The Traklight Blog

Intellectual property as a concept — the notion that ideas can be protected by their creators for the purpose of exclusive profit — is one that is central to the construction of capitalism as we know it both here in the United States and throughout much of the world. Businesses exist on the idea that they can offer something unique to consumers, something that must be guarded jealously, and the government does its part in offering legal protection to prevent infringement, lest the system fall apart. Like any ideology, it loses luster as it moves towards an extreme end point (in this case, hyper-protectionism beyond reasonable reading of the laws) but remains so embedded that the idea of significant change becomes harder with every passing day. Could that commitment to the IP status quo ultimately be our undoing?

The pandemic has forced nearly every business that relies upon having multiple people in a single location to rethink their models in a way that would allow them to continue operating with as little contact between people as possible. But what if your business is premised upon thousands of people gathering together in one location to watch an event, like sports leagues?

In a world that is globally connected, one thing that can remain regional and provincial is restaurants, or, given the conglomerated nature of everything today, restaurant chains. Each region of the country has its own chains that denizens swear by, and in moving west in early-2014, I became privy to In-N-Out Burger, which has no locations further east than Texas. Its reputation preceded it, and while the food is worth the wait you're inevitably forced to endure, the overheated hype from proselytizers made it impossible to live up to those outsized expectations. Nevertheless, you understand the populatity, and the brand that In-N-Out has built over decades.

The tension that once existed between the rights of the average content creator online and those of copyright holders no longer exists, because the battle has long since been decided in favor of rightsholders. As long documented in this space, the rules and regulations governing YouTube and Facebook and other content repositories lean decidedly towards those pressing a claim of copyright infringement, to the point that the act of filing such a claim has been made easy in every regard for the claimant and almost impossible to fight for the alleged violator.

We all remember movie theaters, yes? Building with large, dark rooms where we gathered to watch films together, back when such groupings weren't inadvisable? At the point where theaters were a going concern, superhero movies were the dominant storytelling form of the decade, and that success begat more and more franchises, folding in secondary and tertiary characters from the canon. That expansion not only tested audiences' appetite for super-powered fare but eventually the limits of branding.

When reality becomes stranger than fiction, one would think that scripted television would tend to suffer. Reading about the creation of the Space Force certainly felt like living inside fiction when the news broke a couple years ago, and so when the announcement of a TV show of the same name came later, it was hard to imagine how it could be any stranger or funnier than its real-world counterpart.

The crisis caused by the coronavirus has given rise to a wave of goodwill gestures form companies looking to help people throughout tough times. Whether it's out of genuine communal spirit or a desire for good will, brands have made an effort to both donate money and make available products for free in order to try and help the country get through what we've been told repeatedly are "unprecedented times." And while the gestures are not without consequence for some.

Change can seem fitful, if not absent entirely, particularly in light of recent events, but it's still doing its work in society — not always quickly, and often not in the areas in which it's most needed, but things do change. Take cannabis: once the scourge of parents and authority figures everywhere, it's now not only legal in a ever-expanding number of states and localities, it's a big business, generating millions in tax revenue for the governments that have been at the leading edge of the legalization movement. For those that grew up with the D.A.R.E. program and other anti-drug messaging, it's astounding to see how pot has been recast from an insidious poison to a reputable industry in many areas.

In the midst of the pandemic lockdown, artists and musicians have turned to virtual means of staying connected to fans and audiences, as much for their sake as ours. It's a trite observation given the real challenges they face, but performers do survive on the attention that we're able to give them, and the money that comes along with that attention and subsequent ticket sales. We're not sweating the fate of superstar performers, but what about those who are far less famous but nevertheless dependent upon support to survive, particularly those who are coming up against the pernicious threat of copyright bots online?

Modern copyright law has long been in need of an overhaul, but need does not necessarily precede action, and the gap between what is and what should be can be wide indeed. Critics of current applications of the law would suggest that it comes down too often in favor of the powerful, which is to say on the side of rightsholders pressing the case for infringement, with many of those rightsholders being big corporate entities. They're of course entitled to protect their rights to their intellectual property under the law, but what those rights are and what they entail has shifted greatly in their favor over recent years.

