I think the most common argument I hear against IP protections for software is that so much of it is obvious, or incremental. We have companies patenting and suing over techniques which are considered common knowledge by many programmers. How silly was it that Oracle's recent huge lawsuit ended up hinging on a range check function?
But is that the same as a masterful magic trick? And if not, should we treat it the same?
I don't think it's the same thing at all. A master magician might easily spend years practicing a trick -- the right mechanics, the right theatricality, anticipating the audience response, coming up with some new illusion -- and then, as the article describes, if that trick is self-contained enough, someone else might see it and work out how it's done and then sell the same trick to people who haven't invested anywhere near as much effort in practicing it.
So I don't think that we can say, well, this is just like software, it's an idea, and therefore we shouldn't protect it. I think that the very idea behind IP laws in the first place was to protect effort -- to safeguard someone's livelihood if they spent years developing an idea, so that someone else wouldn't simply come along immediately afterward and usurp the idea and rob that person of all of the effort that they invested in developing it.
There's this huge difference in effort between writing simple functions in software and developing masterful magic tricks, and we should recognize that.
Nor do I think that Penn & Teller are at all guilty of hypocrisy. I think it's enough to have just seen some episodes of Fool Us to see that they can have huge amounts of respect for magicians who copy their tricks, so long as those magicians add something unique to it. That's all they ask: take what we do, and do it better.
I can not imagine defending the reverse engineering and subsequent sale of someone else's unique illusion under the umbrella that "software patents are bad".
I am somewhat more dismayed that the article seemed to present a good enough case for this all on its own, but the discussion so far is ignoring it -- almost as if everyone just skimmed it.
Just because something takes effort does not mean it should be protected. Just because a person could make more money by having exclusivity does not mean that thing should be protected.
I haven't thought about the issue of magic tricks enough to know what I think about it, but I definitely resist the notion that something should be protected simply because it took work to create. That way leads to a society where everything is pay-per-view. For example, just because I scan an old book doesn't mean I should own a copyright on the scan.
For example, just because I scan an old book doesn't mean I should own a copyright on the scan.
Just to play devils advocate, why not? Wouldn't that result in many more old books being scanned that otherwise wouldn't be? Wouldn't competition force down the price of the popular old books?
That's a backwards way to look at it. Copyright is a very powerful protection, we sacrifice a lot for it (look at all the creativity that's still going on around Sherlock Holmes, or in illegal fanfiction for more recent works, and think how much more creative expression there might be if more cultural icons were without copyright). The bar to justify extending copyright to something new should be set high; I'd rather risk having fewer old books scanned than have someone unable to make a new creative work because he'd got the idea from a scan of an old book that turned out to be copyrighted.
>the very idea behind IP laws in the first place was to protect effort //
The idea from the point of view of the populus is to encourage innovation and open cultural expression. A corollary of that is the protection of livelihood of creators/inventors if that is required to support the general aims.
So are illusionists who're creating innovative cultural expressions of their art ceasing to create for want of funding and because others are following their lead? Or are such illusionists who create, model and use novel illusions able to generate a reasonable return for that good without additional IP protection and thus with the addition of such works entering the public domain at the earliest possible point.
[I concede I've not read the article yet (shock!) as it was blocked for me].
Part of the article discussed a "trick inventor" who's pretty much stopped coming up with new ones in favor of other things, like writing about the history of magic, since it's reaching the point where he couldn't make a profit on it:
"Invention is all fuzzy, sloppy stuff," Steinmeyer says.
"I have patents, and I have had patents that have expired.
Everything has a limited lifetime. But when a person can't
make a living by coming up with new material, that's when
you have to wonder about the system. I would say that over
the last few years, the last ten years, it's a net zero.
I'm putting as much money into it as I'm getting out."
Jim Steinmeyer is the man. (http://www.jimsteinmeyer.com/) Much of the magic world is divided into two jobs: people who design tricks and people who present them to the audience. Both are difficult and respected positions. Jim is one of the very topmost people with the first job (Teller does both). In addition to his career as an illusion engineer, Jim also is a major scholar on magic history. His book, "Hiding the Elephant", is an awesome read.
