It would be so nice if something made sense for a change....

“It would be so nice if something made sense for a change.” Alice in Wonderland (& DD in the first eight pages of Benkler).

This week we are again reading from The Wealth of Networks: How social production transforms markets and freedom by Yochai Benkler. Chapter 8 begins with a forced march in a dark forest; take from me, the first third is a nearly impenetrable treatise on modern culture and political meaning that boils down to ontological nihilism. Suddenly, a ray of light through the canopy and Benkler tosses us an interesting proposition—Mattel’s Barbie as metaphor for modern culture. It gets much better from there, but I'll get back to that in another post.


Benkler also introduces us to the Federal Trademark Dillution Act (1995) that incredibly served to protect trademark owners “…from any use that dilutes the meaning that the brand owner has attached to its own mark.” He goes on to note that “…It can be entirely clear to consumers that a particular use does not come from the owner of the brand, and still, the owner has a right to prevent this use.”*  Sticking with Barbie for a moment, I believe this was the grounds on which Mattel sued an artist several years ago for making custom costumes for the doll that portrayed the icon in dire social straits that the manufacturer didn’t approve of—this in spite of the fact that the artist paid Mattel’s asking price for the dolls and then resold them (in extremely low volume) with the alternative outfits and makeup, clearly labeled as an aftermarket modification. The modifications disturbed the “meaning” that Mattel had crafted and marketed for Barbie.  Interestingly if not surprisingly, Mattel's protest gave the concept enough attention that others began to treat their poor Barbies in exactly the manner that the manufacturer protested.

Benkler’s justified concern is that “…this legal change marks a major shift in the understanding of the role of law in assigning control for cultural meaning generated by market actors.” More specifically, he is concerned that this may undercut the possibilities for new cultural examination, definition, and expansion made possible by new technologies in the hands of regular citizens.

The Electronic Frontiers Foundation** this week carried a report of a lawsuit in which the Omega Watch Company contested the right of Costco to purchase genuine Omega wristwatches overseas and then sell them in the United States at below Omega’s authorized U.S. price. Omega didn’t claim violation of any marketing agreement, but instead claimed violation of copyright. In essence, Omega asserts that copyright alone confers to them the authority to prevent Costco from legally purchasing genuine merchandise and then reselling it at a price of their own choosing. This theory seem to be the companion bookend to Antidilution Act mentioned above.

Together these arguments seem to reflect a (panicky) pespective that place corporatism above capitalism, the "big media" version of popular culture above the emerging one. You can buy it, but you can't resell it, change it, or improve upon it without our permission. These are strange times.


*Since Benkler's work was published, Congress enacted the Trademark Dillution Revision Act of 2006 to remedy confusion resulting from the FTDA.  Most germane to the issue at hand, the revised act substitutes a "fair use" defense for the "non-commercial use" defense in the original act.
**The EFF is a nonprofit organization chartered to champion the digital rights of individuals. Anyone concerned about the future of the World Wide Web and about the use of Web 2.0 tools ought to give them a look.