The Traklight Blog

For observers of such things, there's nothing quite so confusing or maddening as the minds that make up the minds of the U.S. federal court system on matters of intellectual property law. (Though that feeling undoubtedly spreads to other areas, depending on your interests.) Although it's the nature of the beast that not every decision be one that you agree with, one would hope that the logic used to arrive at those decisions would at least hold up to scrutiny. Even as rulings might fall against your desired outcome, you want to at least think that the most basic precepts of law still apply, even as they are interpreted in a manner less to your liking.

If there's one thing that I hope regular readers have noted, it's that I enjoy a story about the unintended consequences of decisions and actions. Perhaps enjoy is too strong; I highlight them to hopefully serve as an example of the perils of not fully thinking through one's choices, perhaps as a way to justify my own ponderous nature, if you were to take the thought to its logical end. Regardless, this is a space where you can see many an individual or business go astray because they simply thought about the good that might come of their choices without considering the bad that might accompany it.

To what extent can creators be held responsible for the ways in which their creations are used, particularly if those uses fall outside of what is legal or ethical? It's a worthwhile question to consider these days. We've more technology in our hands —quite literally in the case of smartphones— than could have been dreamt of by technologists of yore, and yet all of that tech and all of those tools being readily available to so many means that there are those who would use them for less than legitimate means. You can think of identity theft and the dark web and any number of other nefarious enterprises and wonder how much blame is apportioned to those who helped to create the internet, a consideration that's probably unfair given how unlikely it was for anyone to imagine what the internet would become.

A common theme in this space, and many others like it, is the law as a weapon as much as a shield. Laws exist in theory to protect us, sure, but we're all eventually indoctrinated into the idea that laws also exist to protect the more powerful against challenge or consequence. There's a reason that we see companies like Facebook and others unencumbered by any fear of repercussion or reprisal when they do as they wish in the face of the greater good, and that's because there's rarely much chance that they'll face any measure of accountability. When you become so big that you can impose your will and face little pushback from even the bodies meant to keep you in check, we're reminded that justice and access to it are real and serious problems for many.

It's true of most new things that it takes a while for the problems and kinks to get worked out. It tends to be particularly true when something has exploded overnight, as is wont to happen from time to time with new technologies and platforms. The benefits, the appeal are evident to everyone involved, but there's not as much thought given to what the potential drawbacks might be, or what the worst-case scenarios are in respect to users who are going to violate bounds great or small.

The tech world is no stranger to pressure, legal or otherwise, but this moment in time feels a bit different from years past. Suddenly Big Tech finds itself under scrutiny from lawmakers and opinion-makers alike, as they grow so large and so powerful that the biggest among them recognize that the constraints on their power can hardly be said to exist at all, particularly given how their technology underlays the world we now live in. It's probably not surprising given those circumstances that these same companies might try to push against what laws do constrain them, but at least for the moment the law still seems to be working, at least as far as IP goes.

For all of the machinery and marketing behind the big franchise movies we see on weekends, it's easy to forget how much of this is owed to writers who come up with these ideas in the first place, and who often don't get due credit and compensation for what they're ultimately making possible. There's a new case and a newly-resurfacing law that might chance our estimation and the power of writers in Hollywood, however.

By way of an introduction to her Business of Delivering Legal Services course for Suffolk Law’s online Legal Innovation & Technology Certificate program, our own Mary Juetten gave a webinar with the fine folks of Suffolk Law to discuss what the course has to offer for attorneys and others adjacent to the legal industry, as well as a brief overview of the principles and ideas that the course imparts in hopes of bringing change a few attorneys at a time to an industry slow to adapt. Here are a few of the key points of the session, which you can watch here.

It's hard enough for most of us to conceive of being famous for any reason, and harder still to imagine somehow being both famous and anonymous, which would seem to most to be a middle ground that few would want to occupy. Those who want fame would want all the trappings that come with it, while those fervently avoiding the spotlight likely wouldn't want the hassles that come with maintaining that fame. There are a few to have pulled off the trick over the years — the guys from Daft Punk, pretty much any superhero (though Batman is famous in both of his lives)— but no one has pulled it off quite like the street artist Banksy, and now that remove from direct fame is causing some trouble for his trademarks.

Within the confines of the legal system, copyright cases can seem rather banal compared to the more salacious proceedings on offer within the criminal courts. Copyright cases make the news, sure, but they're not likely to make the front page, save for the possibility of a day when a copyright case threatens to unravel a career or a media empire. There's not going to be a Law & Order iteration that's focused on IP cases, unless they're running really short on ideas. No, copyright cases are usually taking place in the background, everyday occurrences that can be taken for granted, and in that way they're perhaps more reflective of out lives as they actually are.

