Extra! Trademarks? What Telecommunications Can Learn From IP Law To Combat “Fake News”

Formal news broadcasts play a role in a lot of games that focus on story: Deus Ex: Human Revolution centers itself around the news broadcaster, and the game culminates in the decision of which news story to broadcast. Starcraft II’s Terran campaign allows the player to explore the storyline by watching news broadcasts. Borderlands 2 allows players to follow news broadcasts from different sources as the main storyline progresses. In each case, there is always a gap between the news story that is presented and the information the player has. Whether the news is explicitly propaganda, merely biased, or simply missing information, each game underscores the fallibility of the news as a primary source for information.

Subjectivity, bias, and context can change the interpretation of a news story. Words themselves can also be subject to changes in context and intent. The term “Fake News” gained fame when used by Trump to accuse CNN of, essentially, being left-of-center. However, it has more recently been used to refer to Russian hackers spreading propaganda and disinformation on Facebook and other social media under the guise of non-biased, traditional-style newsmedia.

Trademarks: How We Know What is From Whom

The goal of trademarks is to reduce consumer confusion by establishing clear connection between goods/services and the manufacturer/provider. This consumer knowledge is considered essential to a healthy marketplace and – in many cases—to consumer safety. Applying the same fundamental concepts of trademark law to telecommunications law might have a positive effect on combating certain forms of so-called “Fake News.” By requiring each news source to register digital certificates with social media platforms, consumers could be more confident in the source of their information. The information may still carry the biases of the institution, editor, or author of the news piece, but the consumer would be aware of that possibility from the initial contact with the article or video. Just as trademarks do not enhance the quality of a good or service, digital certification would not ensure high-quality, un-biased news containing only perfect information. Similarly, even under robust trademark law, counterfeiting (and other violations) do occur. There would be a risk of various hacking attacks that would allow “Fake News” to be published under the name of a news source that did not actually produce it. However, such a hack can be addressed and corrected in ways that are not possible in a news marketplace without identifying information for news releases.

Trademark law may even be brought to bear directly on the Fake News problem. News outlets often develop their own styles and designs that remain consistent over time, eventually becoming associated in the minds of consumers with the outlet. This could be interpreted as trade dress, and a case could be made that this is a type of intellectual property subject to legal protection. Enforcement of this would likely be very difficult against foreign, anonymous violations, but creating a culture of more regimented, clearly defined news outlets would be beneficial in helping consumers spot outliers that don’t fit the known news providers—and treat such new providers with appropriate scrutiny and supplemental research.




AI on the Horizon- a New Dawn of Data Science?

Writing about Horizon: Zero Dawn in the context of data privacy is a bit of a joke. It’s looking straight past the elephant in the room to comment on an interesting lamp. The central premise of the story is that humanity created powerful artificial intelligences and put them in extremely advanced robotic structures, and this pretty directly led to the total annihilation of all life on Earth by 2065 (the robots used biomass as fuel). With barely a year left, humans recognized their impending destruction and hastily banded together to create several new AI systems that would be equipped to reboot life (and humanity) after the machines destroyed life and then themselves lost all power. It’s a fascinating science-fiction story that suggests questions about the complex interconnections of economics, ecology, technology, and humanity. Artificial intelligence is deeply at the core of this story, as both lifegiver and deathbringer; as both the thing that is controlled and the thing that controls.


AI As The Child That Cannot Define Reality

AI is very dependent on its creator. The basic framework of its realities and possibilities are defined by its creator. So far, we make AIs that basically do what we do on a bigger scale. We teach the program about correlation, and it starts doing the math– using larger data sets than we can manage, and computing much more quickly than we can. But it is fundamentally locked into the system of objectives, limits, and tools that we define (or fail to define) for it. There is some question of whether AI will think categorically differently than humans. AI is very good at finding correlations and probabilities. I don’t know if AI will ever conceptualize causation the way that humans do. I don’t think that humans are good at answering “why” when asked about the world, and I don’t think AI will do substantively better. In fact, AI is likely to do worse, if only because it doesn’t need to care. If AI can find a sufficiently high correlation between two things that the AI can reliably predict an outcome, it has no reason to ask why the things correlate or why they are good for predicting an outcome.


