, the idea that you will be compensated legally
if someone infringes upon your idea. And then the other
concept was a term limit on these inventors' rights. So
(14:30):
that's why you hear about things going out of copyright
in the world of literature. And for quite some time,
the mouse we all know who I'm talking about. The
mouse had some of the best copyright and IP lawyers
on the planet, stretching laws every time. Mickey mouse almost
got into public domain.
Speaker 2 (14:51):
Well, and I think they finally run up against the
ceiling of all of those efforts they did.
Speaker 1 (14:56):
Yeah, I think that's right.
Speaker 2 (14:57):
And i'd heard that they are considering pivoting from Mickey
being their primary you know, mascot to this little dragon
called Figment, which is pretty prominent at Disney World now,
the Figment, and I think he's been around for a while,
but there is like a statue of Walt Disney like
whole holding Figment, and he's certainly been in the cannon
(15:19):
for a bit. And there is a Figment ride with
I think it's John Cleeese or no Eric Idol, I
think for money Pythons as one of the narrators or
figures in that ride.
Speaker 1 (15:27):
But it doesn't seem like they fully pivoted to that.
Speaker 2 (15:30):
But I did read that a ways back, and I'm
interested to see how that goes. But yeah, I mean,
like through there, you know, just absolute army of lawyers,
intellectual property lawyers. I mean, you got to think about it, Disney,
you know, I was telling you guys off air that
I I mean and the fan watched the nineteen fifty
one Alice in Wonderland last night and it holds up. Man,
(15:52):
it looks absolutely modern, it's so cool, so innovative, and
of course they're going to protect that stuff. And like
Disney was just basically one of the first to market
with this kind of concept of like scaled, high level
glossy animation, and they innovate it with things like the
multiplane camera. So of course they're going to be protective
of that. But up to a point, you know, there
does come a point which it is like it is
(16:13):
kind of counterproductive to the public interest, right.
Speaker 1 (16:16):
Yeah, absolutely, and sometimes the public can get lost in
these conversations. Let's go to the English system. So over
in England they see what is happening in Italy and
they like a lot of the Italian ideas. So the
English system creates something called the Statute of Monopolies in
(16:37):
sixteen twenty four and the confusingly named Statute of ann
in seventeen ten. Right, the Statute of Monopolies says, if
you invent something, if you write something, you get the
monopoly over that for fourteen years, which was a long
time because you know, people died very frequently. Yeah, exactly.
(16:59):
This means we're not going to grant any exclusive rights
to non original ideas or to works that are already
in the public domain. So you can't be the person
who goes into court and says, I want a patent
on the book of job or tacos. That's my thing.
(17:21):
If you introduced them to tacos, you would have blown
their minds. That's that's that's a good point, bad example.
Speaker 2 (17:27):
But the point is you can't just say son that's
already been out there, that's been styled on many times
by different parties. You can't just say dibbs, you know,
like because I just I'm because I said it first.
That's not how that works. You have to demonstrate, whether
through drawings or you know, uh, some sort of documentation,
that you, in fact are the innovator of a certain idea.
(17:50):
And I think you made a good point earlier, Ben,
that this was an incentive for creators. This probably this
type of law is what spurred a lot of innovation.
If it were, if there weren't protections, then it would
not really benefit creators to come out with this idea
because people more powerful than them could just snatch it
(18:10):
right out from front of them.