Interesting, and particularly relevant to this discussion, is the fact that "Hiding the Elephant" spends a fair bit of time going over probably the single most famous theft of magic in history: when American magician Harry Kellar stole the British magician John Maskelyne's "The Entranced Fakir" levitating woman trick. Kellar bribed one of Maskelyne's stage magicians, Paul Valadon, to obtain the plans to the trick, and then used the stolen trick to establish himself as maybe the most famous American magician of the time. His entire career in magic had been founded on plagiarism.
I am fine with the literary aspects of it being protected provided that the practical aspects are not, or vice versa. Of if Teller wants the practical aspects protected, he can file for a patent, providing directions for someone reasonably skilled in the art, to understand what he is doing.
What I am not fine with is this idea that IP is protected for its own sake. We need to remember that it is a quid quo pro, and not merely a reward for entertainers.
> I am fine with the literary aspects of it being protected
> provided that the practical aspects are not
I guess you're thinking along the lines of a playwright who sells scripts of her play, but cannot prevent people from performing the play (since they already bought the script)?
More along the lines that if you don't disclose how you do the illusion you can't prevent other people from publishing write-ups or selling kits to do something similar.
Then magic tricks can all be patented, and protected for the life of the patent. Interested amateurs can look up the patents, but magicians can rest assured that few in their audience will take that step. Seems like a perfect tradeoff to me.
I understand Teller wants to protect an idea he came up with
Given how much Penn & Teller built their careers on exposing the tricks of other magicians who had guarded their secrets for decades (and getting a lot of stage magicians made at the duo), it's pretty ironic for Teller to now decide he wants government protection for a trick of his.
Disclaimer: esquire.com is not working for me right now so I haven't read the original article yet; I'm basing this on your comment.
They do several tricks where they pretend to reveal what they are doing, revealing how the trick normally works I think, and then proceed to do something that makes it apparent that is not actually what they are doing.
They have a particularly gory version of sawing a woman in half for example. I think it is on youtube somewhere, pretty solid.
But yeah, I don't think you could say that they reveal tricks that "belong" to other magicians. They reveal the basic stuff.
(When Penn & Teller have famously exposed a trick, they've almost always invented a ridiculously poetic method and built the trick around it; by making their art seem more intricate than it is, they force the audience to assume that the rest of their tricks are equally complex. Penn & Teller's exposures are really part of an elaborate con.)
That doesn't carry for me. For example, the famous trapdoor expose is trivial. The complexity is in the song-and-dressing, which most their tricks have.
The Cups and Balls is a classic, and everybody knows, or can easily find out, how it's done. And then they take it and turn that on its head, by doing a routine around "we're going to show you exactly how the trick works, and still amaze you with it". Which is, well, magic.
And in general, a lot of their "exposures" follow that patten. They're much more about artistry and that kind of next-level thing where showing the "secret" doesn't detract from but in fact adds to the effect.
I never got the impression that most magicians cared that much for the actual trick. It's a performance art and some of there 'show the magic trick behind clear plastic' is just as interesting as the actual 'trick'. So, I don't know if this is really about protecting tricks as much as preventing bad imitations.
Did you read the article? That is not the same video or trick that Teller is suing over.
Article version:
> Against a crimson curtain, Bakardy had erected an easel with what looked like a large pad of white paper on it. Perhaps six feet in front of the easel sat a small wood table bearing a glass Coke bottle filled with water. That bottle also contained a single rose. A spotlight, outside of the camera's view, cast the rose's shadow on the paper on the easel. Dressed in a dark suit, Bakardy appeared in the frame carrying a large knife in his right hand. He sliced it deep into the rose's shadow. And when he cut into its shadow, something impossible happened: The corresponding part of the rose fell off the stem and onto the table. Petal by petal, Bakardy cut at the rose's shadow until that Coke bottle somehow held only a decapitated stem, which he removed as though to demonstrate the absence of wires. He then lifted up the bottle itself — still no strings attached — and poured out the water. Ta-da.
I read the article. I have followed the case when it was initially brought by Teller, and have read the legal documents he put forth.
It is not the same video, it is the same trick done with different patter, and feel. Sorry if that is not clear, I can tell by the reading the intention I was trying to convey was not the intention people got.
He reuploaded him doing the trick with different patter, not the same video.