Can AI Superiority in Statistics Outshine Human Capacities for Understanding?

Data science usually tries to serve 1 of 2 purposes: Find a correlation or provide an explanation. Statisticians are pretty good at the first one- and computers can be really fantastic at it. But the second requires “understanding” the data (and exploring that key word quickly drives to some of the core questions about philosophy of mind and human identity at the heart of AI). Humans are often not good at truly understanding the data they perceive. I’m not convinced that AI will be able to understand data (at least in my lifetime), and I suspect that explanations require understanding. AI will be able to detail the correlations that they find—they can show their work, in essence. But except for the most dedicated disciples of Hume, humans suspect that causation is different from correlation. In a fun play on words, I expect that AI will be quite Hume-ean for the next several decades.


I’m Not Against Big Data, But…

The reason I’m consistently skeptical of the belief in Big Data as some kind of panacea of the future is twofold: 1) A loss of context (how the individual creates the data), and 2) A loss of application (how the data applies to the individual). Big Data is prone to certain types of misinterpretation based the lack of context that is a by-product of reducing lives to their data points. This makes Big Data difficult to understand and apply, especially when AI is analyzing it. AI works very comfortably with data points, but it does so without ever asking about the nature or meaning of those data points.


Correlation Describes, Understanding Predicts

It’s tempting to think it doesn’t matter how Big Data and AI solve problems, as long as they solve the problem. A marketing department doesn’t need to know why people in Exampletown buy their product- they just need to know where they’re selling well! That’s fine as a reporting tool, but what about as a predictive tool? And what about as a feedback tool for future product development? If the consumers love the packaging, but marketing thought it was the flavor that keep their product flying off the shelves, marketing could be completely dumbfounded when their new packaging rolls out and sales plummet. Getting something to work is all well and good—but you need to know why things are working if you want to repair, improve, expand, or optimize.


Conclusion: “We Shape Our Tools, Then Our Tools Shape Us.”

Because AI and Big Data are poorly disposed to explaining the world, people (especially in business) are more likely to play to the tools’ strengths of describing the world by finding correlations. People will follow the example of the AI and demur from seeking understanding or meaning in the data.

In Horizon: Zero Dawn, the threat of AI was really its control of enormous robots that consumed life. I still don’t see the problems with AI being quite so theatrical. Rather, I have concerns about the power of AI to limit the plasticity and creativity of the human mind. There is a lot of danger that AI will start teaching people to think more in terms of correlation and less in terms of explanation. Correlation is a very useful statistical tool, and there are a lot of projects that can be accomplished with it. Explanation is not always necessary or appropriate, but it is still a very important tool in the toolkit of human thought.


Bonus Content: Privacy’s Meaningful Purpose

A few years ago, I dreamed up a concept of “meaningful privacy” to better define the discussion around the broad topic of privacy. I noticed that not every piece of data is equal. Some things are kept private because there is a concern of actual harm if the information is publicized. Some other things are kept private because of societal or cultural norms and traditions. Privacy is not and end in itself- we have it for the purpose of protecting information. However, different data has different value. Therefore, the value of privacy is relative, varying according to the data in question. One effect of this concept is to treat different breaches according to the type (or value) of data in question.

There is a huge and illuminating problem with this idea of “meaningful privacy”: Just because someone didn’t steal anything from your house doesn’t mean you feel comfortable about a break-in. Although privacy is not an end in itself, it is intrinsically upsetting when our privacy is violated. The biggest fear is the potential for future violations of privacy: just because no harm occurred as a result of one violation, there is no guarantee about future violations. Furthermore, a past violation of privacy indicates a vulnerability and thus the potential for future violations. With a diminished expectation of privacy, there is diminished privacy. Privacy is of little use if it cannot be relied upon.


Horizon: The Dawn of Zero Privacy?