Speaker 1 (18:11):
Not to say that didn't still happen, certainly did yeah,
and this is an excellent point you're making. We also
let's look at the Statute of ann because a lot
of scholars in the field consider this to be the
first modern copyright statute, and it's you can see where
(18:31):
they're coming from with it. It goes in part like this,
whereas printers, booksellers, and other persons have been lately frequently
taken the liberty of printing, reprinting, and publishing books without
the consent of or the authors and proprietors, to their
very great detriment and too often to the ruin of
them and their families. For preventing, therefore such practices for
the future, and for the encouragement of learned men to
(18:54):
compose and write, to use books, be it enacted. What
they're basically saying is everything we just said. That's the
best way to put it, like you, Like you mentioned,
there's this incentive, and I also want to shout out
the Stanford Encyclopedia of Philosophy, which pulls a lot of
this work together. And it doesn't take too long for
(19:17):
them to go to court. Right, there's that English. This
case comes up in English court Miller versus Taylor, and
eventually for a while, they say, Look, as a result
of this case in seventeen sixty nine, if you are
an author, you get to control what you get to
control the results of your work, right, you get to
(19:39):
control how what you made is used. And then that
goes into a more philosophical argument to whom does a
work of art belong? Does it belong to the creator,
does it belong to the audience? Does it belong to
the guy who buys it? I went to the Samurai
exhibit in the highchool. Dude, it is cool, but they
(19:59):
have so much stuff and there's a thing that freaked
me out a little learning about the proprietors. It's a
third generation art collector. So it's like this guy is
this son and grandson of full time art collectors and
this is such a small piece. Their full museum is
in Dallas. I suspect oil money, but like, does does
(20:20):
that stuff belong to them? And then or does it
belong to you know, they bought it. It's interesting.
Speaker 2 (20:25):
Belong is also sort of a bit of a you know,
black box or a gray area kind of term, like
it belongs to the reader in terms of the way
they interpret it with their imagination. But it doesn't belong
to them, and that they can just like republish it
under their own name and then expect to collect residuals.
Speaker 1 (20:45):
You know.
Speaker 2 (20:46):
So, I mean it is a philosophical conversation, but it's
also like it again goes into how do you use
your influences as a creator, Like are you truly you know,
creating something new based on or influenced by something old
or is it so derivative that it is you know,
essentially plagiarizing. And and also there's like a whole you know,
(21:09):
industry based on creating derivative work and not in the
legal sense. Derivative works is an ip ternament of itself,
for like making a book, you know, out of a
TV show or vice versas, you know, adaptations like the
catch All.
Speaker 1 (21:22):
There is derivative work.
Speaker 2 (21:23):
But you know, there's the whole concept of mockbusters, you know,
where it's like instead of transformers, it's transmorphers. And they're
basically banking on the fact that some people might not
know the difference and rent the bad one, you know,
or the cheap one. It's I believe it's called the Asylum.
This is a company that makes these kind of you know,
instead of snakes on.
Speaker 1 (21:42):
A plane straight some train. But they probably are.
Speaker 2 (21:47):
They've got legal representation who are telling them just how
far they can push.
Speaker 1 (21:52):
That line, like the Revengers instead of the Avengers. These
people ran the back aisles a blockbuster for many years.
Correct what we know about intellectual property or the way
it works out today, even though it does sound kind
of ridiculous and you can't get in ridiculous situations with it.
A lot of it comes from the United States, which
(22:14):
makes sense because one of the biggest US exports is
of course culture right movies, film, TV ideas, and the
IP system in the US comes from that Statute of
Monopolies I mentioned earlier sixteen twenty three, and it still
says the same thing. You get exclusive right to your
work for a limited time. This comes into something called
(22:39):
the Massachusetts Body of Liberties thanks to a guy named
Nathaniel Ward of Ipswich in sixteen forty one, and he said, look,
we're not going to allow anybody to have monopolies, but
if you make a new invention and it's overall something
that we all think is a good idea, then you
can have some exclusivity for a short time. The first
(23:02):
guy does this is a guy named Joseph Jenks Sr.
Which sounds weirdly Appalachian to me. He has given a
fourteen year patent for the invention of not the first
water mill engine, but a faster one. And they're like, hey,
good job, Joey. You know fourteen years, bro, you just
run with this. Let those ponies run. And then the
(23:25):
first American copyright goes to a Massachusetts printer named John
Usher just a few decades later, sixteen seventy two. Interesting
from Massachusetts.
Speaker 2 (23:35):
I spent a little bit of time over the weekend
watching a Criterion Channel collection of Roger Corman films adaptations
of Edgar Allen post stories, which is also interesting in
terms of intellectual property because those stories, you know, by
the nineteen sixties, I believe, were in the public domain,
so I don't think you had to pay any licensing
(23:56):
fees to do adaptations of them. And Roger Corman was,
I mean, not notorious is the wrong word, but just
was very much known for being a very frugal filmmaker.
