Imagine a job where you spend your days teaching, writing, and thinking about the legal issues posed by red-soled shoes, stand-up comedy routines, and football plays. Christopher Jon Sprigman—a law professor specializing in the study of the effects of legal rules on innovation and the deployment of new technologies—has that enviable job. He finds that creativity in such intensely innovative and imitative industries as fashion, music, sports, entertainment, cuisine, and open-source software tends to thrive best where intellectual property protection is least stringent.
Sprigman’s own career exemplifies the creative freedom he studies. As he moved from the United States to South Africa and back, and from law firm associate to high-flying law firm partner to basement-dwelling junior legal scholar to tenured professor at one of the country’s most prestigious law schools, he kept in mind the advice from a federal judge about the false allure of biglaw and the importance of charting his own path. To this career advice, Sprigman added his own self-admonitions: resist getting carried along with a tide that might cough you up on the rocks; and never invest so much of yourself in tokens of high status as to be unwilling to throw them away in order to pursue a more intellectually challenging direction.
Sprigman is the Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low at the University of Virginia School of Law. After receiving his BA from the University of Pennsylvania and his JD from the University of Chicago Law School, he clerked for Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit. He spent three years working on antitrust cases for Davis Polk in New York before moving to South Africa to become a visiting professor at the University of the Witwatersrand School of Law—while at the same time clerking for Justice Lourens H. W. Ackermann of the Constitutional Court of South Africa.
Sprigman served as appellate counsel in the Antitrust Division of the Department of Justice, where he worked on US v. Microsoft. After he was promoted to partner at the King & Spalding office in Washington, DC, he left practice to become a residential fellow at the Center for Internet and Society at Stanford Law School. He has published extensively in the area of popular culture and intellectual property, including a book, The Knockoff Economy: How Imitation Sparks Innovation (Oxford University Press, 2012), coauthored with Kal Raustiala.
Clare Cosslett: Why did you go to law school?
Chris Sprigman: When I graduated from the University of Pennsylvania, I considered a couple of things. I thought of getting a PhD in history and I thought of going to work for a newspaper. I had worked on the school newspaper at Penn and liked it a lot. While there were different ways that I was thinking about starting my career, it boiled down to the fact that Chicago gave me money and it wouldn’t cost much to go to law school. It actually cost very, very little. So I thought, “Well, I’m interested in this. It’s not clear that it’s exactly the right thing for me, but it’s pretty close to free.”
Cosslett: For most students, law school is such a big financial commitment that it’s tough to say, “Well, I’ll try it and see what it’s like. Maybe it will work, maybe not.”
Sprigman: Things have changed so much. The financial hit that students take these days is gigantic. It’s a different world. Students can’t afford to be casual in their thinking about law school unless their parents are very wealthy and willing to underwrite them. Just editorially, Mitt Romney said the other day that young people should take risks and they should borrow money from their parents if they want to. I wanted to laugh because that is ridiculous. Not everybody has parents who can shell out thousands of dollars.
My parents were public school teachers. They spent a lot of money putting me through college. They were incredibly generous. But I thought, “If I go to law school, and it doesn’t cost them that much, that’s good, right? I’m not going to put them in the poorhouse. They’ll have a decent retirement.” As teachers, they made a respectable salary, but certainly nothing fantastic. And they were getting older. It turns out their retirement’s fine, but not having to spend fifty thousand bucks a year to send me to law school was certainly helpful. And I was very glad that that was the case.
Cosslett: Once you got to Chicago, did you like it?
Sprigman: I suspect it’s changed a bit, but when I was at Chicago, it was very old-school, very formal. You knew you were someplace special. It was a tremendously talented, exciting faculty. The giants of the legal academy were teaching there at the time: Richard Posner, Richard Epstein, Cass Sunstein. And I felt like I got a great education. It was very demanding. It wasn’t always pleasant, but in retrospect, I’m very glad I went there. It helped to shape my intellect in a way that I think has served me well. It made me a bit more skeptical than I was. It made me very open to other people’s points of view. Chicago is known as a place where a huge diversity of viewpoints are actually listened to, paid attention to, engaged with. I thought intellectually it was a great place.
Cosslett: I’ve noticed that students coming out of University of Chicago have a strong business and economics orientation.
Sprigman: Starting in the late 1960s, Chicago began to stand out as a place where law and economics was very strong, and when I was there, they had a wonderfully deep pool of people who were leaders in this field. I was very interested in that. I felt that it was a valuable way of looking at the law. It made sense of some things that were otherwise very hard to understand. It wasn’t useful in every area of the law, but in the areas that I was most interested in, antitrust law and intellectual property law, it was extremely useful. With that set of tools, a person who comes out of the University of Chicago is very well equipped to be a valuable lawyer in areas where law and economics thinking can be helpful. That’s why I think you see that orientation. It has nothing to do with an explicit law and business orientation. It has more to do with the law and economics discipline overall.
Cosslett: Do you approach your teaching and writing from that same perspective?
Sprigman: I know law and economics has been a valuable tool for me, but a lot of my current work is skeptical of the classical law and economics approach. Much of my current work involves what’s called “behavioral economics.” I do experiments to examine how people actually behave when they transact in intellectual property, for example. And what you observe when you simulate human behavior in the lab is often quite different from what the theory tells you to expect if you design your experiments carefully, which I hope we’ve done, my coauthor Chris Buccafusco and I.
