The Traklight Blog

A big part of IP law is the ability for companies to protect their ideas and their brand — the main part, really. And it's important and necessary for such protections to exist, to prevent things like theft and infringement from becoming rampant problems with little or no means or seeking justice and recompense. But we've seen that the power and protection offered to rights holders through the law also enable bad behaviors as well, notably in the case of patent trolls working the system to extort what money they can.

Social media doesn't have the best history when it comes to copyright to this point in its history. The poor record makes a kind of sense: it's hard to govern a platform with tens of millions of users, provided that we believe they even want to regulate behavior, and tech companies in general have struggled to find the right measure of action to take, often swinging wildly between indifference and overreaction based upon the crisis of the moment. These companies want growth at all costs, and problems are often left to grow and fester until such a point that they threaten that growth. All this is to say that social media companies as a whole don't seem to have a coherent ideology on much of anything, let alone copyright and copyright protection.

"Use it or lose it" isn't a principle we generally associate with ownership — we all have closets filled with unused stuff that nevertheless remains ours for years — but it is one of the hallmarks of trademark law. Whatever your opinion of our current IP laws, it's almost unquestionably a good thing that individuals and companies can file for a trademark only to sit on it, not unlike those domain squatters eyeing an opportunity to capitalize not on a fully-formed idea, but rather happening upon a name likely to be sought out for use. Conversely, there's always the chance that the one messing up your chance at a trademark is yourself.

I've written before about the problems with both the aggressive assertion of copyright and the inability of online platforms to discern legitimate claims from the misuse of reporting tools on offer, with YouTube as the convergence point of these dual phenomena. Invariably the response from these platforms is that their user base is too large and too spread out to offer any effective administrative policing, so the task falls to users to police one another. The problem with this approach comes from the baseline assumption that users can be trusted with these tools and this power; as we've seen in society at large, while the vast majority of people will probably do the right thing, it only takes a few to do wrong and ruin the whole thing for everyone.

We don't often talk about trade secrets in this space, because they are by definition secretive and unreported. It's easy to understand and follow stories about trademarks or patents because we can identify what's been infringed upon and how it relates to the products we know and consume. Trade secrets, on the other hand, have to stay vague in what we read of them; companies don't want their proprietary information to disseminate any further than it's already been. You protect your trademarks and patents by declaring them to the world as yours; you protect your trade secrets by telling no one.

There's much made of the importance of copyright for creators, and for good reason: without any sort of legal protection or ownership rights, the act of creation itself would be meaningless, with the ultimate profit and benefit for a work ultimately going to whomever has the resources to both exploit it and muscle out the original creator. Why record a song if a more popular artist could simply come along and record their own version or sample your work without permission and reap all the benefits? So goes the thinking for those taking a more strident view about the application and enforcement of copyright, and given how we consider people with a big ideal looking to capitalize on it within the American ethos, there's probably a fair base of support for that position.

Wearable tech has been a fairly recent trend, unless you want to count the calculator watch. And preeminent in that trend has been Fitbit, which offers devices that monitor your activity and your health, should you actually want to know about such things. To those of us less technically-inclined, it seems like magic that a small device can determine our daily steps and our heart-rate and any number of other data points by just sitting on our wrists, but indeed there is substantive technology behind the magic, although if a recent complaint is to be believed, it's not tech that Fitbit has a legal basis for using.

It's easy to wonder, given how relatively easy it is to search the respective databases containing registered trademarks, why anyone would thus infringe upon those marks given that they could or should know the error of their ways. One view is that it's a simple oversight on the part of the offender, an honest mistake, a view that is both accurate and somewhat naive at once. The other interpretation is that there is malice aforethought, that the perpetrator intended to infringe upon the mark because there was gain to be had for them, which is also true and also cynical. Whatever the reason, there is profit to be had in violating someone else's trademark, otherwise it wouldn't happen. But the Supreme Court might be looking to change that in the near future.

Say what you want about American intellectual property law (and I do), but it certainly lets people try their luck at obtaining just about any sort of mark or patent, even if the application is ultimately rejected. It's undoubtedly someone's notion of the American ideal that ambition in this arena not be bound by common sense or an actual understanding of the law but solely by their willingness to try and get one over on the governmental bodies in charge of intellectual property rights. It's the freedom to try anything you want, no matter how stupid or futile it might be, that is fundamentally American, you might argue. It probably won't work out, but at least you tried.