And if you watch some of these, I think they're fabulous.
They all star Vincent Price, some of them reuse shots
from previous ones and The first two are The Fall
of the House of Usher, which is with this guy's name,
(24:16):
John Usher, the printer that you're talking about.
Speaker 1 (24:18):
A lot of these stories are based in.
Speaker 2 (24:19):
And around the Boston area in Massachusetts, so Usher is
this family that's supposedly cursed, you know. But my point
is the first two movies, The Pit and the Pendulum
and The House Fall of the House of Usher, are
both set in like the same kind of decrepit mansion
with the same kind of misty exterior shots that are
(24:40):
clearly like matte paintings and stuff, and both of them
sort of borrow shots for one another. But I actually
found them completely delightful. Little sidebar, but I just I couldn't.
I couldn't pass up a chance to talk about the
name Usher and the fact that there's this whole old
English kind of lineage there in Massachusetts around this time.
Speaker 1 (25:00):
Sense that Massachusetts would be sort of the origin point
for a lot of this legal thought because it's an
early colony, because there was so much money and so
much innovation in the area at the time, and they
weren't alone in this race. They weren't the only people
who were trying to figure out how to get their
heads around protecting ideas. A lot of colonial governments gave
(25:23):
patents and copyrights throughout the seventeen hundreds. Typically, though, these
were made as special one off acts of legislation and
they got passed on request, kind of like you get
guacamole on request. I call it the guacamole rule. So
if you invented something, you would have to go to
your local government and say, hey, lock this down, make
(25:46):
this exclusive Rhode Island. What are we anyway? These grants
typically all had the same strong commonalities. You can see
all you can see all sorts of early examples of this,
like Peter Rard in South Carolina sixteen ninety one gets
a two year patent for a rice husking machine he invents.
(26:09):
Rhode Island gives somebody a ten year patent for the
manufacturer of soap, and this continues through all kinds of stuff.
The Revolutionary War happens, fast forward, fast forward, and people
still want to protect ideas. Massachusetts is one of the
first to do this. When the US is newly formed,
(26:31):
they make their state constitution, and Massachusetts puts protection of
ideas in their constitution, which is pretty cool. Other states
didn't do that.
Speaker 2 (26:42):
Yeah, it makes sense because, like you said, a lot
of these early cases were centered right there, and that
really was kind of the seat of innovation in the
country at the time, so it makes sense they would
have kind of led the charge. And Massachusetts and the
Boston area obviously still continues to be a very important
side of academia, you know, for medical innovation.
Speaker 1 (27:03):
Sure, yeah, absolutely so, even though it was ad hoc
in a lot of other states outside of Massachusetts, they
still have the same commonality. You get exclusivity, but you
don't get it forever. And then as people in the
(27:25):
newly formed American States started traveling more and more states,
as it became more of an actual country, the need
to make the uniform IP legislation became mission critical. So
a lot of people, including authors like Noah Webster, started
lobbying the federal and state governments to say, hey, copyright legislation,
(27:49):
you guys, if something is if I wrote a book
in Georgia, then I should still be the guy who
wrote the book in New York.
Speaker 2 (27:57):
Of course, because I mean, obviously we're well past the
innovation of widespread you know, typeset printing and all you know,
so I mean, things are distributed far and wide, and
sometimes you know, thing these these sometimes they're smaller printing
operations like so like what we might think of today
as you know, more bespoke kind of presses or let's
say certain maybe record kind of companies that are smaller
(28:22):
that maybe make like high quality bootlegs or something like that.
You know, you certainly would have seen that. And if
there's no protection, then easily someone could just reprint your
work and sell it and make make money from it,
you know, and if there's no protection, then you would
have no recourse as the creator.
Speaker 1 (28:39):
Yeah, and that's that's dangerous because you know, this is
a full time job for these people, so if they
can't make a living off of it, then they can't
do it. That's one of the that's one of the
things that I think spurs the conversation along here. You
want to have a society where people can create culture.