We have provided some reasons to think that the law and economics account of intellectual property is a little bit off. And I think at this point in my career, I’m in a position to test some of its foundations and to some degree, criticize it. I’m not an acolyte of law and economics. I’m both an intelligent consumer and a skeptic of law and economics, just like Chicago taught me to be a skeptic of everything else.
Cosslett: So you’re coming full circle and beginning to challenge the premises of their curriculum.
Sprigman: As wonderful as I feel the place is, they don’t have the final wisdom on anything. That is, it remains to be seen. But I have benefited enormously from having gone there.
Cosslett: After you graduated, you clerked for a year with the Ninth Circuit Court of Appeals.
Sprigman: I clerked for a very interesting judge named Stephen Reinhardt. He’s one of the giants of the Ninth Circuit and very much a liberal stalwart on that court. He was a fascinating person to clerk for, in part because he’s just an incredibly talented legal technician. He is someone who really knows what he’s doing, understands the craft of judging at a very deep level. But aside from that, he also—and this was something I found out as we went along—invested a lot in his clerks in the sense that we got to see up close a lot of what he was doing.
We got to learn through example how to make an argument and how to write that argument as effectively as possible. In a million different ways during that year, I was exposed to his talent at doing those things. I hope that some of it was absorbed in the process. At the same time, it was a lot of work. I worked very hard, and there were times where I felt overwhelmed. Looking back on that experience, it was great. I was very fortunate to do that clerkship.
Cosslett: When you joined Davis Polk’s New York office after the clerkship, did you know what practice area you wanted to get into?
Sprigman: I had a couple of ideas about things I might want to do—and this is where the hard part of my career started. I knew I wanted to do litigation. While a summer associate, I had done some corporate work and thought, “Well, this isn’t really what I want to do.” So I knew that. And I had done a little bit of antitrust, and was really interested in it. I had done a little white-collar criminal work, and had a good time.
I had also done some intellectual property work. I thought, “Let me start doing some work in these areas and see what I think.” At the time, Davis Polk didn’t have a lot of IP work, and so most of my exposure to IP came through antitrust cases, where there were IP issues mixed in. I started doing a bunch of white-collar criminal stuff, too. And what I learned over time was, for my taste, while the white-collar criminal work often had very interesting facts, after a few weeks they became mundane. And it seemed to me, the legal issues in the white-collar area had mostly been decided in favor of the government, and so the real trick was positioning yourself to negotiate a favorable deal. That wasn’t really what I was either interested in or good at.
On the other hand, antitrust is often much less glamorous, but theoretically much deeper. There are many more open legal questions where analysis and creative argument could actually make a difference. It fit with my law and economics training, so eventually I thought, “Well, that’s what I want to do,” and I started to focus more and more on antitrust and did a lot of different antitrust work. I did some merger work, some governmental representation, both the Federal Trade Commission and the Department of Justice. I did some civil nonmerger stuff, including a big franchising case. I got involved in a lot of different antitrust work at Davis Polk.
Cosslett: Did you ever see yourself going for partnership?
Sprigman: Not really. I liked the job a lot and there were some Davis Polk lifers I liked a lot, too, but many of the people that I admired the most had done other things. They had worked in government, for example. And I thought, “I’m not ready to settle down.” There seemed to be a lot of opportunities, and I thought, “Let me just see what comes along.” I was not in a rush to settle down into the rest of my life.
Cosslett: After three years at Davis Polk, you went to South Africa?
Sprigman: The woman I was with at the time was in a PhD program at Columbia. She got funded to do dissertation research in South Africa. And, somewhat oddly, I’d been doing some pro bono work for a South African newspaper, the Pretoria News, in cooperation with some South African lawyers. The newspaper had been sued for defamation. They had run a bunch of stories about this reclusive rich guy, the South African version of Howard Hughes, who’d been using his private air charter service, the paper alleged, to run weapons to the UNITA1 rebels in Angola, which was against South African law.
So this man turned around and sued the Pretoria News for defamation. Defamation law in South Africa had been a strict liability rule, much like in the UK, only without much of the UK’s protection—like strict liability run amok. The South African lawyers wanted American advice on whether they could make arguments that, by virtue of the free speech provisions of the new constitution, defamation law in South Africa had been limited by free speech interests the way it had been in the States, and whether this meant that the strict liability regime now had to be scrapped. So I had been working on that with the lawyers, and talking with the South Africans a lot, and crafting, as it turned out, a brief to try to convince the constitutional court that defamation law could no longer be a strict liability rule in South Africa.
Cosslett: That sounds like a big undertaking. Were there a number of lawyers working on this in New York?
Sprigman: No, there was a South African guy who was a good friend of mine by the name of Michael Osborne, who had a lot of connections in South Africa and who had pulled me into this. So it was Michael and me, and that was a great deal of fun. When the possibility came up for this move to South Africa, I made a few phone calls, and Michael made a few phone calls, and I was interviewed by a justice of the Constitutional Court, Lourens Ackermann, who hired me to be his clerk. Then I talked to the dean of the University of Witwatersrand Law School in Johannesburg, and she hired me to be a visiting lecturer. This all just came together in a couple of weeks.
