Disclaimer: This has nothing to do with Chubbies shorts at all. I’m simply using the shorts as an analogy.

As a law student, most of my experience with the intellectual property regime has been fairly removed and abstract. But I also happen to have an awesome big brother who is a genius of a businessman. His new business was doing stunningly well, although, he recently got sued. Why? Another company is alleging he has infringed upon their intellectual property.

Chubbies_short_shorts_for_menI was never certain where I stood in the whole IP debate, and I am still not certain where I stand now. But, with one phone call, my brother made me realize that there are serious problems with our current approach to IP. Indeed, there are some forms of “intellectual property” that cause a hell of a lot more harm than good.

Struggling to find something to compare my brother’s situation to, I landed on Chubbies shorts as being a pretty great analogy. Chubbies, the frattiest thing known to mankind, are in pretty hot demand. Now, let’s say my brother — who we can imagine as the model of a frat boy — saw an opportunity in creating his own brand of short shorts.

Since he has pretty good business sense, he made sure to roll out his own brand of shorts in time for Christmas sales. Turns out Chubbies, the brand everyone wanted to put under the tree, couldn’t meet demand, so my brother’s shorts were right there to pick up the slack and he did pretty well for himself throughout the holiday season. Fear not, for he made everyone’s Christmas wish for short shorts come true… and better yet, for half the price. After all, it is always fun to imagine your favorite frat boy donning a pair of Chubbies on christmas morning…

Shorts (and even very short ones) have been around since long before IP law was ever thought of, so one would assume Chubbies couldn’t possibly be putting patents on very short shorts and running around suing anyone who dared to make shorts short again. Unfortunately, that is exactly what happened to my brother.

Obviously, the story has been changed, but the message remains the same. Why the hell should a company with a basic product be allowed to sue a competitor who provides a similar good for half the price? Especially if the first person to make short shorts popular again wasn’t able to meet demand?

At this point, the court has two options…

Through Door #1, grant Chubbies the power to monopolize the market though IP, even though they clearly didn’t invent short shorts. This would ensure that only the richest frat boys would be able to show off their thighs! And I am not sure about you, but if other men who have nice thighs and want to wear short shorts are not able to get their hands on a pair, then that seems like a crime against mankind….

3e6bff3bf4a0c7da7521b38cadec3f9bNow, through Door #2, deny Chubbies the power to monopolize the market. Pointing out that shorts are shorts, and short shorts are not exactly something new. (Ahem, the 60’s anyone?) Now everyone has the opportunity to buy short shorts, and those with more money can choose Chubbies over my brother’s brand.

Door #1 lends legal support greedy corporations, whereas Door #2 suggests that it is best to trust in Mother Market. If we let greed win, then goods that are in hot demand and easy to reproduce become prohibitively expensive. On the other hand, if we leave it in the hands of the market, everyone is able to have their shorts.

Door #2 is a path more in line with liberty. And, while I’m still not sure that all intellectual property regimes look like the terrifying land beyond Door #1, it’s easy to see that in this case, IP holds the market back and creates stagnation in innovation. So, if you are confronted with holding open one of these doors in the future, I can only hope that you will have the courage to open Door #2, the door to freedom, the door that leads to so much more than monopolies on things as common and necessary as sliced bread (and short shorts!).

Although, I must admit, I almost wish UGG had won whatever lawsuit they undoubtedly started… Then we would only have to be plagued by one source of moon boots every winter season.

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