The Traklight Blog

The idea that much of what is considered innovative or revolutionary may actually simply built upon a foundation of borrowed or stolen ideas is not a new one, but it's one that gets trotted out a lot in this century. The usual sequence of events dictates that a company gets big off a great new idea, another company pops up to content that new idea isn't in fact new and is their old idea stolen and re-purposed, and the matter goes to court to be settled months or years down the line. Our cynicism jades our view and begs the question: Is this company taking legal action now because the success brought the infringement to light, or because the success offers an opportunity to cash in? It's unfair to the businesses duly wronged, sure, but there are enough cases to suggest there's something to the latter view — enough to raise questions about every case you come across.

Great advances in technological innovation can make us marvel at where we are as a society and what's possible, but it's to the losers of the tech race to remind us that advances don't necessarily bring everyone along. Just as the horse and buggy was left in the dust by the advent of the automobile (almost quite literally), we now see that same obsolescence now, only more frequently and on an accelerated timeline. A quick look around the house probably reveals some device that was once a huge leap forward and now is on its way out, if not entirely outmoded already.

Because there's nothing so bad that it can't be made worse by profoundly flawed human nature and no crisis can go unexploited, we submit another chapter in the growing volume of people looking to get ahead while the world plunges into panic.

Copyright doesn't last forever, or at least it's not meant to; by the letter of the law, it runs through the life of the creator plus some length of time thereafter, ranging up to 120 years depending on the nature of the work and the period of time it was created, as well as whether it was previously protected under existing copyright law at the time. If you're looking for an informative, of somewhat confusing, read, you can check out the full document on copyright duration provided by the U. S. Copyright Office.

In times of crisis, it's restorative to see the better angels of our nature win out over our baser instincts of fear and panic. It doesn't happen in every case — indeed, it probably doesn't happen as much as we'd like or hope — but there are those who choose acts of kindness and a consideration for the common good ahead of the other incentives that otherwise drive American society in particular, for good and ill.

Copyright in the present day presents any number of questions for the interested observer, not least of which are questions completely unrelated to copyright itself. New technology presents new challenges to both copyright and to the understanding of people who have aged out of the demographic of said tech.

Gone are the days when people put in their thirty years at a single company and retired with a gold watch and a pension. Mobility is not only necessary, it's the preferred option for many people who hope to rise through the professional ranks more quickly than the old-school approach of waiting your turn and paying your dues. Such movement isn't a problem or most employees with most companies, but in some instances, there are questions of proprietary information that might walk out the door with some key employees without due consideration to protecting it, or even with it.

Building on top of existing works is a fundamental principle of creation, and one that has its place within precepts of intellectual property. But that idea increasingly seems to run up against a modern interpretation of IP law, and copyright in particular — specifically, the hyper-protective view that many well-heeled creators take in protecting their work. It goes beyond the product itself, particularly in the case of entertainment: don't even mention a film or show or any sort of product in a YouTube review, lest you risk having your videos flagged for infringement. It's IP law as aggressive, a tool of offense, rather than as a defensive measure against misuse, and that theory is being fought over in the courts on a regular basis.

It's inevitable that artistic works of art reference other works, particularly in our present nostalgia-fueled moments. Usually it's just an homage, but more and more you see things directly referenced, things that evoke a time and place and experience in our lives. And usually it's fine, from a legal perspective; most studios and creators are smart enough to know what they need to license, or the rules regarding fair use. But what happens when a work is built entirely around the precept of another property?

A fair bit of branding is trying to carve out your own space in the marketplace wheels still hewing close enough to the general themes of the industry to be identified as being of the same ilk. It's maybe not the perfect example, but the one front of mind to me is Dr. Thunder, the soda you see sold at Wal-Mart that's clearly meant to evoke Dr. Pepper. You know what you're getting when you buy Dr. Thunder — something similar in taste to Dr. Pepper — but it's not so close in name as to be actionable. Wal-Mart's version is evocative without being entirely derivative.

If there is a theme to be found in this week's blogs, it's that sometimes less is more when it comes to enforcing your copyright. Disney going after what is a rounding error for them from an elementary school is an extreme example, to be sure, but there are other instances of companies taking a hardline approach that, rather than preserving the brand and its value, do some damage in tangible or intangible ways. It is, after all, the case that sometimes free publicity is worth the cost of what you might perceive to be a bit of infringement.

Big companies don't get big by letting others trample on their intellectual property, nor do they stay big by getting themselves become complacent in that regard once they've climbed to the top of the pile. Big revenue means a big legal department, eager to pursue every possible instance of infringement and justify their considerable billable hours. More often than not it's an arrangement that works out well for the conglomerate in question, but that zeal can occasionally lead to the occasional misstep.

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.