Cosslett: This is pretty heady stuff for a fairly junior associate. You had four years under your belt at that point: a clerkship and three years at Davis Polk. You were pretty fearless.
Sprigman: You can apply for things and you can ask for things, and the worst thing that can happen is that people say no. If you don’t push for things, you never get anything. A lot of bright and wonderful people go into law, including many of my students, but they’re just too polite and they’re too coy. Fortune favors the bold. That’s just the way it is.
Cosslett: The most successful people do seem to be the ones who take chances.
Sprigman: You identify something that you think might be good, where you might learn something and that might be fun, and you just try to make it happen. And, surprisingly, sometimes it does. I applied for this clerkship and was hired. I applied for the teaching position and was hired. And it was great because the court and the university were a five-minute walk away from one another, so I had two offices. I essentially was working two full-time jobs. It was wonderful. I had a great year. I wrote an academic article with Michael Osborne, and then I wrote a follow-up a little bit later. Those were really interesting and fun to write. They sparked a little bit of controversy.
Cosslett: Ultimately, how was the case against the newspaper resolved?
Sprigman: Michael and I had worked on the First Amendment question, but the case ended up being dismissed because the Constitutional Court ruled that the constitution did not apply to a purely private dispute like a lawsuit between this Howard Hughes figure and the newspaper.
And Michael and I took a look at that and we said, “That’s incredibly interesting.” Our client didn’t win the case, but a very different state action doctrine has developed in South Africa starting in that case, Du Plessis v. de Klerk, compared with what had developed in the US—to simplify a lot, the decision of the Constitutional Court in the Du Plessis case meant that the South African Constitution would not govern private disputes, at least not directly. That isn’t what a lot of people expected would happen. Michael and I wrote an article describing that new South African state action doctrine and saying we thought it was a good idea and giving reasons why. That article got published in the South African Journal on Human Rights. We published a follow-up somewhat later in the South African Law Review.
Those articles did very well. People read them and some people liked them. Some people really didn’t. That was my first taste of academic success because I had written something with Michael that was interesting and creative and made people react, and made, at least for me, the beginnings of an academic reputation. The university offered to hire me full-time, and I seriously considered it, but eventually decided to return to the States, and it was the DOJ job that convinced me to return.
Cosslett: Had you taken a leave of absence from Davis Polk?
Sprigman: I left. I knew whatever happened, I wanted to do some work in government. I had spoken to a bunch of friends in DC about wanting to do that. While I was in South Africa, I remember sitting in my office at the court when I received an e-mail from a friend of mine, Mark Popofsky, a lawyer with whom I’d clerked on the Ninth Circuit. We hadn’t clerked for the same judge, but he had been clerking when I was clerking for Reinhardt.
He was at DOJ at the Antitrust Division working on Microsoft, and he e-mailed me and said they needed more people: “They want to hire someone at the appellate level. Are you interested?” I said, “Hell, yeah.”
I sent him a CV, and that day he started showing it to the relevant people. I had an interview a week later and was offered the job shortly after that. Again, it was just happenstance that probably the thing I was most interested in doing, DOJ needed someone to do, and I had a friend who alerted me to that fact. So the whole thing happened in the way that these things often do.
Cosslett: Was it particularly the Microsoft case that was appealing to you? Or was it working in antitrust generally?
Sprigman: I wanted to go to the Antitrust Division or to the Federal Trade Commission to do antitrust work for the federal government, but remember that at the time Microsoft was a case that meant a lot. It is hard to remember, but before 9/11, this was a huge thing. It was in the paper every day and the case was just chock-full of interesting and new antitrust questions. For anyone in the antitrust world, that’s what you wanted to be doing.
Cosslett: What was the level of your involvement?
Sprigman: When I got to the Antitrust Division, it was in the early stages of the Microsoft trial. I was an appellate lawyer, so I wasn’t working on the trial team, but one of my responsibilities was to watch as much of the trial as I could. Along with several other appellate lawyers, I started working with the trial team to deal with the legal questions that would come up during the trial.
We won in the district court, but we knew that there was going to be an appeal. One of the first things I did was to help write the brief requesting expedited appeal to the Supreme Court. The Supreme Court turned that down and we ended up going to the DC Circuit. I was one of five appellate lawyers working on this more or less full-time, and I was one of the lawyers who drafted the appeal brief that went to the Solicitor General’s office. The Solicitor General’s office is responsible for U.S. government briefs and oral arguments in the Supreme Court, but they were called in specially in the D.C. Circuit appeal in Microsoft because of the importance of the case. We prepped the SG guys for oral argument on a huge set of issues. There were lots of lawyers who got involved from the SG’s office and from the Attorney General’s office.
It was a great education because I was present to participate in the case. And a great privilege to watch the best lawyers and economists doing antitrust at that time.
Cosslett: It sounds like an exciting time to be in the Antitrust Division
Sprigman: It was. The Antitrust Division was at the center of policy at that time. When Joel Klein was the Assistant Attorney General in charge of Antitrust, it was a great place to be. I don’t think it’s been that way ever since. Things changed in 2001 when Bush took office, and it became clear that he was going to settle the Microsoft case on terms that the Clinton people would never have accepted.
Cosslett: Did a lot of people leave after George Bush was elected?