Horizon: Zero Dawn is a problem because I don’t know which game I have to slide out of my top 5 in order to fit it into that list. (It might be have to replace “Child of Light,” which pains me, but replacing any would pain me… maybe “Outlaws” will move to #6 …) It’s an incredible game in its own right, with beautiful artwork, well-written characters, and genuinely fun gameplay. I find its story especially fascinating—and particularly relevant as we grapple with a framework for governing and living in an age of digital information and interconnected devices. Though its central technological focus is on Artificial Intelligence and the future of humanity, it touches a multitude of topics- including data privacy.

Although Judge Richard Posner famously decried privacy as a way for bad people get away with bad things, privacy is important for personal development and free association. Privacy is essential to our culture, and it is only valuable inasmuch as it is protected and reliable. Our expectations of privacy follow us into our digital extensions. However, one of the best methods of securing privacy is impractical in the face of consumer demands for interconnection and convenience.

I. Can We Have Privacy by Design When We Demand Designs that Compromise our Privacy?

The Federal Trade Commission’s favored method for protecting Privacy is “Privacy By Design.” In simple terms, this often means designing a product to rely as little on privacy as possible. After all, if no data is collected, there is no data to steal. However, there are serious questions about the feasibility of this approach in the face of consumer expectations for interconnected devices.

Privacy by Design is a much better idea than the sophomoric idea of increasing security measures. Designing a house not to be broken into is better than trying to just put a good lock on the front door. To put it another way: Think of it as building a dam without holes rather than trying to plug all of the holes after you finish building.

I’ve heard tech entrepreneurs talk about “The Internet of Things” at conferences for many years, now. They talk about it like it’s a product currently in development and there’s an upcoming product launch date that we should be excited about- like we can line up for outside of a retail store hours before the doors open so we can be the first to get some new tech device. This is not how our beloved internet was created. Massive networks are created piece by piece- one node at a time, one connection at a time. The Internet of Things isn’t a tech product that will abruptly launch in Q3 of 2019. It’s a web of FitBits, geolocated social media posts, hashtags, metadata, smart houses, Alexas and Siris, searches, click-throughs, check-ins, etc. The “Internet of Things” is really just the result of increasingly tech-savvy consumers living their lives while making use of connected devices.

That’s not to diminish its significance or the challenges it poses. Rather, this highlights that this “Coming Soon” feature is really already here, growing organically. Given that our society is already growing this vast network of data, Privacy by Design seems like an impossible and futile task. The products and functions that consumers demand all require some collection, storage, or use of data: location, history, log-in information- all for a quick, convenient, personalized experience. One solution is for consumers to choose between optimizing convenience and optimizing privacy.

II. A Focus on Connected Devices

Horizon: Zero Dawn is a story deliberately situated at the boundary of the natural world (plants, water, rocks, trees, flesh and blood) and the artificial world (processed metals, digital information, robotics, cybernetics). As a child, Aloy falls into a cavern and finds a piece of ancient (21st century) technology. A small triangle that clips over the ear, this “Focus” is essentially a smart phone with Augmented Reality projection (sort of… JawBone meets GoogleGlass and Microsoft Hololens). This device helps to advance the plot, often by connecting with ancient records that establish the history of Aloy’s world (it even helps with combat and stealth!).

It’s also a privacy nightmare. The primary antagonist first sees Aloy -without her knowledge- through another character’s Focus. Aloy’s own Focus is hacked several times during the game. A key ally even reveals that he hacked Aloy’s Focus when she was a child and watched her life unfold as she grew up. (This ultimately serves the story as a way for the Sage archetype to have a sort of omniscience about the protagonist.) For a girl who grew up as an outcast from her tribe, living a near-solitary life in a cabin on a mountain, with the only electronic device in a hundred miles, she manages to run into a lot of privacy breaches. I can’t imagine if she tried to take an Uber from one village to the next.

Our interconnected devices accumulate deeply astonishing volumes of data- sometimes, very personalized data gets captured. In a case heard by the Supreme Court this month, a man in Ohio has his location determined by his cell phone provider. The police obtained this information and used it as part of his arrest and subsequent prosecution. The Supreme Court recently heard a case about the use of warrants for law enforcement to access cell phone data. (This is different from the famous stalemate between the FBI and Apple after the San Bernadino shooting, when Apple refused an order to unlock the iPhone of a deceased criminal.)  As connected devices become omnipresent, questions about data privacy and information security permeate very nearly every side of every facet of our daily lives. We don’t face questions about data the way that one “faces” a wall; we face these questions the way that a fish “faces” water.

