The Traklight Blog

Nothing good can be said of the coronavirus, but to the extend that anything like the slightest silver lining on the darkest cloud can be seen, we can take the smallest amount of solace in the fact that banal misdeeds seem so much lesser now than they did a mere few weeks ago, and in fact almost seem a relief in comparison to the other news we're forced to confront on a daily basis. In that spirit, here is a quant story about trade secrets that harkens back to a simpler time when corporate misdeeds felt like a relatively significant issue.

Our current moment of crisis requires some combination of ingenuity and communal spirit and flexibility and, well, the results thus far are a mixed bag. There are countless people willing to give of themselves and their time to help both medical workers working long hours with dangerously low supplies and those people thrown out of work as the national economy abruptly slammed to a halt and companies began laying off employees. There are also those unable or unwilling to let a good crisis go unexploited, and we can only hope that history will be as unforgiving of them as they deserve.

The lockdown and isolation that we're all living through has brought certain realities to light; namely, that as much as many people may have lamented that much of life had moved online prior to March 2020, it was nothing compared to what we're experiencing right now. The last bastions of in-person activites have shuttered or moved online out of necessity, creating a brave new world that no one could have entirely predicted or prepared for. It's given us a new appreciation for the hassles of the physical world; personally, I'd give my paper towel supply to have the back of my seat kicked in a movie theater.

Now more than ever we are made aware of our reliance upon Amazon in providing us with what we want and need, and for the duration of our current crisis questions about wages and hours for warehouse workers or the sheer dominance of the online retailer and whether that's good for anybody but Amazon become secondary to the urgent demand to get things without having to leave our homes. Seamless ordering and touchless delivery are vital at the moment, and Amazon has perfected the process of letting people order just about anything over the past decade. Who's actually providing those goods is another question, and it's at the center of a recent trademark case.

Given that the current moment we're living through, in which the coronavirus dominates every aspect of our lives, has been both recent and sudden and also seemingly eternal, it's both shocking and not at all surprising to see the amount of COVID-19 -related malfeasance and opportunism that has been unearthed. Bad actors are to be expected, even in a crisis (or perhaps especially in a crisis) but the speed with which the trademark applicants and patent trolls have made their plays would be impressive were it not so depressing.

There are no shortage of new problems technology has introduced into the world, but notionally there are some things that should be exempted from that principle, and for many young people, video games is front of mind as an example. The internet and smartphones may provide new ways to spy on us or hack our personal information along with their provided benefits, but there would seem to be little downside to the exponential improvement in video games over the course of this century. The load faster and look better than ever before, and with hundreds of millions of dollars poured into hardware and game development, we start to approach something like verisimilitude — which might be a problem, in some cases.

It's become commonplace for big companies to target smaller businesses with trademark or copyright complaints over what could be termed marginal cases, if we're being generous. It's easy enough for the big companies to do — most have the budget for considerable in-house or outside counsel to pursue such cases, and there's no penalty for their aggressiveness; the worst that can happen is that they lose the case, at which point things return to the status quo ante.

Music copyright has proven to be a tricky topic in recent years, given how readily available music is at present paired with the ability to take on alleged infringement, both through YouTube and in the courts. (Not that any court case would ever be considered easy.) The exponential growth in copyright cases within music is a matter of some debate and contention; some believe in the absolute ability of creators to protect their work from infringement, while others argue that influence and sampling are simply part of the art form, and that to take those away is to remove the ability for new artists to build upon what others have done, as they have for decades, if not centuries. It's not an argument that looks to be resolved anytime soon, although one ambitious musician is seeking to short-circuit the issue entirely.

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.