(29:00):
And if you don't have that, if it's not possible
for them to do that, then eventually a society that
can create culture is going to is going to infiltrate
and kind of subsume what you think makes your society
its own thing.
Speaker 2 (29:15):
That's right, And I mean, you know, we're so easy
to romanticize the advent of the United States and all
of that and the Constitution.
Speaker 1 (29:22):
What it stood for.
Speaker 2 (29:23):
But I mean, there were a lot of things that
were very unique to it that it did stand for.
And these types of protections that you know, sort of
created the concept of the American Dream were kind of
you know, I guess, built into the language of the Constitution,
which is what made the United States sort of an interesting,
kind of like land of opportunity, right yeah, even if
(29:44):
it didn't always prove out to be that way in practice.
Speaker 1 (29:47):
Pursuit of happiness, correct, right, Yeah, I'm referring to that
beautiful line in the Constitution which basically says, you know,
go for it, do your best. Yeah it just just
give it the old college try so. In seventeen eighty three,
Congress passes a pretty important resolution about this that codifies
(30:10):
the idea of copyright statutes protecting an author's work for
not less than fourteen years. Within two years of this,
by seventeen eighty five, twelve of the thirteen states to
pass similar legislation. South Carolina is a little bit of
an outlier because they equated copyright and patent protections. They said,
(30:30):
it's an idea. It's kind of the same thing anyway.
You can just just to back.
Speaker 2 (30:35):
I mean, it wasn't exactly, you know, it's not like
one of the part of the Bill of Rights exactly,
but it was, you know, the language in the Constitution
was suggesting of this sort of protection. Left it up
to the states, but it seemed like it was already
at this point pretty important to most of them.
Speaker 1 (30:52):
Yeah, agreed. And here's the problem with this stuff, folks.
This is where things often get ridiculous. As anyone can
assure you. You can write all sorts of laws, you
put whatever you want on paper, that is not the
same thing as those laws being followed. And putting something
on paper doesn't make it automatically true. American intellectual property
(31:17):
protection was still a really tall milkshake, a crazy bag
of badgers for many years after state laws made it
really expensive and tough for people to make use of
these of these protections. Right, you would already have to
kind of be in the system. You'd have to be
kind of well to do. What I'm saying is, if
(31:39):
you were a sharecropper and you wrote an amazing book
of poems or meditations on agriculture, then you would have
a really tough time getting the protection that you were
guaranteed on paper. And the Constitutional Convention, to your point,
didn't talk about IP stuff until August other things to do,
(32:01):
and as soon as it came through, everyone agreed. They
were like, yeah, let's do. Yeah, that's fine, that's totally fine.
You know. Over there were fifty five people at the
Constitutional Convention. Over half had legal training of some sort.
Most of them were super deep involved, super deeply involved
in their state government. So they all had or at
(32:22):
least over half of them had some kind of rough
understanding IP law. So this wasn't a hot button issue
for them. It was something they could all agree on,
which is relatively unusual at any point in American governance.
Speaker 2 (32:35):
That's right, and it's it's it is a little confusing,
and I think that's evidence by my waffling on this.
I mean, there was a clause, an IP clause in
the Constitution that was written then after a lot of
this kind of state by state embracing of IP law.
But even though that that it was written into the Constitution,
(32:56):
it's still it was it was sort of imperfectly written,
I guess, so this whole state based system of intellectual
property protection kind of was a little bit you know
rough right.
Speaker 1 (33:10):
Yeah, I mean, okay, I say this with great affection
for the Constitution. It was a difficult documents, right, they
knew it was not going to be perfect. And a
lot of times if you read it, there's this vibe
of you know, make this happen somehow, so do your best. Yeah,
trust sure, product to that happiness, bro. So, like, the
(33:33):
US Constitution does have that IP stuff in there. It's
Article one, Section eight, clause eight. And all they say
is the gist of it is quote to promote the
progressive science and useful arts by securing, for limited times
to authors and inventors the exclusive right to their respective
(33:55):
writings and discoveries. So just somehow make that happen. That's
all the cost. It doesn't say how to do that.
