The Traklight Blog

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.

Say what you want about American intellectual property law (and I do), but it certainly lets people try their luck at obtaining just about any sort of mark or patent, even if the application is ultimately rejected. It's undoubtedly someone's notion of the American ideal that ambition in this arena not be bound by common sense or an actual understanding of the law but solely by their willingness to try and get one over on the governmental bodies in charge of intellectual property rights. It's the freedom to try anything you want, no matter how stupid or futile it might be, that is fundamentally American, you might argue. It probably won't work out, but at least you tried.

Questions about the future of intellectual property are seemingly tied to the future of creativity as it relates to technology. We've already seen the USPTO look for input and guidance as to new rules for copyright law regarding works created by artificial intelligence, and the matter will only become more pressing as AI becomes more adept at creating unique works that warrant copyright protection. It's a complicated topic, one that wrestles with questions originated in our science fiction: can machines be said to have consciousness, enough so that their work could rise to the same level of that created by human hands and minds?

There's been much written about the manifold issues facing YouTube as it comes to copyright complaints — not only the inevitable problem of copyright violation but the manner in which the tools offered to try and address the problem are weaponized by bad-faith actors or overzealous entities in an attempt to simply remove videos and creators from the site, regardless of the merit or severity of the alleged violation. Users compiling enough strikes for copyright violation, as reported by other users, faced the possibility of having their account suspended, and even in cases where the complaint was proven unwarranted, there was still the time and hassle of having to deal with the complaint. It was an outcome as concerning as it was predictable, seemingly another case where tech companies shunting off responsibilities to users simply created a new problem while not fully addressing the old one.

Culpability has become has become an ever-more-relevant question in cases of copyright violation, with technology making both the dissemination of creative works and the subsequent violation of creators' rights easier than ever. The ultimate blame in those belongs to those actually perpetrating the acts, but our sense of justice and the system put in place around that notion seeks both to assign some responsibility and punishment to those who might have enabled misdeeds through direct action or negligent inaction. It's something that we see from large corporations, where inaction is often the norm for a variety of reasons, although in light of one recent case, those same companies might feel compelled to get proactive.

The battle for creators against copyright infringement and piracy is long and ongoing, and made all the more difficult by the fact that the adversary is forever changing and shifting; no sooner does one site shut down than multiple more pop up to take its place, like the many-headed hydra that vexed Hercules and Captain America alike. Or perhaps in citing actual history, it might be more apt to say that it's hard to pin down an enemy that can simply slip away once a battle is lost; the operators of a particular site may face their day in court, but users can simply migrate to the replacements that arise.

There's a dichotomy to being big, a paradox that comes with size relative to those around you: it's understood and expected that you should take the care to look out for those smaller than you as you make your way through the world, and yet being big gives you the option to simply do as you choose by virtue of the fact that you can make others get out of your way, lest they be knocked over or crushed.

It's important to establish at the top that we understand and value the importance of trademarks as part of the intellectual property portfolio that every company establishes and develops as part of their growth. Trademarks are necessary to protect businesses from infringement, as well as protecting consumers against knockoff or impostor products or brands. That being said, there are times that trademark law can seem to veer into absurdity, and that the principles designed to make for a better commercial marketplace for all seem to be gamed to benefit a certain subset of companies with more wealth and power (and access to power) than the mom-and-pop store down the street.

It's the rare occasion when someone seeks out or welcomes a court case, and for good reason. Our legal system is long and costly, and those seeking justice or remuneration can often leave disappointed. Even those pressing their cases through the civil courts have to feel some sort of reluctance given those facts. We'd like for the system to be better, fairer, less burdensome, to be sure, and there are those working to try to make it so, but for the time being it is what it is, which makes the case of courting a court case something worth examining.

It doesn't take much to ruin a joke, and it's a sure bet that once corporations get involved and try to get in on the joke that it's run its natural course as something that was organically cool and fun and has now entered the phase of its existence where it's co-opted to the point of losing its edge and meaning. You can almost set your watch to the time it takes for a meme to be born on the internet to the time that it ends up on some company's Twitter page in post trying to sell you something, even if it's just that the particular brand is hip and with it and definitely a fellow kid.

Historical fiction is a staple of media, from books to television to films. It also frequently presents questions and challenges as to copyright and ownership and claims over a particular story, or versions of that story. It's certainly more nebulous than work of pure fiction, in which cases it's far easier to tell when another work is derivative, even when questions of intent and coincidence muddle things.

It's once again time to look to the Supreme Court for its determination on a matter of great import to the very foundation of our nation as one still capable of upholding its laws, norms and traditions in the face of wanton disregard of those very precepts.

There's been some time spent in this space considering how technology will impact the future of copyright law, both in therms of how copyrighted material is now made (and how much), and also in how we as consumers are able to interact with that material, and if we so choose, violate that copyright with something like ease. It's been a consideration of how technology will change the relationship between creator/owner and the public, but to this point the principal players have remained the same.

Regular readers will recall that I cited a trademark case involving Booking.com and the U.S. Patent and Trademark Office as the matter of the moment, the case that was undoubtedly from of mind for every legal observer and pundit, the one that would shape the very future of these United States and our conception of ourselves as a civil society within something like democratic governance. And as loathe as I am to admit it, I was wrong. There is of course a monumental case awaiting the court's ruling, one that will actually have far-reaching impact, with consequences resounding throughout halls of power in the land, and I'm ashamed to say that I somehow missed it.

Music copyrights and royalties are already a sordid and messy affair, and that's without the added complication of streaming. There's artists, publishers, songwriters, and any number of other folks who have some stake in any given song, which means that there are just that many more people who can get lost in the shuffle as works move across media. Now add in a group that kinda exists but not really, with real songs for a fake documentary that's actually one of the great works of comedy filmmaking of the past (if you don't believe me, ask The Guardian) and you can find a particularly complex case of copyright and music.

As ephemeral and inconsequential as they many seem, GIFs are now an important part of the broader cultural conversation around TV or movies, all of which takes place on the internet, where GIFs are the lingua franca of the medium. It's how fans create a shorthand with one another, and it's also how shows and movies we've never seen can nevertheless have some fragment embed itself in our minds. They're the most important, least important part of a terribly important unimportant subject.

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.