The Traklight Blog

If you'll forgive visiting once more with a frequent topic of this blog, we have to talk yet again about the DMCA. Specifically, about the ability of seemingly any company to use the DMCA for other than what it was ostensibly created, which is to protect copyright on the internet. We've seen the fruits of the maximalist position that most corporations have taken: every video that even makes mention of a product ends up flagged, regardless of the dictates of fair use. It's rote at this point to say that the implementation of the DMCA has been manipulated to the point of near-uselessness, but it's worth saying over and over again, in the hopes something might change.

At the risk of sounding glib, has any company fared better during the pandemic relative to its prospects otherwise than Zoom? Amazon has done well, sure, but Amazon will always do well. Zoom, on the other hand, has gone from useful to vital in a period of months, and probably more accurately in a period of a few weeks in the spring when every meeting became a virtual one. I can't attest to Zoom's outlook pre-COVID, but undoubtedly this period has led to the type of success that spurs thoughts of exponential growth and, inevitably, brings lawsuits.

There is broad philosophical debate, dating back to the dawn of the advent of tools and other implements manipulated by humans, as to freedom and agency as it regards their use. Plenty of tools are designed to be used for the betterment of the species, and are far more frequently used as such, but can be corrupted for darker purposes. One smarter than myself might argue that such a dichotomy reflects the duality of human nature, but that's likely a bit grandiose for a column on intellectual property. Suffice it to say, every tool is a weapon of sorts in the wrong hands. But does that offer justification to take those tools out of the hands of users?

It's become fairly evident over the past several years that, given enough time, every show you ever loved will return in some fashion, whether that be as a sequel featuring a far-older cast than you remember, or as a rebooted property for a new generation to enjoy, or at least watch. Perhaps it's a mix of the two: the old stars of a teen series now serving as the parents and teachers to a new collection of fresh-faced avatars. The reason for this proliferation is of course money and IP: studios own the IP around those old shows, and more important to this conversation, they trust that old IP more than they do new ideas, for better or worse. And so we'll get new versions of every show until the reach the end of the catalogue and the cycle begins anew.

What makes laws work, or at least what should, is that they are or are at least meant to be prescriptive. Violators should know what they did, and what the punishment for the violation should be, in order that they not offend again. Short of that, the system falls apart; people continue to violate the rules unknowingly because there's no way of knowing what actions might cause them to break those rues. Broadly speaking, that is why rules and laws exist, rather than relying upon the capriciousness of a individual or body to determine what is or isn't a foul.

The advent of modern fandom has perhaps blurred the lines of IP ownership, at least in the minds of fans. I don't mean to suggest that die-hards are under any apprehension that they hold the legal rights to any aspect of the properties they love so dearly; rather, it's a type of spiritual ownership that can create both a heretofore unknown passion in a pop culture artifact and, more harmfully, a sense of entitlement. For some, nothing done in the name of fandom can be wrong, even though the transactional nature of the relationship hasn't changed after all these decades.

Trademark opposition seems to be the new "it" thing for major companies; more accurately, opposition that would be termed to be in bad faith is the new hot trend in the IP space. You need not look very far back in the archives of this blog to see a spate of similar stories, and while that may seem like repetition or redundancy more than anything else, it's worth pointing these instances out where possible in the hopes that public opinion, if nothing else, might put a halt to these sorts of cases...eventually.

Most images on the internet get passed around about a half-dozen times before they end up on our screens, so when we hear that copyright can be a challenging issue in the age of social media, it's fair to say that the case is being understated. How exactly to fix it is a big question for far smarter people, but there does remain the issue of how it's addressed in the here and now, which is to say somewhat haphazardly.

You've probably heard of the "Streisand effect" or at at least familiar with the general principle of the thing: the idea that, by trying to shut something down to avoid bringing attention to it, you are in fact bringing the very attention that you hoped to avoid. There's sense to the idea, not that most of us will ever find ourselves the subject of much attention or scrutiny. And yet, many that should know better fail to learn the important lesson that it's often better to simply let things go rather than given them oxygen.