It's easy to by cynical about big tech, mostly because that cynicism is earned, and if given enough time, will be validated over and again. But on occasion credit must be given where it's due, even if you know that any such plaudits will look terrible in the light of some future malfeasance, if it doesn't already.

The newly enacted copyright laws in the EU have already been the source of no small amount of contention by parties who feel the regulations are too restrictive and onerous to those required to adhere to the guidelines. The laws have already faced a challenge from a country within the bloc, and there has been plenty of rumbling from the tech giants who find themselves now largely responsible for adjusting their practices to be in compliance. It's an incipient battle that might now be seeing its first volley.

Copyright can occasionally delve into some tricky, murky areas that raise questions about ownership and legalities and who has control over what. The cases are always interesting as observers with no skin in the game, as you get to see courts rule on questions you might never have considered and situations few would have imagined. Much of it circles around issues posed by new technology and the challenges it presents to the idea of copyright as we understand it, but occasionally there's a case that is purely analog and strictly offline that can still serve to raise those yet-unsettled questions.

Trademarks are a vital part of any business, and on most occasions, people don't or wouldn't begrudge a trademark filing from a company, save when it crosses a somewhat ill-defined line. Ohio State University trying to trademark "The" generated a certain amount of opprobrium, and people were upset that LeBron James attempted to trademark Taco Tuesday, and delighted when he was denied in his attempt. Those represent one strain of filings that offend our sensibilities in their ambition to capitalize on our common language, trying to turn a public good into private profit.

Some of us are more intrinsically motivated to work out, more inclined and apt to stay healthy and in shape and disciplined to a diet that allows them to be the best version of themselves. More of us, however, are not that person; we're jealous and more than a little resentful of that person, if we're honest, provided that we've seen one of them in the real world. For the vast majority of us, exercise is a slog, and there's an entire industry that's cropped up to make it easier and more convenient for us to do something that we still nevertheless don't want to do. In recent years, the tricks involved in getting us on these machines have gotten even more advanced: TVs built in, music playing, even immersive experiences that simulate an outdoor bike ride. It's enough to make you consider exercise as near-entertainment, which is rather the point.

There's a pair of arcs that most stories involving intellectual property, big companies and artists fall into: in the first, said individual or business uses a trademark or copyright of a big brand in a way that the brand's parent company can't abide, the corporate behemoth lurches into action and pursues legal remedy against the perceived injury, and the case is more often than not adjudicated in favor of the august multinational conglomerate — a David and Goliath in reverse, minus the slingshot and the beheading. (The beheading always gets left out in the metaphor, understandably.)

The old saw among the chattering classes is that there's no such thing as bad press, but recent years seems to have given lie to that notion. Indeed, nowadays it seems more beneficial to go about your work building a company quietly, lest your flaws and mistakes and in some instances weirdness be put on display for the world to see.

We don't often consider the role of intellectual property in international intrigue and espionage, to the extent that we give consideration of the real life existence and application of spycraft, but perhaps we should rethink how we consider the matter. After all, what is spying but the clandestine search for secrets and information, and the biggest corporations have seemingly as many to entice the corporate spy as governments do for their public-sector counterparts. It takes what can be the mundane in intellectual property and adds a dash of Ian Fleming and Graham Greene, albeit without some of the dramatic flourishes.

YouTube is not short its problems, not least of which are its handling of copyright claims. Given the size of the platform, administering any element of the site is going to be a unique challenge, and the lure of DIY options has to cry out to staff that feel overwhelmed and overtaxed to keep up with the manifold problems that seem to be introduced every day. Their method, or one of them, for reporting copyright infringement —allowing users to flag offending content— seems perfect, unless you've spent a day or an hour on the actual internet. Not surprisingly, the system is ripe for exploitation by bad-faith actors looking to exploit others. It would be too simple to think that YouTube might simply do away with what is clearly a flawed notion, but they do seem to be taking some action to try and stem the issue, at least in miniature.

In watching LeBron James display his generational talents on a basketball court (last season notwithstanding), I occasionally give thought to a few passing similarities between us. In many (zero) ways, we could be mirrors of one another: both from Ohio (that much is at least accurate), somewhat close in age (sadly, I'm a year closer to forty than he is), both tall (a reach) and gifted at basketball (I can make a few free throws in a row, maybe). Yet our paths diverged, and he has gone on to fame and glory, a mastery of the sports universe that few could ever hope to achieve and a personal brand that now extends into realms beyond the basketball court. But he doesn't have this nifty blog to chronicle his and others' IP exploits, so I've got that going for me.