The Traklight Blog

For some products, form matters as much as function, if not more so. With something like, say, your lawnmower, the aesthetics aren't so important as long as it performs the work of cutting your grass. But your car? Your car says something about you, given how much you might be investing in it. And it says something about the company that made it, which is why some car makers have labored for decades towards mastery of the form as well as the mechanics, and have sough to protect the designs they've made iconic.

There's nothing good that can't be ruined, and nothing bad that can't be made worse, and that holds true for intellectual property as it does for anything else in life. Take the Digital Millennium Copyright Act (DMCA), for example; like any law, it has its flaws, but applied in the spirit in which it was intended, the DMCA probably does more good than harm. But measuring good versus harm is always subject to the small group of bad actors willing to do the worst things they think they can get away with, and those outliers are often enough to sway at least some thinking on the efficacy of any program or law.

If you've even spent any time on Twitter (and for your sake, I hope you haven't) you recognize it as a space largely disassociated from the world in which its users live. While there are plenty of real people engaging in genuine interactions, no one is necessarily attached to any actual identity, and thus millions are large freed from the consequences that might follow them in real life. It can feel like a space to say and do whatever you want, with seemingly no one interested in stopping you, save for the overwhelming concern Twitter professes for copyrighted material. And now Japan seems poised to take that concern to perhaps absurd heights.

We've placed an awful lot of faith in technology to fix problems and generally bail us out of issues we've created for ourselves as a species, from the biggest existential threats to the smallest inconveniences. Which is all well and good, save for the fact that tech has shown itself to be as smart as we might assume it to be, or rather is only as smart as the people creating and programming it.

It's easy, in many instances, to see violations in the IP sphere to be of less consequence than other crimes we see in the news. After all, there's no physical violence done to any of the parties in those cases, with the only harm being financial, and even that is abstract or theoretical, given that what is stolen is value rather than actual dollars. That it's value is still of consequence to the companies losing out on it, and thus to those found guilty of improperly depriving that value to those who rightfully own it.

There's nothing like success to warrant a bit of added scrutiny, especially when it comes to Big Tech, specifically social media. Facebook likely longs for the days when its worst problems were questions of propriety and ownership; The Social Network might seem downright nostalgic in the face of concerns over hate speech and misinformation that threaten to unmoor democracy itself. Twitter is similarly vexed by its own efforts to curb invective and untruths, particularly from influential users. Now TikTok, not so long ago the fun new app for the youths, finds itself assailed on all sides, including on the IP front.

Should we applaud someone for doing the right thing, even if it took far too long for them to do it? That's the question many people might have upon the news that the NFL's Washington franchise has decided to "retire" their offensive nickname in favor of a new one. While the impetus for the change was largely the potential of losing sponsor dollars rather than responding to social pressures or basic notions of civility, the end result is one that most feel is long overdue, given that the campaign to change the name predates the Black Lives Matter and related movements considerably. But while the decision to change the name may have been easy in this particular moment, the actual process may prove to be harder.

Plenty of small businesses use locality in creating a brand for their business. Here in the greater Phoenix area, there are no shortage of companies that make use of "Phoenix" or "valley" or "Camelback" or some other identifier of the region in their name, and no one bats an eye; after all, the name simply locates the business in the world. Then again, none of those companies have likely tried to trademark "Phoenix" knowing that such an effort would be entirely futile?

Change is necessary if we hope to grow, if recent events have taught us anything, but change can at times be difficult for practical and commercial reasons. Names are freighted with meaning and sown into our consciousness with time and repetition, and it's impossible to simply remove negative connotations while keeping the positives, and thus names have to be changed entirely. It's difficult for some, surely, but necessary to move forward, although the growth process might not be aided by further mistakes made while trying to change.

Accountability is at the crux of this moment of our history — who bears blame for their action or inaction, particularly when the cost is borne by others. And yet it's often the case that, for those in power, accountability lies elsewhere, often diffuse and shrouded behind rules and regulations and the law. Laws can protect us, but they can also serve as a fig leaf which people and organizations use to avoid questions or silence critics.