It's just like all right also that and you know,
these guys already had a long day at the convention.
They've probably been arguing back and forth. Someone says, all right,
what about this part. We all know this one, and
everybody goes, uh, yeah, when's lunch, you know what I mean,
(34:17):
Just yeah, just knock it out.
Speaker 2 (34:19):
So once again hopping across the pond back to Europe.
We had countries such as Holland and Switzerland and Belgium
and Italy.
Speaker 1 (34:28):
That were modeling their.
Speaker 2 (34:32):
IP laws around what England had accomplished. It's interesting considering
that I believe England initially modeled their intellectual property laws
off of what was that, Ben, We talked about that
at the very beginning. Was it about like Florence off
of Florence, off of Italy exactly? So it's the circle
of life there once again. So you're starting to see,
(34:55):
you know, we have weirdly also seen Ben, if I'm
not mistaken, it's sort of areas, you know, country by country.
But in Europe there are some laws that are more
protective of intellectual property for creatives and for you know,
rights holders than we have here in the United States.
Speaker 1 (35:15):
Right sure. And then there are other countries where that
that dog doesn't hunt as they say, you know that
that leads to some very interesting situations in the In
mainland China, for instance, there are tons of Harry Potter
books that JK. Rowling didn't write. There are thousands upon
(35:38):
thousands of unofficial sequels because it's very much a reading
country to all of your favorite books in the West.
It's it's still doesn't there's non IP law that is
enforced uniformly across the globe, and is that a problem?
Is that something that does need to be fixed? What
(36:00):
does the future bring?
Speaker 2 (36:02):
Well, we did start to see, you know, some kind
of intellectual property agreements that were more globally sort of focused,
like the Burn Convention treaty, and also something called the
Trade Related Aspects of Intellectual Property Agreement or TRIPS, which
was nineteen which took place in as recently as nineteen
ninety four. So there is sort of an eye towards
(36:25):
you know, global enforcement of intellectual property taking place. But
that all just depends. It's sort of like it's toothless.
It's sort of like a lot of UN resolutions, like
you're not going to go to war over it. It's
sort of more like a play nice. Here's what we've
sort of agreed are the rules. But if you're not
participating country then, like you said with China or whatever,
then it's not really you know, relevant.
Speaker 1 (36:46):
Yeah, a lot of it is sort of Western or
European rules, and it's kind of it's weirdly similar to
the climate change debate. You know a lot of developing
nations say, well, you wrecked the planet. Why do why
are you pulling the ladder up after you and telling
us that we can't do the same thing to succeed?
Speaker 2 (37:05):
And so like you polluted more, so shouldn't you have
to you know, do more in terms of like carbon
credits and rings like that.
Speaker 1 (37:12):
Right, yeah, and you know, folks are gonna have to
personally agree with that perspective, but we do need to
acknowledge it exists. And with that we are calling it
a day. This is the end of part one of
our History of Intellectual Property episode. Now, we gave you
a lot of background, we gave you a lot of context.
Tune in for part two because this is when we
get to some even more ridiculous stuff, including some examples
(37:37):
of what happens when IP beefs get cartoonish. So thanks
as always to our pal, our super producer, mister Backs Williams,
Thanks to our research associate, doctor Z.
Speaker 2 (37:49):
Indeed, huge thanks to Christopher hasiotis here in spirit, Alex
Williams who composed of our theme, Jonathan Strickland, our very
own personal patent trol or just you know a troll.
Speaker 1 (38:00):
He's sort of more of a bridge troll type figure than.
Speaker 2 (38:03):
A patent one, which we should talk about the concept
of patent trolls a little bit.
Speaker 1 (38:07):
We certainly mentioned in the.
Speaker 2 (38:08):
Past, but look for a little bit more of that
kind of talk in episode too.
Speaker 1 (38:13):
I'm taking out a patent on the letter E. We'll
see you next type folks.
Speaker 2 (38:25):
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Ridiculous History News
Hosts And Creators
Ben Bowlin
Noel Brown
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