Questions about the future of intellectual property are seemingly tied to the future of creativity as it relates to technology. We've already seen the USPTO look for input and guidance as to new rules for copyright law regarding works created by artificial intelligence, and the matter will only become more pressing as AI becomes more adept at creating unique works that warrant copyright protection. It's a complicated topic, one that wrestles with questions originated in our science fiction: can machines be said to have consciousness, enough so that their work could rise to the same level of that created by human hands and minds?

There's been much written about the manifold issues facing YouTube as it comes to copyright complaints — not only the inevitable problem of copyright violation but the manner in which the tools offered to try and address the problem are weaponized by bad-faith actors or overzealous entities in an attempt to simply remove videos and creators from the site, regardless of the merit or severity of the alleged violation. Users compiling enough strikes for copyright violation, as reported by other users, faced the possibility of having their account suspended, and even in cases where the complaint was proven unwarranted, there was still the time and hassle of having to deal with the complaint. It was an outcome as concerning as it was predictable, seemingly another case where tech companies shunting off responsibilities to users simply created a new problem while not fully addressing the old one.

Culpability has become has become an ever-more-relevant question in cases of copyright violation, with technology making both the dissemination of creative works and the subsequent violation of creators' rights easier than ever. The ultimate blame in those belongs to those actually perpetrating the acts, but our sense of justice and the system put in place around that notion seeks both to assign some responsibility and punishment to those who might have enabled misdeeds through direct action or negligent inaction. It's something that we see from large corporations, where inaction is often the norm for a variety of reasons, although in light of one recent case, those same companies might feel compelled to get proactive.

The battle for creators against copyright infringement and piracy is long and ongoing, and made all the more difficult by the fact that the adversary is forever changing and shifting; no sooner does one site shut down than multiple more pop up to take its place, like the many-headed hydra that vexed Hercules and Captain America alike. Or perhaps in citing actual history, it might be more apt to say that it's hard to pin down an enemy that can simply slip away once a battle is lost; the operators of a particular site may face their day in court, but users can simply migrate to the replacements that arise.

There's a dichotomy to being big, a paradox that comes with size relative to those around you: it's understood and expected that you should take the care to look out for those smaller than you as you make your way through the world, and yet being big gives you the option to simply do as you choose by virtue of the fact that you can make others get out of your way, lest they be knocked over or crushed.

It's important to establish at the top that we understand and value the importance of trademarks as part of the intellectual property portfolio that every company establishes and develops as part of their growth. Trademarks are necessary to protect businesses from infringement, as well as protecting consumers against knockoff or impostor products or brands. That being said, there are times that trademark law can seem to veer into absurdity, and that the principles designed to make for a better commercial marketplace for all seem to be gamed to benefit a certain subset of companies with more wealth and power (and access to power) than the mom-and-pop store down the street.

It's the rare occasion when someone seeks out or welcomes a court case, and for good reason. Our legal system is long and costly, and those seeking justice or remuneration can often leave disappointed. Even those pressing their cases through the civil courts have to feel some sort of reluctance given those facts. We'd like for the system to be better, fairer, less burdensome, to be sure, and there are those working to try to make it so, but for the time being it is what it is, which makes the case of courting a court case something worth examining.

It doesn't take much to ruin a joke, and it's a sure bet that once corporations get involved and try to get in on the joke that it's run its natural course as something that was organically cool and fun and has now entered the phase of its existence where it's co-opted to the point of losing its edge and meaning. You can almost set your watch to the time it takes for a meme to be born on the internet to the time that it ends up on some company's Twitter page in post trying to sell you something, even if it's just that the particular brand is hip and with it and definitely a fellow kid.

Historical fiction is a staple of media, from books to television to films. It also frequently presents questions and challenges as to copyright and ownership and claims over a particular story, or versions of that story. It's certainly more nebulous than work of pure fiction, in which cases it's far easier to tell when another work is derivative, even when questions of intent and coincidence muddle things.

It's once again time to look to the Supreme Court for its determination on a matter of great import to the very foundation of our nation as one still capable of upholding its laws, norms and traditions in the face of wanton disregard of those very precepts.

There's been some time spent in this space considering how technology will impact the future of copyright law, both in therms of how copyrighted material is now made (and how much), and also in how we as consumers are able to interact with that material, and if we so choose, violate that copyright with something like ease. It's been a consideration of how technology will change the relationship between creator/owner and the public, but to this point the principal players have remained the same.