Stuart Blog 2: Warp with a side of woof

Tuesday, December 13, 2005

Warp with a side of woof

All minds quote. Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. -Emerson
Warp and woof. I love those words. But it's not the imagery that makes this quote powerful. It's the message. No one owns ideas because no one's innovation is theirs alone and seperate from the entirity of the overarching human dialogue. Mozart was a genuis but he was reacting to his context and building on all of the generations that had come before him. The founding fathers understood this, too:
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. Jefferson
They gave exclusive rights to inventors not because the inventors had any "natural right" to their idea but for the "benefit of society." Innovators take risks to turn ideas into technology that may be of benefit to society. In recognition of this risk, society grants them temporary exclusive rights.

Anyway, somewhere along the line someone coined the phrase "intellectual property" and now everything is bent out of shape. Everyone thinks that every idea they have is completely independent of their interaction with society and is theirs in the same way as their hats. That's impossible. It's just not how human minds work. But that is how I came to be in a restaurant in Woodmere explaining to a friendly police officer that the owner of a restaurant named Taza had stolen my camera.
"And Taza said let there be coagulated milk protein. And there was coagulated milk protein. And Taza saw the protein, and that it was good. And Taza seperated the protein from the baked dough. And Taza called the protein Cheese and the dough Pita. And evening and morning were the first day."
Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody....

Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. Jefferson
Society has decided that the pharmaceutical industry could not survive without "the embarrasment of an exclusive patent." That's reasonable. Pharmaceutical reseach is expensive and risky. By the same logic, society has never extended similar protection to chef's and their recipes. It's a well settled matter of law that recipes are not subject to the protections of our intellectual property regime. I think that's pretty reasonable, too.

They don't take risks the same way that inventors do. This isn't a subtle judgment. It's an obviously true fact: chefs don't need the protections of our intellectual property regime. How do I know? Because I just came home from having one of the best meals in my recent memory. Because I've eaten only a couple meals at home in the past two months. Because I've sampled food traditions carried here from across the entire globe and all of this was possible in an environment without these extra restrictions. (Of course, it's not just tinpot chefs pushing consumers around. From the pharmaceutical industry to the music and film industries, this is a huge and growing problem that isn't getting nearly the attention it's due. Maybe, I should have chosen something other than cheese to get quite this lathered up over?)

I was taking pictures. The proprietor came over and demanded that I stop. He was accusing me of stealing his ideas. He made it clear that I either stopped or that we would have to leave. Not only was his position insulting, but his demeanor was aggressive and bullying. His attitude made the decision easy. Unfortunately, that didn't satisfy him. He demanded that I erase the pictures that I had taken. When I protested he grabbed my camera and passed it to a coworker. When the police officer came, he immediately instructed the staff to get my camera. After they dawdled, he asked more assertively.

Imagine any other "creative worker" trying to enforce that kind of policy. Imagine if a fashion designer insisted that you get his permission to take photographs of his work. Now imagine two dozen guests at your Thanksgiving feast craning their necks, desperately trying to read the lable on their shirts lest they have to undress so that they can find contact information for their shirt's designer. I'm sure the designer would be happy to extend his permission to photograph your great-grandmother... for a small monetary consideration. Now imagine the fashion designer telling the police officer that he worked very had on these designs. (This is the legal principle of the first sale doctrine.)

(Obviously, these two situations are slightly different. The restaurant is a "quasi-public" space and the owner can refuse service and demand that I leave. On the other hand, there's no reasonable expectation of privacy for the staff or the patrons and certainly not for the food. Even in the face of this difference, I think my parable is instructive. Also the chef's behavior seems more reasonable because it's almost possible to think that the chef could successfully manage to protect his "trade secrets" this way. Of course, this security is an illusion.)

Enough public policy. How about some hard nosed business? What's the best case scenario for a restauranteur who imposes this silly policy? An overwhelming majority of his customers don't even notice. Then every once in a while he insults the very type of customer who would otherwise have been his biggest asset. This is, after all, a customer so interested in the food that he takes pictures of it. Then one day, a real industrial spy comes by but the proprietor doesn't even notice because, honestly, what kind of dumb ass industrial spy actually brings a regular camera? The spy gets all the information that he could ever have wanted and opens up what eventually becomes a very successful restaurant in another part of town. The original proprietor doesn't ever figure it out because most of the information that the industrial spy really needed was already available at the public library.

The worst case scenario is that the police end up coming and telling you fetch the camera you stole.

Millions of people watch Emeril and Rachael Ray but the food service industry has just as much to fear from the Food Network as the the home construction industry has to fear from Bob Villa and Norm Abrams. Restaurants don't make money off recipes. They couldn't because the same recipes, or better, are freely available anyway. Some make money by offering simple food conveniently. Others make money by getting to the restaurant at four in the morning to simmer stocks, bake fresh breads and argue with the fishmonger because the last delivery was almost imperceptibly better than the current delivery. And some succeed by setting their food in an environment of the finest art, the softest chairs, dazzling furnishings and elegant serviceware none of which you'll have to clean.

When I was eating at one of the best restaurants in Las Vegas, the staff wheeled the bread cart over so that I could take a better picture. They were curious about my photography but no one seemed worried that I was going to run Joel Robuchon out of business with my personal renditions of foods so complex I can't even spell them for you. Then when I came back home, one of the best chefs in Cleveland very generously gave me two recipes to help with my Thanksgiving preparations. Look out Moxie! I've got my sights set on you. Smart restauranteurs do this as part of treating their customers with respect and friendly chefs do it to share the joy of cooking.

I've always been tickled by the fact that McDonald's has a hamburger university. I'd love to take a look at the thousand page instruction manual that they have for their managers and franchiese but which is guarded like the President's nuclear codes from others. My point here isn't that restauranteurs should hold cooking classes for their competitors. I only hope that people would give more thought to when it's important to hide or share information and that we all understand that things are frequently better when we share. Also, I think we can all agree that yelling and grabbing are right out, no?

So the labneh was pretty good, but the pita was disappointing. The zatar spiced oil and the kalamata olives weren't worth eating at all. I have some pretty pictures of the jibneh. (That's the grilled cheese.) It really looked very good. I'm sorry I didn't get a chance to eat it. Fortunately, it's a traditional dish served at hundreds of restaurants in countries across the world so I'll probably find it somewhere soon.

Tagged: food, restaurant, dining, cooking, intellectualproperty

1 comment:

Tibor said...
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