The Traklight Blog

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.

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.

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.

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.

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.

I've written before about the problems with both the aggressive assertion of copyright and the inability of online platforms to discern legitimate claims from the misuse of reporting tools on offer, with YouTube as the convergence point of these dual phenomena. Invariably the response from these platforms is that their user base is too large and too spread out to offer any effective administrative policing, so the task falls to users to police one another. The problem with this approach comes from the baseline assumption that users can be trusted with these tools and this power; as we've seen in society at large, while the vast majority of people will probably do the right thing, it only takes a few to do wrong and ruin the whole thing for everyone.

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.

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.

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.

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.

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.