The Traklight Blog

To the extent that the internet is a net positive to the world at large (and after the last few years I am open to arguments to the contrary) one of its great gifts is the weird and funny mashups gifted to us by creative folks all over the world. Like peanut butter and chocolate, they take two great things and demonstrate they work well together, or at the very least are odd enough in their juxtaposition to provide the requisite humor. And many creators, for their part, either appreciate the love and creativity that goes into the mashups, or at least recognizes that the work is likely transformative enough to not be subject to a copyright infringement case.

One of the more salient points undergirding pitches for collective action on things like climate change is that we share this place we call Earth, not only with our contemporaries but with future generations. Both states and individuals can claim ownership of some portion of land or sea or sky, but true ownership ultimately eludes any such as us who are transitory figures on a body that has existed long before we arrive and will continue to exist after we've departed as a species.

Amidst the ongoing reckoning over America's largely shameful treatment of people of color, branding probably ranks as a secondary or tertiary concern, but it is a concern nonetheless. Changes in that arena aren't going to be as meaningful or substantive as changes to broader social policy, but there is a case to be made that we can't move forward, or even hope to move forward, until we make changes to the signifiers and reminders we see everyday without thought or consideration. Just last month, Cleveland's baseball team announced they'll be dropping the name "Indians" after over a century of use, after Washington's NFL franchise announced their own name change earlier in the year.

If you're a fan of the arts, a tradition on parallel with the dropping of the ball in Times Square which was admittedly eerie this year) is the ushering in of the unofficial holiday of Public Domain Day on January 1st.

You could be forgiven for thinking that the biggest thing going for the surname Hamilton is the Lin-Manuel Miranda-penned musical, a blockbuster of both stage (back when theaters were open) and screen (via a release on Disney+). But that would be a myopic view of both the world and pop culture, one that excludes the larger world of culture and sport. And in the interest in broadening all of our horizons, we're heading across the pond and into the cockpit for today's IP news.

Given what we've seen of how people can behave online, it's probably good and almost certainly necessary that some protections exist for platforms and internet service providers. That's not to absolve the likes of, say, Facebook from moderating what's posted on their site, or taking steps to prevent the violation of laws on the part of users to a reasonable degree; it's simply to note that even with the best efforts of these companies (which, to be clear, we almost certainly aren't seeing) there's not much to be done should people decide to do whatever they want, rules be damned.

I wrote just last week about efforts to place some measure of copyright reform, along with other dull or unpalatable legislation, inside the new spending bill that is grinding through Congress at a pace that can be considered less-than-glacial, given the effects of global warming. To recap: the CASE Act is a flawed attempt at improving existing copyright law with what would be a copyright small claims court, likely opening it up to more abuse on the part of bad-faith actors rather than less, and the danger presented in this anodyne, pro-forma bit of bundling is that no one will care enough about something like IP law to hold up overdue COVID-19 relief.

Copyright concerns probably don't rate as even a second-order issue when it comes to artificial intelligence, but it is an interesting topic if you're inclined to think of such advances esoterically. What does it mean about us, about our creativity, if a machine is able to replicate it in some manner? Is the idea of creation somewhat diminished, even though the existence of AI requires in and of itself creativity? Will there come a time when human creativity is rendered unnecessary by this AI, and all of our content is generated by machines designed to optimize your enjoyment of it?

We cover video games here from time to time, in part because, well, I enjoy video games, but also because they provide a fascinating window into copyright issues as they approach greater degrees of photorealism. Just as LeBron's tattoos would never have even been a consideration, much less a problem, a decade ago, the depiction of a city and all its component architecture in a game wouldn't have been conceivable not that long ago. And yet here they are, and with copyright issues in tow.

If you're exhausted of politics (and at this point, who isn't) rest easy; this isn't a post on politics, or at least not politics as we've come to think of it in 2020. The issue at hand harkens back to a simpler time, or at least a time more familiar to those of us who chose to watch how the proverbial sausage was made at a time when there was a choice to look away and go about your life.

You could be forgiven if you've forgotten the names Mark and Patricia McCloskey — indeed, you could be counted lucky in that regard. But likely you recall the gun-waving couple that caught national headlines earlier this summer during the Black Lives Matter protests in St. Louis, even if the names attached to those figures failed to stick. They seemed likely candidates for a mere fifteen minutes of fame, but alas, it would appear that the pair that took to their front yard armed with guns might be somewhat confrontational! Who might have guessed?

Most people intuit that advertising is some mix of fact and fiction; not lies per se, but perhaps a burnished version of the truth. Rare is the product that actually changes our life (although, fingers crossed) and that knowledge is baked into our reading or viewing of advertisements. We look past the embellishment to try and discern if the product in question will do what we want, at a price we can live with. Everything else is about rising above the noise to grab our attention in the first place.

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.