Mixing it up without IP

Man, do not steal a recipe for Eben Freeman:

After the seminar, I spoke to Freeman, who admitted he came up with the idea for the talk after becoming fed up with other bartenders and establishments taking credit for and profiting from his recipes and techniques. (Fat washing, for example, the process by which a spirit can be infused with, say, bacon, was pioneered in part by Freeman, yet is often attributed to others.) “Someone needs to get sued … to set a precedent,” he told me.

“In no other creative business can you so easily identify money attached to your creative property,” Freeman went on. “There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.”

No disrespect to Freeman, who is understandably frustrated, but he fails to address the purpose of intellectual property in copyrights and patents. This is neatly summed up in the Constitution:

[The Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Intellectual property exists to promote progress. Its purpose is not to ensure that no one’s ideas are stolen or that creative people can earn a living, unless those things are needed to promote progress in a field. The granting of temporary monopolies in the form of patents and copyrights is the price we pay for progress, not a goal in itself.

It might be completely true that bartenders are shamelessly stealing from each other, and that’s certainly something we should condemn, but we probably shouldn’t get the law involved unless we can show that this theft is causing mixology to stagnate. Along with fashion, cooking, and even magic, we’re in an industry that’s arguably better off with weak IP. This decade’s boom in craft cocktails is a sign that we’re doing OK without stricter protections, and I’d be worried that additional threats of lawsuits would have a chilling effect on the sharing of new techniques and recipes.

Perhaps Freeman or someone else has a workable, beneficial idea for expanding intellectual property related to cocktails, but I have a hard time imagining what that would be.

Update 9/1/10: Ezra Klein agrees.

Two Pimm’s, one cup
Dark and Stormy and the piracy paradox
Dark ‘n’ Sue Me


6 thoughts on “Mixing it up without IP”

  1. I’m inclined to agree as well, but how forceful an we really be with an interpretation of progress such as the one provided here, i.e. “This decade’s boom in craft cocktails is a sign that we’re doing OK without stricter protections.”

    Sure, mixologists seem to be doing OK, but could they be doing even better if (1) certain, more creative practitioners could make more money off their products while (2) their wealth acts as an incentive for more creative minds to exercise their talents in a field where wealth is a possibility?

    Or said another way, how do measure the status quo against an untested counterfactual?

    Like I said, I tend to agree with you (and Ezra) on this. I think the weirdnesses in current IP law in other fields are an ample warning to do with less if you can. I’m just not willing to completely commit yet to the idea that the world might be better off if creativity could be better rewarded.

  2. Well, I left this long and detailed comment referencing norms-based intellectual property, and this paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=881781.

    I was comparing the norms of chefs to the norms of mixologists, and suggesting that it may be time for mixologists to evaluate what norms they share, and what norms they might want to adopt, rather than seeking law-based protections.

    It was a great comment, I promise.

  3. http://www.techdirt.com/articles/20100901/17381410868.shtml

    Last paragraph sums it up quite nicely:

    “[It] appears both don’t realize that intellectual property is supposed to be about incentives, rather than protectionism and making sure that some guy who created something “gets his proper credit.” Freeman’s complaint comes off more as someone who just doesn’t feel he’s received enough recognition for his work as a grumpy old bartender. But that’s got absolutely nothing to do with intellectual property law — patents, trademarks or copyrights — and should have no bearing on whether or not he likes young bartenders coming up with derivative drinks.”

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