Sprigman: Yes, a lot left. I stayed for some months into the Bush Administration because I had stuff I needed to finish, but it was very clear that the Antitrust Division would be a very different place. And it was after the Bush people fully took control of it.
The Antitrust Division didn’t entirely go to sleep, but it was nothing like what it had been. The civil nonmerger docket just disappeared. That’s what Microsoft was—a civil nonmerger case. It wasn’t a criminal price-fixing case. It wasn’t a merger case. It was a Sherman Act civil case not involving a merger. In some ways, that’s the most interesting field of antitrust for people who are really interested in the analytics, although mergers are very interesting, too.
Civil nonmergers just went away. That’s where I had spent the bulk of my time. I had also done a bunch of mergers. In the Clinton Administration, there was a chance that if you investigated a merger, you would try to stop it. Under the Bush Administration, the habit was to investigate the hell out of things and then say, “Okay.” And that’s by way of making a show.
So I thought, “Well, it’s going to be a very different place. My learning curve is going to flatten out. My ambitions to do better and better work are going to be stymied. So let me see what else I can do.” And just to be clear: I have really liked being a lawyer. I liked what I was doing at Davis Polk. I liked my clerkships. I loved being at DOJ. It was really challenging and great. I have never faced the problem of, on a day-to-day basis, thinking, “Why the hell am I doing this?” I’ve always felt that what I’ve been doing is good for me to be doing. And that is a tremendous pleasure.
Cosslett: After the DOJ, you joined King & Spalding’s DC office as a counsel, and pretty soon after you were made partner. Tell me about your practice there.
Sprigman: I started working on a very interesting patent antitrust case involving both IP and antitrust issues. Our client was being sued in the International Trade Commission as well as in district court, so it was both an ITC proceeding and a federal litigation. It involved a whole lot of parties. It involved a lot of patents. There were some very interesting antitrust issues. I felt that, while I had moved from DOJ to a private firm, I had kept the level of work very high. I felt lucky to be doing this. I was working with smart people. I had a lot of substantive responsibility. They felt that they could make use of my DOJ experience. They felt that I had something to add rather than just billable hours. It was a really good setup.
Cosslett: Had you gone back to Davis Polk in a role as a counsel or eventually as a partner, do you think you would have had that same experience?
Sprigman: King & Spalding is a very different firm from Davis Polk. Davis Polk is one of those charmed firms in New York that has an incredible client list. Their culture is very egalitarian among the partners. Partners are paid according to their seniority. King & Spalding was more subject to the hurly-burly of the business. That said, I think for me there was, at the time at least, more interesting antitrust work to be done at King & Spalding. I don’t know what it’s like now, but then, the work was interesting and their antitrust practice was a DC-based practice, and I wanted to be in DC. And they were big enough in DC to be a credible player.
It was an interesting time. Making partner at the firm set off a bunch of thoughts about, “Is this it? Is this what I’m going to do for the rest of my life?” Be a law firm partner? A big law firm partner?
Also, there was, of course, the knowledge that I needed to develop a book of business, and that’s very challenging for young partners, at least it was for me. I encountered a lot of conflict issues at the firm. If I brought in a client, there was bound to be a conflict of some sort.
And I thought, “This is a tough situation. On the one hand, I’ve got to build my own book of business if I expect to do the sort of work that interests me. On the other hand, this firm, like any big firm, produces a lot of conflicts, and conflicts are hard to work around.”
Cosslett: And am I wrong in thinking, particularly in the antitrust area, the clients that you’d be looking to bring in are going to be pretty large companies?
Sprigman: That’s true. I was also doing IP work and had some smaller technology companies that were interested in working with me. And there were conflicts. Some of the conflicts were with major media companies that the firm represented. Were they willing were they willing to ask the current client for a waiver? Sometimes yes, sometimes no. But it just seemed to me that there would be a struggle, and it was not a struggle I was fully in control of, and one which, when it boiled down to it, I wasn’t really prepared to engage in. I wasn’t prepared to bet my career on being able to navigate that relatively narrow passage. Also, I was in DC. The center of gravity of the firm was in Atlanta. Culturally, I was not a perfectly comfortable fit with the firm. I felt that I had limited ability to control my own career, and I didn’t like it.
Cosslett: How did the opportunity at Stanford present itself?
Sprigman: There was a professor who had taught me in Chicago named Larry Lessig who had moved to Harvard and then to Stanford. I had stayed in touch with him, and I gave him a call and said, “I’m thinking about making a move into academia.” He said, “Oh, that’s interesting because when I came to Stanford, I negotiated funding for this center—the Center for Internet and Society—and I have a couple of residential fellows that I can hire: people who come here and get paid to write and to do a little bit of work on the center’s litigation. Would you be interested in that?” I said, “Well, yes. Let me come out and see you.”
So I flew out there, and I talked to Larry. I said, “This is a big move for me and I’d like to give this a shot because this would serve for me as a transition into academic life, but I’m at the stage of my career where I have a lot to lose. If I do this, I will show up in September. And I want to have a draft of an article by the new year and I want to know that you’re going to take a very close look at this and give me comments and help me to turn this into a good article, because I need you to know that I’m going to need help from you.” And Larry said, “Yes, absolutely. I’m on board.”
