The Traklight Blog

A lot of attention in any intellectual property case is paid to either the plaintiff or the defendant, or both, and rightfully so: theirs is the dispute at the heart of the case. Far less attention is given to the judges in any of those cases, which again seems as it should be; like a referee or umpire at a sporting event, the job is to adjudicate the action between the two main parties and apply the rules as written, and if you’re becoming a principal actor in the story the chances are you’re doing something wrong. But what if you’re not supposed to be refereeing the game in the first place?

Non-fungible tokens (NFTs) are hard to escape in the news as the hot tech trend of the moment, as it seems that every business is jumping into the game trying to make some money. And if you’re wondering how exactly they make money, or what those buyers are purchasing, or really what any of it is about, you’re not alone; as prolific as stories about NFTs are articles attempting to explain what NFTs are to a public still working on wrapping its collective mind around how blockchain works. 

Capitalism as it exists in this moment (and for some significant portion of its history) prizes individualism, or at least a version of that ideology in which corporations as entities are considered individuals. It’s a zero-sum game, we’re led to believe, and so each company is out to claim some share of the market, thereby taking from or excluding competitors. There’s not much room for collective action, and as such each becomes in its way vulnerable to discrete actions from bad actors. 

It’s not often that intellectual property makes truly big news, but it’s not often the case that the fate of the world seems to hinge upon a vaccine. (Though to be fair, vaccines have shaped the course of history on those occasions when they have been introduced to curb disease or illness.)

Much of the narrative about IP lawsuits carters around the separate and seemingly unequal systems of justice that exist depending on net worth. Bigger businesses with more resources can afford better lawyers for longer, and in many cases indefinitely, as in-house legal teams are a thing for those select corporations. Small businesses can struggle to put together a defense, and can only maintain it for as long as the money holds out, and so are less likely to get the outcome to which they are justified. IP lawsuits are a cost of doing business for some, and an existential threat for others. 

Multiple things can be true at once; we can agree on the notion that patent trolls are bad, and that they and others who abuse the currently broken system of adjudicating IP law are doing considerable harm, and also concede that, in the case of some of the companies targeted by these entities, the eventual judgment (should there be one) isn’t enough to really cause them lost sleep. That’s not to say that something shouldn’t be done to curtail patent trolls and their practices, just that their actions serve to slow down some of these megacorporations not one bit. 

It would be fair to say that while this blog is generally in favor of intellectual property rights and the ability of creators to protect and profit from their creations, I’m skeptical of the harm that comes from an overly muscular approach to enforcing those rights. Creation or ownership comes with benefits, but nowhere is it outlined that those rights extend so far as to prevent others from exercising their own, whether it be fair use or any other right protected under the law. 

It’s hard to generate much sympathy for megacorporations, particularly at a time when they are bigger and more powerful than they’ve ever been, but there are instances where even they can garner something like sympathy among the broader public (or at least the public that follows intellectual property news.)  These massive companies aren’t necessarily popular, to be sure, but less popular still are the patent trolls that are seeking to make their living through frivolous, baseless lawsuits. 

In reading about the many specious patent lawsuits pursued every year, it's some small comfort to know that there are judges still serving as gatekeepers to prevent many of these cases from going any further than they already have. Perhaps not enough, given that certain jurisdictions carry a reputation for being favorable to those types of lawsuits, but at least observers can feel that they system is ultimately working as it should, shaky as that belief may be.

Technology, particularly that designed with an eye towards curbing reliance upon fossil fuels and/or alleviating the incipient climate crisis, is meant to be the magic bullet to save the human race. But that tech is still designed by people, and as much as the machines are meant to represent human advancement, the humans behind it are still tied to some of the baser instincts that landed us in our precarious position in the first place.

In many of the intellectual property suits that make the news, it's easy to see the penalties or consequences as something of an abstraction. Dollar figures in an article never do seem quite real; it's not as though the stories come complete with a picture of the pile of cash to be handed over to the winning party. And in the case of massive corporations, those figures never seem that much relative to what we think or know of that company's bottom line; what's a $50 million judgment against annual revenue many multiples greater than that?

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.

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?

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.

As a political science student, you learn that much of what law and regulation ends up being in practice comes down to interpretation and implementation and enforcement on the part of the relevant agencies. Laws don't mean much if they're not enforced, or if the enforcement ends up being something different entirely from the original intent of lawmakers and regulators, but that, as we learned, is the nature of a government that relies upon a bureaucracy of numerous agencies and thousands and thousands of employees that can operate with semi-autonomy absent any direct guidance from above.

It's become so easy to expect the worst in the current crisis that it can be surprising when you see positive stories appear in the news, even if they're at the periphery.

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.

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.

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?