Obviously I can't speak for Teller but based on the fact the reasoning he presents in the OP article would not apply to the linked video, I don't think he would have a problem with it.
The article specifically mentions treating a magic act as a performance and copyrighting it in a similar manner to a play - this video is a substantially different act to his. The video described in the article however is a straight rip-off.
However Teller does have a problem with it. He doesn't want him to sell the trick, and the trick that is occurring has nothing to do with the performance.
As other people have mentioned Penn & Teller don't have a problem with people copying their ideas & improving them or performing them in a different way.
The problem here is that the chap was then SELLING the trick for thousands of dollars, that's where Teller started to have a problem with it.
That's the big question, with a universal application: that tension between the fact that knockoffs have a diluting effect on the original, and the idea that if your idea can so readily be copied it's perhaps not worthy of protection.
The magician's creed is a lot like an open source license with the restriction of attribution. If attribution is given then copying is considered respectable, whereas if it's not then it's considered theft.
Copying is not considered respectable if attribution is given...
The general rule is you are to ask the individual you are copying if you can copy them in which case they will say no unless they sell the trick, or you can argue that you independently came up with the trick, and the person agrees with you.
Copying is always considered "theft" even with attribution unless there's specific permission.
There is a case where a performer does magic to the same song (Shape of my heart), but with different actual magic performance and it is considered copying.
*Edited to improve my tone, the person I responded to deserves good faith and seems quite reasonable.
That so many magicians are so possessive of their precious "secrets" and that so many of them are against sharing (even with other magicians), came as rather a big shock and disappointment for me when I got interested in magic.
I spent most of my life in the opensource and academic communities, where free sharing of techniques and knowledge was not only commonplace but encouraged.
It's very sad that much of the magic world is so anti-sharing and so jealously guard the knowledge they possess from each other (unless you can pony up their asking price).
This aspect of parts of the magic community is a huge turn off for me.
There is a nuance here -- magicians are possessive of someone else taking credit for their idea and do not appreciate someone selling it as their own.
Sort of like the way the BSD license works. However if credit is given and the new effect is sufficiently unique/innovative, then no objection is reasonably made.
Well, your explanation assumes that the magician you would get permission from is still alive. Most material used in modern magic was invented decades if not centuries ago.
In today's world, these age-old effects or gimmicks are popularized by various working magicians, some of whom make a name based on them. And once in a while a completely novel approach is invented.
Most new effects are the result of borrowing. A card trick may use a lift invented 100 years ago and a bit of verbal patter similar to something invented last year. The respectful magician will give credit where it's due and will still be respected if he has truly innovated.
If there is true innovation no magician will begrudge him the use of the borrowed elements, unless of course they make up the bulk of the trick.
The magician's creed is closely correlated with the steps needed to gain the respect of other magicians.
I am talking specifically about methods created recently. Obviously if a performer is dead and has released their methods then no permission is needed. If they are dead and haven't released their methods, likewise.
You're focusing heavily on borrowed elements from long ago. Sure.. No one cares. However take something from a current performer and it will not be respected.
I do agree that the magician's creed is very much about the steps needed to gain respect of other magicians.
Different areas have different views. Chefs attribute sometimes, and there is no copyright on recipes (there is on the words if writtem, but not on the substance). Copying is considered normal.
It isn't the same video, it's the same trick. He has uploaded a new version of the same trick in an attempt to get past the removal that Teller did of the previous video.
I read your comment as "the style is different, and you shouldn't be able to protect effect, so Teller shouldn't be persuing this." Which is obviously a flawed argument if the style is the same. Apologies if I misinterpreted your comment.
Libertarianism is rather diverse when it comes to IP. Some think there should be no IP (it infringes free speech). Some think there should be IP, but enforced through the market via contracts. And some, such as those who lean toward the Objectivist side of things, consider it essential.
That would be so tasteless as do undermine decades of respect Teller has earned as an artist and a person.
Penn, on the other hand, would tell you he is going to lie about it, lie about it, then tell you he lied about it, and you still wouldn't be sure if he was lying about lying.
There's also an interesting parallel with standup comedy. At least here in the UK, the stealing of jokes by mainstream comedians from alternative performers is — while not accepted — viewed by the victims of the theft as just one of those things that happens, something to be ridiculed rather than something that can or should be fought.