And I think the key was that I asked for something and I got it. And that made me feel comfortable enough that I would leave the partnership I had been given, that I would leave all the great things at King & Spalding and go sit in some tiny office in the basement of Stanford Law School and write. The plan was to go there, write a couple of articles, and then go on the market for academic jobs, which is what I ended up doing.
Cosslett: Did you have any moments of doubt when you got to Stanford?
Sprigman: Well, I went from young partner at King & Spalding to basement dweller. I spent my first day at Stanford trying very hard to get a wastepaper basket for my office. And I remember thinking, “This had better work out. People are going to wonder whether I have lost my mind.”
Cosslett: Why did you want to have your article done by the new year?
Sprigman: Because I wanted to get a first draft quickly so that I would then have time to make it better. The idea was I would have a draft by January. I would have until March to collect comments and implement them. I would submit it to law reviews in March, and I would go on the market in August.
Cosslett: And so this article was your entrée into being a professor?
Sprigman: Yes, this was the infamous job talk piece. And this is one of the most important things that a budding academic has to do. They have to write a paper that is going to get them a job. These days, an academic job is not just based on your pedigree. It’s really based on what you write. It used to be that law schools hired Supreme Court clerks because they thought, “Oh, these people are smart.” It turns out that a lot of very smart people aren’t really great at being academics because being a good academic involves a lot of creativity. Being a Supreme Court clerk may or may not.
Cosslett: And they might be great at writing, but not so great at teaching.
Sprigman: It’s typically the other way around. They tend to be great at teaching but not great always at writing. If you know the law and you’re pretty decent at conveying it, you’re probably going to be a good teacher. But being a good writer depends on being able to see interesting problems, being able to see interesting solutions. It involves creativity more than merely academic pedigree.
Cosslett: What was the subject of your article?
Sprigman: I wrote about something that I was interested in and talked about a little bit with Larry, which was the formalities system in copyright. There was a very big change in copyright in 1976 when they put the current copyright law into place. It used to be that to get a copyright, you had to claim it. You had to publish something with notice of your copyright. You had to register your copyright. You had to renew your registration after a relatively short period of time. And if you didn’t do all that, your work went into the public domain.
After 1976, you didn’t have to do any of that. If you fixed a creative work in a tangible medium, that is, you doodled something on a cocktail napkin, the minute you lifted your pen, it got a copyright, automatically, indiscriminately.
The point of the article was to figure out how that affected the copyright system. How did that change people’s incentives to create? How did that change the cost of licensing? Was that on the whole a good change or a bad change? That was the first article. And it ended up in the Stanford Law Review. It ended up getting me a job.
Cosslett: That transition from being a practicing lawyer to becoming an academic is a big one.
Sprigman: Well, the magnitude of the transition depends a lot on what you’ve done as an attorney. Even for practitioners, antitrust is a field in particular that is driven by scholarship. Scholarship is woven into what antitrust practitioners do much more intimately than in almost any other practice that I’ve ever seen. So for me, it wasn’t as much of a leap as it would be for others because so much of the thinking that you need to do in an antitrust case to be an effective practitioner is based on having a very good understanding of the current state of both the legal and the economic literature.
Let me give you an example. You’re an antitrust lawyer, and you’re helping an economist prepare expert testimony in a merger case. Now in order to be effective, you have to be a savvy consumer of the economics literature because you need to be able to help structure this testimony to present it to a judge or a jury. And you have to be able to understand it. If you’re the lawyer on the other side, you have to be able to critique it. The wonderful thing about antitrust practice is just how smart a lot of antitrust lawyers are and how involved they are in advancing the state of the art in the practice.
Cosslett: So tell me a little more about the Center for Internet and Society. What was Lawrence Lessig’s mission there?
Sprigman: Larry had been one of the architects of the Eldred v. Ashcroft case, the case that ended up in the Supreme Court challenging Congress’s twenty-year extension of existing copyrights. That case went against the petitioners. The twenty-year extension was upheld. When I got to the Center for Internet and Society, we were thinking about ways to capitalize on what we thought was good language in the case in terms of the ways in which the First Amendment would discipline or limit Congress’s copyright lawmaking power. We launched and litigated a couple of cases that were attempting to take advantage of some of the opportunities the Eldred case opened up.
Cosslett: Does the Center take the position that intellectual property laws should be curtailed because they somehow restrict creativity?
Sprigman: Intellectual property rights can be beneficial. They might help to induce investment in creative labor. So that’s good. They also have costs. To the extent that we overdo copyright, it inhibits others from building on what’s come before. So much creativity involves people building on stuff that is already there, and overenthusiastic copyright interferes with that. It also interferes with speech.
Prokofiev’s Peter and the Wolf, for example, has been in the public domain for a long time. Orchestras all around the country can entertain kids with Peter and the Wolf. Congress then comes along, takes Peter and the Wolf and millions of other works out of the public domain, and puts them back under copyright. So orchestras now can’t perform Peter and the Wolf without paying for the rights to do so.
Cosslett: Congress did this when? And why?
Sprigman: Congress did this in the late nineties. And so the question is whether there is any incentive effect? Is anyone, any creator, encouraged to create by the re-propertization or re-copyrighting of Peter and the Wolf? No, Peter and the Wolf has already been created. You can’t incentivize Prokofiev again.
