There are two discussions to have about intellectual property in the ecosystem of the internet: one is about what laws, policies, and procedures are fair, ideal, economically optimal, and so forth; the other is a discussion about what is workable, functional, or feasible.
Actually enforcing trademark, copyright, or telecommunications law has proven to be a significant challenge in the 21st century. It is worth remembering that the distribution of songs on Napster was a violation of copyright law from the day the site launched. The legal action around Napster was only partly to settle any ambiguity around the question of whether digital copying and distribution of media constituted infringement—the new chapter that opened with Napster was a world in which copyright infringement became almost unenforceable.
AN ENVIRONMENT OF MISINFORMATION
The public perception of how copyright and trademark law work has been significantly shaped by the inability of rights holders to enforce protections over their trademarks and works. In a recent discussion on a potential trademark opposition, the comments on YouTube included numerous references to the abundance of available products that would be potentially infringing the trademark in question. I cannot be sure about why attention was drawn to these examples, but I suspect that many people thought that the availability of [potentially] infringing goods is evidence that a trademark is invalid. I’m pretty confident that the TMEP does not specify that trademarks are invalid if they are infringed.
The internet is awash in examples of copyright and trademark infringement. Most memes involve at least copyright infringement (transformative analysis notwithstanding), if not also trademark infringement. Etsy has published guides for its sellers to specifically point out that the availability of other infringing products does not mean that the product is not subject to trademark or copyright protection.
BUILDING SOLUTIONS WITH AN EXPECTATION OF RESISTANCE
The problem is not just a question of whether a work ought to be subject to protection, or the scope of the protection. The problem is also how to enforce those protections. Adobe, Twitter, and the New York Times Company have been working on a new solution: The Content Authenticity Initiative. The idea, still in its earlier stages, seems to be a kind of metadata tagging system to allow images to be traced back to their sources—thereby giving credit to the original artist or photographer.
There are, I’m sure, concerns that adding such traceability to images compromises security, insofar as it compromises anonymity. It always seems to be the case that those who want to optimize their security and anonymity tend to avoid products and services provided by the market-dominant companies. The question of whether preserving anonymity is in the interest of either the internet or society is a larger discussion for another post (or maybe another blog entirely)—but as far as copyright and trademark are concerned, reducing anonymity is essential in adjudicating infringement claims.
I’m not sure if the idea will ever see implementation. I suspect that if it does, it will be used more as an opt-in tool for communities of artists and rights holders to track their works. This still has very useful implications, but I have little doubt that those who want to find ways around it will be able to do so. It is the nature of the digital era to be continually skirting around efforts to enforce the law, particularly where the capacities of new technology and new media have made [re]production and distribution possible in a new way and to a new extent. It feels like there is a cottage industry build around fighting and breaking any efforts to enforce copyright or trademark protections, and the ongoing escalation between the rights holders and the resistance has lead some industries into places they might not have otherwise gone. I suspect that always-online gaming would not have become as prevalent as it now is if previous, off-line DRM efforts had not been so viciously demolished—and I further imagine that loot boxes and “surprise mechanics” would not have become an industry norm without that push towards always-online game models.
I don’t think I can win any prognostication points for predicting that this war will continue through 2020. If this Content Authentication Initiative does see implementation, it will be undermined and circumnavigated.