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Copy cats and robotic dogs
What lawyers can learn from comic books.
By Lawrence Lessig
January 10, 2003
http://www.redherring.com/insider/2003/01/copycats011003.html

Everyone knows that the Japanese are a bit obsessed with graphic novels,
better known as comics. Forty percent of publications produced in Japan are
comics, which provide 30 percent of Japanese publishing revenue. But the
comics, or manga, market in Japan is divided into two types: one is purely
(or as pure as one can get) original work; the other is "amateur" or copycat
comics, which develop the work of original artists in different and
unauthorized ways. This second kind of comic, called dojinshi [doh-GIN-she],
is a huge and growing market in Japan. Dojinshi conventions are among
Japan's largest mass gatherings, drawing more than 450,000 fans and 33,000
artists each year. And as comics move online, through the increasing
penetration of online games, the dojinshi market is only expected to
increase.


In an article published in the Rutgers Law Review this fall, Temple Law
professor Salil Mehra puzzles over an aspect of the dojinshi market that
would stump most copyright lawyers. Put most simply, dojinshi is illegal.
Under United States law, this massive copycat market would plainly violate
the original authors' copyright. Japanese law, Mr. Mehra shows, is not much
different. So what is it that accounts for this massive "theft" of the
creative work of original manga artists? Why is this "invasion" of the
"rights of creators" allowed?

Mr. Mehra's article is a brilliant effort to bridge a gap between two very
different perspectives on copyright and the content industry: the
perspective of lawyers and the perspective of business. Lawyers look at
copyrights as if they were ends in themselves; "violating" a copyright is an
unalloyed evil; the law should therefore stop such violations wherever it
can.

But Mr. Mehra, a University of Chicago-educated lawyer, looks at the
question from the perspective of business. For it seems clear, as Mr. Mehra
demonstrates, that this copycat market fuels for original manga art demand
that otherwise would not exist. The "use" of this copyrighted content
therefore benefits the original author.

The reasons are clear enough: in an attention economy, the key is to capture
customers and keep them focused. The dojinshi market does exactly that. Fans
obsess; obsessions work to the benefit of the original artist. Thus, were
the law to ban dojinshi, lawyers may sleep better, but the market for comics
generally would be hurt. Manga publishers in Japan recognize this. They
understand how "theft" can benefit the "victim," even if lawyers are trained
to make the thought inconceivable.

There's a lesson in this example that executives in the content industry
should think about before they sign away their businesses to lawyers. The
law is a rough-edged tool. It was not crafted by geniuses of economics. How
it affects new and different markets is uncertain. A smart business
therefore asks not whether the use of its content is "theft," but whether
the use of its content will (eventually at least) benefit it. The business
of business is to make business, not to purify the world of copyright
violations.

Lawyers (save those from Chicago) are not typically trained to think about
the business consequence of their legal advice. To many, business is beneath
the law. When a Sony lawyer threatened a fan of the company's Aibo robotic
dog, who had posted a hack online to teach the dog to dance to jazz, he or
she no doubt never thought to ask exactly how making the Aibo dog more
valuable to customers could possibly harm Sony. Harm was not the issue, a
violation of the Digital Millennium Copyright Act was: consumers should be
banned from hacking Sony dogs, whether or not it was to Sony's benefit.

Management should begin to demand a business justification for copyright
litigation. How does this legal action advance the bottom line? How will it
grow markets or increase consumer demand for our products? Will calling our
customers criminals increase consumer loyalty?

The point is obvious once you see it, but it's humbling how long it takes to
see. At a dinner in Tokyo at the end of October, I described Mr. Mehra's
puzzle to Xerox PARC's chief scientist, John Seely Brown. He and I both have
written extensively about the content industry, and have both applied Clay
Christensen's "Innovator's Dilemma" to understand its slowness to adopt new
technologies. "But this may not be an innovator's dilemma at all," Mr. Brown
told me. As Susan Haviland, an architect and Mr. Brown's wife, said to him
that morning, it is more likely a blinkered-lawyers syndrome: businesses
that have forgotten their business, and have instead been taken over by
their lawyers.

It is a great point--that sadly takes a nonlawyer to see.

Lawrence Lessig is a professor at Stanford Law School.

Write to Lawrence Lessig.




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