From cell phone manufacturers to social media platforms, the government confronts technology and business in a debate about the security mechanisms that should be required (or prohibited) to protect consumers from criminals in myriad contexts and scenarios. In this debate, the right answer to one scenario is often the wrong answer for the next scenario.

Conclusion: Maybe We Don’t Understand Privacy In a New Way, Yet

The current cycle of consumer demand for risky designs followed by data breaches is not sustainable. Something will have to shift for Privacy in the 21st century. Maybe we will rethink some part of the concept privacy. Maybe we will sacrifice some of the convenience of the digital era to retain privacy. Maybe we will try to rely more heavily on security measures after a breakthrough in computing and/or cryptography. Maybe we will find ways to integrate the ancient privacy methods of the 20th century into our future.



A Thermos Full of Aspirin For the Headache of Trademarked Words Acceptable In Scrabble

A Law of Language

Language is interesting for 3 reasons: It’s neither as stable nor unstable as we believe it is, it’s more important than we think it is, it’s the primary means of human minds interacting and yet it’s not clear what it is or how it works. A human mind exploring language is something like traversing a museum of optical illusions that is constantly reconstructing itself based on the exploration.

I think this is part of why I love trademarks. Trademarks are one of the places where boring, unimaginative people (who care only about money and the weather, but only sincerely about the first) are given an example of why it’s ok for me to care about interesting, abstract ideas like language. Trademarks (especially word marks) are about the use of language to describe and define the business world. However, law wants to be stable and static, and language sometimes wants to be fluid and miasmic. Because law is made of language, there are some challenges that come from language in every field of law- but trademark law is almost made of language puzzles.

Scrabble: A Classic Language Word Game

Sometimes I get salty when I play Scrabble. Not because I lose a lot (though… that too), but because I see dictionaries as valuable tools for describing and explaining language.

I don’t think Scrabble is actually a game about language. It is about words. Some words, at least: sequences of letters that are on an approved list. The question that underpins my frustration is “How do we decide which sequences of letters make it on that list?” I think that question is really about the difference between words and language. Words are just strings of characters that we can list. Language is a complex network of decisions about communication. The flexibility and organic nature of language is the foremost challenge in determining the official list of proper and acceptable words.  The Great Scrabble Tradition (and probably also some rules) holds that “foreign words” and “proper nouns” are not permitted. Depending on the house rules, this usually includes company names, brand names, and product names.

I recently had the opportunity to play the word “thermos.” I stopped myself- I knew the word was trademarked over a hundred years ago, which would make it an ineligible word for play. I later looked the word up, unsure if there was some “definition 2” trick that I didn’t know about. I was surprised that the word was acceptable for play in Scrabble. I leapt into research and found out that the thermos trademark was actually cancelled in 1963 as a result of a Federal Circuit ruling that the word had become generic! I was so excited to learn about a trademark cancellation by a court that I didn’t even remember to be salty that I could have won that game if I’d known I could play that word. A court ruling like that is pretty rare, so this was a very exciting find.

Genericized Trademarks: A Vibrant Afterlife for Intellectual Property

Not a lot of words have the distinction of being introduced to the world as a label with a business goal in mind, and then transform into a piece of common parlance. But when they do, it is often because the business was too successful.

In copyright, works automatically become part of the public domain after a fixed number of years (realistically, whatever time Disney tells Congress to choose, but at least Congress writes down the most recent number of years in the latest copyright law amendment). Patents expire automatically after a fixed number of years (20 years for a utility patent, 14 for design). Trademarks don’t have a built-in expiration date- they’re generally just valid until they’re no longer used in commerce. But on rare occasions, the word can become generic over time. As more people get familiar with a product, they use the special name of the product as meaning the general name of the product. In my own lifetime, “Google” has changed from one of several search engines to the verb for general online research. Google fights this, a little, but they’re going to lose. It’s a little like when people try to control  copyright violations in the context of the internet. It’s very hard to stop people from singing and drawing what they want to, even if you can curb some of their publications. But if that is hard, it’s nigh impossible to stop people from using language the way they want to.