This can sustain itself in part because there is a relatively clear divide between the mainstream and alternative comedy circuit.
Within the mainstream circuit there is much more of a culture of sharing material, so one can be of the opinion that joke theft is just something that happens on the mainstream circuit.
It doesn't majorly impact the victims on the alternative circuit because the audiences are different, and the concept of ownership of material within the alternative circuit is a lot stronger and so the people who matter will still attribute it to you.
I don't know enough about magic to know if there is or isn't a similar divide.
One name comes to mind when you mention the above: Robin Williams. There is still talk of him paying off comics after indirectly doing their material on stage or on television.
Especially interesting when viewed in the context of recent patent disputes in the tech world. To hear Teller talk and to hear his performances described conveys that ethereal, intangible quality that "the real thing" has and that knockoffs generally fail to capture — a quality that seems instinctively to be deserving of protection.
If the "knockoffs" can't capture it, why does it need protection? The logic doesn't work there. You could just as easily defend the cynical interpretation that Teller is looking to "defend" (via the monopoly status of his tricks) his quite substantial revenue stream. That doesn't seem so deserving of protection to me.
The argument (which I'm by no means seeking to make) would presumably be that knockoffs don't necessarily have to capture the same spirit as the original in order to devalue the original — and, indeed, the very fact that they don't capture the spirit of the original is what makes their devaluing influence most powerful.
I feel there's a parallel with music here. Does hearing a great song croaked out by a hack at a wedding devalue the original? Perhaps. But for society it's worth it overall; so many bands get their start doing other people's material. In fact many musicians are only able to keep making music because of a "day job" in a cover band.
Perhaps magic tricks should have the same thing: an automatic license for "covers", where if you want to perform someone else's trick you pay a standardized, small fee to the original inventor.
It's easy to dismiss Teller because he works in Vegas in a rather quirky profession. But his is a peculiarly deep, sensitive and beautiful mind. I tend to love everything he writes, and most things written about him.
I think you should see the real version and not an explanation of the version first. Watching this could ruin the suspense and enjoyment one might find watching the real performance.
I've been to their vegas show this August and I swear, it's something that I'll carry for me for a long time, if not forever. I couldn't believe my eyes and the feeling of witnessing those tricks live right in front of you is indescribable.
It would be funny if copyright in tech was treated like it was in magic.
All of the techie people instead of deriding copyright would instead insult and attack anyone who used any code remotely similar making sure to not stay in the same company of someone who would dare write even a version of a sorting function.
taking this back to technology, and I'm thinking of Apple vs Samsung here. What do you all think?
Is scroll bounce magical, the way Teller's Shadow is? It is a lie, we all know that digital screens do not have bounces, and that's what surprises us and pleases us. What about slide to unlock?
Honestly, I'm torn by this. As much as I cherish things magical, I couldn't see how public interests would be served by giving these illusions exclusivity.
But is that the same as a masterful magic trick? And if not, should we treat it the same?
I don't think it's the same thing at all. A master magician might easily spend years practicing a trick -- the right mechanics, the right theatricality, anticipating the audience response, coming up with some new illusion -- and then, as the article describes, if that trick is self-contained enough, someone else might see it and work out how it's done and then sell the same trick to people who haven't invested anywhere near as much effort in practicing it.
So I don't think that we can say, well, this is just like software, it's an idea, and therefore we shouldn't protect it. I think that the very idea behind IP laws in the first place was to protect effort -- to safeguard someone's livelihood if they spent years developing an idea, so that someone else wouldn't simply come along immediately afterward and usurp the idea and rob that person of all of the effort that they invested in developing it.
There's this huge difference in effort between writing simple functions in software and developing masterful magic tricks, and we should recognize that.
Nor do I think that Penn & Teller are at all guilty of hypocrisy. I think it's enough to have just seen some episodes of Fool Us to see that they can have huge amounts of respect for magicians who copy their tricks, so long as those magicians add something unique to it. That's all they ask: take what we do, and do it better.
I can not imagine defending the reverse engineering and subsequent sale of someone else's unique illusion under the umbrella that "software patents are bad".
I am somewhat more dismayed that the article seemed to present a good enough case for this all on its own, but the discussion so far is ignoring it -- almost as if everyone just skimmed it.