In reading about the many specious patent lawsuits pursued every year, it's some small comfort to know that there are judges still serving as gatekeepers to prevent many of these cases from going any further than they already have. Perhaps not enough, given that certain jurisdictions carry a reputation for being favorable to those types of lawsuits, but at least observers can feel that they system is ultimately working as it should, shaky as that belief may be.

Despite what we teach our children, and what we would like to believe ourselves, it seems that bullying really does work to the benefit of the bully and to the detriment of those targeted. It's unpleasant to think about, surely, but how else are we to describe a state of affairs in which might alone makes right? Other conceptions of morals or ethics seem outdated when faced with this raw exercise of power unchecked by anything but their own limited constraints.

If ever there was a boomer story, this is it.

Most famous art has become, over the course of time, tied to the artist that created it. Da Vinci pained the "Mona Lisa," van Gogh pained "Starry Night" and and on and on until you reach the end of the casual knowledge of art the average person possesses. No such relationship exists in commercial art, which, despite protestations of purists, certainly rises to the level of some kind of artistic expression, or is at least relevant enough to warrant inclusion in that conversation. Most of the iconography attached to brands or products comes from an originator anonymous to all but a few, which can make for compelling mystery when questions of ownership and origination arise.

Finding a great name for your products is hard enough, so when you land upon the right one, you want to do everything you can to hold onto it. After all, good names help to sell products, and bad ones can similarly dissuade consumers, unfairly or not. Branding does matter, and it does work, else it wouldn't continue to exist as it does. So when a trademark case forces a company to rebrand or alter a product name, the cost is in more than the dollars spend in implementing those changes but in the damage possibly done to your public perception.

Technology, particularly that designed with an eye towards curbing reliance upon fossil fuels and/or alleviating the incipient climate crisis, is meant to be the magic bullet to save the human race. But that tech is still designed by people, and as much as the machines are meant to represent human advancement, the humans behind it are still tied to some of the baser instincts that landed us in our precarious position in the first place.

In many of the intellectual property suits that make the news, it's easy to see the penalties or consequences as something of an abstraction. Dollar figures in an article never do seem quite real; it's not as though the stories come complete with a picture of the pile of cash to be handed over to the winning party. And in the case of massive corporations, those figures never seem that much relative to what we think or know of that company's bottom line; what's a $50 million judgment against annual revenue many multiples greater than that?

What is perhaps underappreciated, or not understood at all, by those with only a passing knowledge of the online video economy is that many creators are reliant upon the ad dollars that come in from monetization on YouTube (Or perhaps other platforms). Thus a loss of the ability to feature ads or profit from them is akin to, if not losing a job, working at that same job for no pay. It's admittedly a foreign idea for those over a certain age to wrap their heads around; until a few years ago, jobs were done in offices or factories or out in the workaday world, not in front of a computer. Nevertheless, it's a viable way for many to earn a living, even if all but a few aren't making much more than that.

What can be said for fast food is that, for all the franchises and chains that exist, there are only but a few options on offer, and that the distinction is in the differentiation. In that way, fast food isn't all that different from any other industry; many make similar products, and where they get the edge is in their own "special sauce" that puts them above the rest, be it process or branding or small but distinct differences. It's that "special sauce" that needs to be defended, and the franchise that gave us "special sauce" itself is looking to maintain its hold on branding built over decades.

It's been a long-standing matter of contention as to the right to alter a piece of artistic work. Generally speaking, if someone is to make alterations in a manner consistent with added artistic value, they have far more leeway than might be given otherwise under intellectual property law. But what if you're just removing things from said work?

IP law in the creative field is meant to protect against the commercial exploitation of someone's work by non-rightsholders, but what happens if the infringing work in question is never meant to see the light of day but gets out anyway?