There is a question, irrespective of copyright, of how much ownership any creator has over characters once they've introduced them into the world. Fan fiction is a very real thing, and the demands of corporate interests necessitate licensing and spin-offs and any number of gambits that turn a creative property into a larger commercial enterprise. Rights are rights, of course, and rightsholders can exert control over how or if their creations are used for so long as they own them. But what happens when work falls into the public domain, at least partially?

Verisimilitude in video games is a relatively new issue, and as seen in the case brought by Lebron James' tattoo artist against NBA2K, it brings with it a host of new issues about depiction and representations in the medium. Trademark or copyright aren't much of a concern in 8- or 16-bit formats, but design and computing power is now such that photorealistic depictions of actual items isn't just possible, it's expected in modern gaming, although many choose to go the route of generic names and brands within games to avoid any legal complications.

Intellectual property as a concept — the notion that ideas can be protected by their creators for the purpose of exclusive profit — is one that is central to the construction of capitalism as we know it both here in the United States and throughout much of the world. Businesses exist on the idea that they can offer something unique to consumers, something that must be guarded jealously, and the government does its part in offering legal protection to prevent infringement, lest the system fall apart. Like any ideology, it loses luster as it moves towards an extreme end point (in this case, hyper-protectionism beyond reasonable reading of the laws) but remains so embedded that the idea of significant change becomes harder with every passing day. Could that commitment to the IP status quo ultimately be our undoing?

The pandemic has forced nearly every business that relies upon having multiple people in a single location to rethink their models in a way that would allow them to continue operating with as little contact between people as possible. But what if your business is premised upon thousands of people gathering together in one location to watch an event, like sports leagues?

In a world that is globally connected, one thing that can remain regional and provincial is restaurants, or, given the conglomerated nature of everything today, restaurant chains. Each region of the country has its own chains that denizens swear by, and in moving west in early-2014, I became privy to In-N-Out Burger, which has no locations further east than Texas. Its reputation preceded it, and while the food is worth the wait you're inevitably forced to endure, the overheated hype from proselytizers made it impossible to live up to those outsized expectations. Nevertheless, you understand the populatity, and the brand that In-N-Out has built over decades.

The tension that once existed between the rights of the average content creator online and those of copyright holders no longer exists, because the battle has long since been decided in favor of rightsholders. As long documented in this space, the rules and regulations governing YouTube and Facebook and other content repositories lean decidedly towards those pressing a claim of copyright infringement, to the point that the act of filing such a claim has been made easy in every regard for the claimant and almost impossible to fight for the alleged violator.

We all remember movie theaters, yes? Building with large, dark rooms where we gathered to watch films together, back when such groupings weren't inadvisable? At the point where theaters were a going concern, superhero movies were the dominant storytelling form of the decade, and that success begat more and more franchises, folding in secondary and tertiary characters from the canon. That expansion not only tested audiences' appetite for super-powered fare but eventually the limits of branding.

When reality becomes stranger than fiction, one would think that scripted television would tend to suffer. Reading about the creation of the Space Force certainly felt like living inside fiction when the news broke a couple years ago, and so when the announcement of a TV show of the same name came later, it was hard to imagine how it could be any stranger or funnier than its real-world counterpart.

The crisis caused by the coronavirus has given rise to a wave of goodwill gestures form companies looking to help people throughout tough times. Whether it's out of genuine communal spirit or a desire for good will, brands have made an effort to both donate money and make available products for free in order to try and help the country get through what we've been told repeatedly are "unprecedented times." And while the gestures are not without consequence for some.

Change can seem fitful, if not absent entirely, particularly in light of recent events, but it's still doing its work in society — not always quickly, and often not in the areas in which it's most needed, but things do change. Take cannabis: once the scourge of parents and authority figures everywhere, it's now not only legal in a ever-expanding number of states and localities, it's a big business, generating millions in tax revenue for the governments that have been at the leading edge of the legalization movement. For those that grew up with the D.A.R.E. program and other anti-drug messaging, it's astounding to see how pot has been recast from an insidious poison to a reputable industry in many areas.