Congress did this in order to accede to a trade agreement. They thought that foreign governments would treat American copyrights more favorably if they took this action. Now whether or not this is true is a long debate, but when Congress does something like this, it has First Amendment effects. It inhibits speech. Before, you could play Prokofiev’s Peter and the Wolf. Now you can’t without paying. That’s a burden on speech. It’s not as if Congress can’t burden speech, but when they do burden speech in this way, the First Amendment requires that a court take a look to see if the burden is proportionate to the benefit.
That was the simple point we were trying to make in a case called Golan v. Holder, which was one of our attempts to expand some good language in the Eldred case. We won in the Tenth Circuit and then we lost in the Supreme Court. So the bottom line is the courts are not going to take on the job of enforcing sensible First Amendment limits to Congress’s copyright lawmaking power. But what Larry has done is launch a much broader movement, one which I’m hopeful will ultimately lead IP law back in a more sensible direction, and will do so better and more durably than any judicial decision could.
The most important point is that people’s thinking about intellectual property has shifted tremendously. It used to be that people thought about intellectual property as a one-way street: it was all good. But there are good and bad parts of intellectual property. It can be both beneficial and harmful, like virtually anything. It can be great if you do it right. It can be terrible if you overdo it. And that consciousness about the costs and benefits, the tradeoffs in intellectual property, has really taken root.
You saw that just a few months ago in the online protests against those proposed IP laws, SOPA2 and PIPA3, which totally shut them down. You now have a whole generation of people who are aware that copyright can stimulate creativity and speech or inhibit them, depending on context.
Cosslett: Can you talk about what is going on now with regard to people downloading and sharing music?
Sprigman: Content owners are engaged in a process where they’re trying continually to make IP laws stronger in an effort to stop this. My view is the law is not going to stop illegal downloading—ever. What’s going to happen over time, and is already happening, is that the way that people make money from creative goods like music is just going to change. It’s going to be harder and harder to make money from the recording. You’re going to make money instead from the live show. And you’re going to make money from social networks that deal in this stuff. There’s a lot of ways other than the recording to make money off music.
The major record labels in the last decade have shrunk, adjusted for inflation, by about sixty percent. That said, while the record labels may be wounded, music is doing great. It’s a golden age for pop music in the midst of the record labels’ decline. The reason is that the music business isn’t dying; it’s just shifting away from the labels. And the calls for stronger intellectual property enforcement in the music industry aren’t really about saving music. They’re about saving the major record labels, which is a totally different proposition. So the connection between strong IP laws and strong creativity is weaker and more contestable than people think.
A book I coauthored with Kal Raustiala—The Knockoff Economy: How Imitation Sparks Innovation—makes just this point. We look at the fashion industry, cuisine, stand-up comedy, football plays, open-source software, financial innovations, and other areas in which there’s lots of creativity, but no or very little intellectual property. And for each of these areas we tell the story of how creativity thrives without intellectual property. We hope the payoff of the book is not just to understand these important areas of creativity, but to understand how industries like music or film—that have long relied on intellectual property, but find it more and more difficult in the internet era to do so—might restructure themselves to take a page out of the playbook of these low-IP industries like fashion or food or finance.
Cosslett: Can you talk about intellectual property issues in the area of fashion?
Sprigman: Kal Raustiala is a childhood friend of mine and teaches at UCLA Law School. He and I wrote an article together on the fashion industry. The point of the article was pretty simple. There’s a theory of intellectual property that says, “IP law, which controls copying, is there to incentivize people to invest in the creation of new things.” So if people are free to copy, then, the theory goes, originators will stop investing in the creation of new things. Well, that, in theory, makes a lot of sense. But take a look out there at how the world actually works—the fashion industry is huge: about a trillion and a half dollars worldwide per year. Two hundred billion or so in the States. It’s a very big industry. Much bigger than movies or books or music.
This creative endeavor—the making of new fashion designs—is not protected in the United States by copyright law because fashion designs are useful articles, and copyright doesn’t protect useful articles. So there’s no IP protection for the designs, and what you get in the fashion industry is what you might anticipate, which is lots and lots of copying. You get tons of knockoffs. More so than knockoffs, you get clothes that look similar—that are responding to and recognizably appropriating some particular popular design theme, but with their own take on it.
The point of our paper is not only does this copying not hurt the fashion industry, it helps the fashion industry. People buy clothes to stay on trend. What is a trend but a design that is copied, right? We know trends because there are lots and lots of versions of a particular favorite design. Copying helps create trends, and copying helps kill trends. When the copying goes too far, the fashionistas jump off and find the next trend. Fashion depends on copying.
Cosslett: What is the issue with the Christian Louboutin red-soled shoes?
Sprigman: That’s different. That’s trademark. Louboutin is arguing that that red sole serves as a source identifier, so that when people see that red sole, they identify that as a Christian Louboutin. It’s like the Nike “swoosh.” But Yves St. Laurent—that’s who’s being sued here—is saying, “We used a red sole on a red shoe, and when we use a red sole on a red shoe, it’s aesthetically functional. That is, it preserves the shoe’s all-redness, and so we cannot be held liable for trademark infringement.”
I think Yves St. Laurent is correct about this. Red soles on a red shoe are functional—they are necessary for the shoe to be red. And functional things are outside the domain of both trademark and copyright. Functional things are the domain of patent. I filed a brief to that effect with several other academics. Of course, by now you can’t patent a red shoe sole because it’s not novel in the way that patent requires.