The thing about notoriety, or infamy, is that it places a magnifying glass over every part of your life, and that's particularly true of the reality television stars of today. That means any legal trouble of legal issues you face become fodder for the internet, because there's seemingly nothing we enjoy more than the rise and fall of stars.

When it comes to products, names mean a lot, as do descriptors; some of the best brands are able to work descriptions into the name so as to leave no ambiguity as to what you're getting. The abstract or esoteric works for books that are looking to win awards, but is far less useful to other work that requires an audience to understand what is being offered so they can determine if they want to watch it. Within that rubric, creators are generally limited in how to describe any film or show; as much as we wish our vocabulary was more expansive, we generally confine ourselves to a few terms to describe certain ideas and concepts, and so it becomes hard for any creator to claim ownership over those terms.

As a political science student, you learn that much of what law and regulation ends up being in practice comes down to interpretation and implementation and enforcement on the part of the relevant agencies. Laws don't mean much if they're not enforced, or if the enforcement ends up being something different entirely from the original intent of lawmakers and regulators, but that, as we learned, is the nature of a government that relies upon a bureaucracy of numerous agencies and thousands and thousands of employees that can operate with semi-autonomy absent any direct guidance from above.

The general absurdity of YouTube's copyright system is well-trod territory on this blog, but it's always worth reiterating anytime the company bungles cases or otherwise misses the mark on IP matters; after all, YouTube is perhaps the repository of videos online, so if the copyright system is wrong on the site, it's going to affect far more people than almost anywhere else.

It's become so easy to expect the worst in the current crisis that it can be surprising when you see positive stories appear in the news, even if they're at the periphery.

Who owns what we see online? It's perhaps not a question we give too much thought about, at least beyond our own purview; so long as we don't see something that we own or created on some website, we're not too worried about the question, particularly given the overwhelming number of other worries we have on a daily basis.

How long does our work survive beyond our time among the living? It's not a question that the average person has to much consider, although given how the internet is bound to our current existence, it's fair to say that traces of us will live on for years to come, even if you have to hit up the Wayback Machine to find them. For creators, questions about legacy and immortality are usually reserved for thinking of the collective consciousness, while realizing that the day will come when the financial benefits will disappear and the work will enter the public domain.

While this space remains focused on intellectual property and all matters related, I would like to take the occasion presented by the story covered today to talk briefly about the importance of Michael Jordan. The fact that he was important isn't questioned by anyone who lived through the past thirty to thirty-five years as a sentient being, but he had a special significance to those of us who were kids at the point he was at the peak of his athletic and commercial powers. Words hardly do it justice; he was omnipresent and seemingly all-powerful, and anything that he deigned to endorse was a thing worth having, doubly so when your parents (rightfully, in retrospect) refused to accede to your whims and some clever marketing.

Need is a strong motivator, and urgent need of the kind felt in many walks of life during this pandemic will hopefully spur the kind of ingenuity that is demanded at the moment. Need during times of crisis is also not generally subject to the kinds of normal restrictions of law and regulation that might normally apply, either due to a suspension of or flaunting of the law, and so it serves as a window to examine the efficacy or need of those particular laws. Intellectual property might feel ephemeral in a time like this, but the story of how copyright and medical care intersect show how it underpins so much of the work we do and how its enforcement can do more damage than good.

The story of copyright in the twenty-first century tends to be one of corporate overreach, though you perhaps can't blame big business for trying; after all, it falls to regulatory and oversight bodies to rein in the worst actions and instances of IP abuse, and those institutions don't always appear to be up to the challenge. That's not to say the overstepping companies bear no culpability, just that you can't expect those corporations to act in anything other than naked self-interest, and in the absence of someone telling them "no" they might assert rights they have no basis to claim.