Cosslett: That’s great. I love the idea of academics writing about red-soled shoes.
Sprigman: Someone said to me once that my career as an academic has involved more things that people like and think are fun than most other people’s careers. I spend my time thinking and writing about the fashion industry, and about cuisine, the stand-up comedy world, open-source software—which is actually really fascinating—financial innovations, and that kind of thing. All of the areas I study are areas where there’s a lot of creativity, but for one reason or another, not a lot of intellectual property. How did that happen? And do these areas have lessons for industries like the music industry, where there’s lots of IP, but it’s not really doing them a whole heck of a lot of good?
Cosslett: Can you talk a little bit about stand-up comedy?
Sprigman: Copyright, at least at the theoretical level, covers jokes. But for a variety of reasons, it’s actually very difficult to protect your joke against appropriation by a rival comic using IP law. One reason is copyright covers expression, but it doesn’t cover ideas. So anyone can take the idea behind the funny joke and just express it a little bit differently, and escape copyright. So, what do comedians do? Well, my UVA colleague Dotan Oliar and I interviewed a lot of comedians, and we wrote a paper in which those comedians describe their own private IP systems. They have a system of norms that stand in for the law and they have a community project that detects and punishes joke stealers. This isn’t legal punishment. It’s group sanctions, private sanctions. It’s the comedians’ version of Lord of the Flies, although a lot less violent.
Cosslett: What’s a comedic sanction?
Sprigman: Badmouthing. That’s where it starts. A lot of people respond to badmouthing. If you’re a comedian and you’re working in the clubs, you’ve got to be around other comedians five nights a week. You don’t want to be around a lot of people badmouthing you and giving you dirty looks. So that kind of social pressure keeps people honest. And then if it goes beyond that, you’ll get group boycotts. You’ll get refusals to appear on the same comedy bill as someone who steals jokes. And for comedians who are not huge stars who can call the shots, that can be a very painful sanction.
And then, very occasionally, you have comedians beating other comedians up. That’s the last resort. The last resort can be someone gets punched in the mouth. That’s not great, but it doesn’t happen very often. Really, the norm system, without beating people up, keeps most comedians very honest. It provides enough protection against comedians taking their colleagues’ jokes that comedians have a perfectly adequate incentive to invest in the creation of new material without copyright law playing any new role.
Cosslett: So if you have a peer group that can exert sufficient pressure, then the absence of law is not going to make a difference?
Sprigman: Let me give you another example of the relevance of community norms to inhibiting piracy. The music industry is going through a phase now where there’s so much different music being produced and there’s so much easy communication between bands and their fans that the market is changing in ways that make governance by norms more possible. It’s disaggregating into smaller and smaller groups that are yet more and more connected. It looks like there will always be a few big stars. But because the cost of creating and marketing a record and the cost of communicating with your fans has fallen so enormously, there will probably be more of a music middle class where artists have an audience substantial enough to make a career. They’re in communication with this audience.
It’s precisely under these kinds of circumstances where norms can actually do some work. If there’s a community built up around a musical group, you might get norms about copying having some effect. Take all the bands like the Grateful Dead that make up the jam band genre. Most of these bands deal with their fans in much the same way. They have studio albums that they copyright, but they allow fans to make live recordings of their shows and to share those freely. What you get is fans feeling that there’s a set of norms that are reciprocal. The bands have given them access to the live shows. On the other hand, they reserve copyright on the studio recordings. Because there’s reciprocity, the jam band community polices piracy for themselves. So you can imagine the music industry becoming more like the jam band genre and more like stand-up comedians. They would be more reliant on norms than on law.
Cosslett: What are the intellectual property issues specific to open source software?
Sprigman: Open source software doesn’t depend on the IP system. Programmers who work on open source projects do so for a variety of reasons. But one thing these projects have in common is that everyone expects that they will not use a copyright on the software to deny access to others. Open source software code is distributed via a license that allows the user to freely copy, modify, and re-distribute the code. But only if the user agrees that any changes he makes will be available on the same basis. These licenses turn copyright on its head, encouraging copying and blocking ownership. And yet, there is great creativity in the open source world. Mozilla Firefox, the world’s second largest browser with over 150 million users, is open source. So is the Linux operating system, which is running on about 25 % of all corporate servers. Over half of corporate servers run Apache, the open-source Web server software. And these are just a few of the many thousands of open-source projects.
Cosslett: Your students must love this
Sprigman: I teach copyright and trademark. I don’t spend a huge amount of time talking about my research because, unfortunately, the amount of material I need to get through in a semester is so unbelievably huge that it’s a struggle just to get them acquainted with the black-letter rules of copyright and trademark.
Cosslett: Maybe after class you should have coffee and get them thinking about the stuff that’s probably much more relevant to their lives and is certainly more fun. Do you love teaching? Do you ever see yourself going back into private practice?
Sprigman: Being an academic is only partly about teaching. What I try to do is to advance knowledge. That’s my job, right? My research is at the center of what I do. That said, I also care a lot about teaching. I want to be a good teacher. I want my students to benefit from law school as much as possible.
As a whole, my job is great. It’s about the best job I could imagine. I have a tremendous amount of freedom to think about the things that interest me. It’s a real privilege to be able to have control over my own life, over my own day-to-day. I can have a voice on some issues that matter to me. Getting into academia is really difficult—so, if you do it, typically it’s because you really want it. I liked lawyering, but at the moment I can’t imagine doing it again full-time.
Cosslett: What would you give by way of career advice to law students or practicing attorneys?
Sprigman: The biggest thing I learned really doesn’t have anything to do with getting into teaching. It just has to do with your attitude about your career. All the smart people I knew who did really well in school, and then did really well in college, and then did really well in law school, they were all alike in a way. And how where they alike? Well, you do well in school by doing what you’re told. But, that is not how you do well in life.
The biggest difficulty for students when they actually begin to work as a lawyer or really work as anything is transitioning from doing what they’re told, which is how to excel in school, to doing what they want, which is how to excel in life and at a career. That involves learning how to tell people, “No, I don’t want that. I want this.” It’s easier to do if you have some clear idea of what you want. And part of understanding what you want is having a questing disposition. Not just taking what comes along, but being open to things and reaching out for things that you think might be interesting, and then being hardheaded. Asking yourself, “Did I enjoy this?” Really paying some attention to what it is you like and what you don’t like, and acting on it.
What leads to success between the ages of five and twenty-five for people who go to law school? You have assignments, you’re organized, you do the assignments the best you can. That leads to success. In school, you never say to the professor, “I don’t want that assignment. I want some different assignment.” But when you get to a law firm, it’s very important to be able to say to your employer: “I don’t like that assignment. I want a different assignment. I just spent a month in a windowless conference room doing a document review. I don’t want to do another one. In fact, I’m not going to do another one for the next six months. I’m going to do something else.”
Cosslett: That takes a very bold associate to do that
Sprigman: Well, then nut up. Seriously, because if you don’t do that, you are going to get carried along with the tide. And getting carried along with the tide might cough you up on a really nice place, or it might cough you up on the rocks.
Cosslett: Lawyers who have identified success with acceptance by a series of institutions may have difficulty in thinking outside the box when it comes to careers.
Sprigman: I went to public school through high school—there were very good public schools in Smithtown, Long Island, where I grew up. I went to Penn for undergraduate and I really loved it, but I don’t have a Penn sticker on my car. I don’t identify with institutions in that way. Most of my family were working-class immigrants. Not my parents, but my grandparents’ generation.
I have this one memory that I think is so illustrative of why I am the way I am. I was in law school and I had gotten this clerkship on the Ninth Circuit, and I was extremely excited. I was at a family gathering in New York, and my Uncle Mike was there. You have to understand my Uncle Mike was a World War II veteran. He’s passed away now, but he was the salt of the earth. The loveliest, most genuine guy. And he said, “So, have you decided what you’re doing after law school yet?”
And I said, “Yeah, it’s really great. I’ve got this federal clerkship. I’ll go to Los Angeles and I’ll work for this federal judge for a year. I’m really excited about it.”
And he was puzzled by this—I don’t think he understood why I’d want to take a job that lasted only a year. I think he thought I was desperate. He put his arm around me and he said, “Don’t worry. You’ll get a job.”
What I was doing, in his mind, was making the best of a bad situation—trying to be excited about some non-job. And I thought, “I love my Uncle Mike, and if that’s what he thinks about it, then it’s not the end-all and be-all of my life to jump through these hoops. What he wants for me is for me to have a good job so I can raise a family and so that I can pay the bills. That’s what he wants for me—and frankly, what I want for me. And all this other stuff: yeah, it is great, but it’s not me.”
I would add that there are a couple of traps that people fall into, and these are things that limit people’s ability to follow their instincts and to take chances that make for an exciting, fulfilling career. They are probably pretty obvious. One is money. I didn’t come from a lot of money and I like money. But I didn’t like it enough that I was going to make important career decisions based primarily on money. I make a lot less now than I would have made had I stayed at a law firm, but that doesn’t really matter too much to me. I make a perfectly adequate living. I never wanted expensive things enough to suffer for them. So that’s one very significant and very basic thing.
And then the other thing is authority. Young lawyers often tend to take instructions. My judge, Judge Reinhardt, said something to me when I was leaving chambers. He said, “These people in law firms are not your family. There might be people at the law firm who tell you that the firm is a family, and you’re part of it. They’re not your family. You’re in business with them. And they have their own agenda, which may not coincide with yours. You’ve got to be really mindful of what they want you to do and whether doing it produces some long-term gain for you or whether it’s just wasted time.”
And I remember thinking, “That’s absolutely right.” I always had this voice in the back of my head. It was Stephen Reinhardt’s voice saying to me, “Chart your own path.” And this was someone I respected enormously, and he’d done exactly that with his life. It struck me that here was a guy who had been in a law firm, who’d had his own law firm, and who was a federal judge. He had been around the block, and I thought, “He’s telling me this for a reason.” He called me in specially to tell me this and it wasn’t as though he was sending me out in the world saying, “Go get them, Tiger.” It was more like, “Watch out.”
Cosslett: Well, it sounds like he gave you some really good advice and you were smart enough to listen.
1 National Union for the Total Independence of Angola.
2 Stop Online Piracy Act
3 PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act)