Conclusion: Trademark Law is For Consumers as well as Business

I love the poetic irony in trademark law: when you dominate the market too completely, you lose something about what made you special. When Aspirin was introduced by Bayer to American doctors, “Bayer listed ASA with an intentionally convoluted generic name (monoacetic acid ester of salicylic acid) to discourage doctors referring to anything but Aspirin.” This somewhat underhanded marketing move contributed to a 1921 court decision that effectively cancelled Bayer’s trademark.

Trademark law is made for a thriving, competitive marketplace. Its purpose is to help consumers navigate a busy and crowded marketplace accurately, and without being deceived. When the marketplace is no longer competitive, trademark law is less necessary. The rules concerning generic trademarks emphasize that trademark law exists to protect consumers from confusion and deception. If trademark law was centered on protecting businesses*, it would not make sense to cancel the trademark of a company that had dominated the market.

Just as Scrabble is a word game, not a language game, trademark law is a consumer protection law, not a business law. The distinction seems small, but sometimes a small difference matters. Like when you decide not to play “thermos” and lose a round of Scrabble by less than 10 points. One word– and the legal and linguistic status of the word– can make a difference, for both Scrabble and trademarks.


*Trademark law does protect businesses, of course: it prevents other competitors from benefiting from the branding and goodwill of a company, and gives legal backing to the abstract notion of “goodwill” that makes it a viable, montized asset of a company.


Elon Musk’s Open AI beats Pro DOTA Players

It’s not surprising that bots like Open AI can beat human players– it’s not like a computer program is going to misclick. Computers do really well at playing defined games and accomplishing carefully specified tasks. Computers don’t do well at having emotional states, or handling logical contradictions (hypocrisy, cognitive dissonance).

1) Computers don’t have desires. They might have a desire for self-preservation, but it isn’t clear that they would. If an AI had a preference for self-preservation, it would only be as a means to achieving the end of its programmed goals. (A pancake-serving robot would only want to remain alive in order to keep serving pancakes.) The lack of preferences and desires is the central emotional difference between humans and robots.

2) Computers work very well in clearly defined systems. They’re excellent at playing games like chess, go, and DOTA. They probably wouldn’t do well at “shooting hoops” or “ring around the rosie,” where the purpose of the game is to “just chill out” or “have fun and be happy.”  They might eventually get to the point where they can solve problems by thinking “outside the box,” but the biggest concern with AI is that the first few attempts at “thinking outside the box” will result in disaster, because the computer may do tremendous damage in the course of achieving a simple goal.

I don’t fear a robot uprising because I don’t expect robots to want to rise up. That is an incredibly animal –and especially human—desire: to seek to overthrow power and become powerful. I don’t think that robots will arrive at a sense of justice or self-respect of their own accord. (Though it would be very interesting if they did, I do not find any convincing argument that this would happen.)

The biggest concern isn’t a sentient, self-aware, self-repairing, self-replicating robot that inflicts retribution upon humanity for their collective sins. The much more realistic problem with AI is the likelihood of the kinds of problems we experience all the time with computers, just compounded to more dangerous scenarios (e.g., someone will die because the robot operating on them had a glitch or a system crash).


When Covering Your Back, Remember That Legal Analysis Shapes Risk Analysis

In 2005, Jonathan Coulton recorded an original arrangement of “Baby Got Back” by Sir Mixalot. In 2013, the popular TV show Glee featured an arrangement of “Baby Got Back” that is, to my untrained ears, indistinguishable from that of Mr. Coulton. I have no evidence to offer that plagiarism or copying occurred. I simply cannot imagine any good-faith argument that the arrangement of the two productions is dissimilar in any way.

Copying Can Be Legal

Even if Glee did steal the arrangement (and I’m not saying they did, and I have no knowledge that Fox ever said they did), the show’s producers and network (Fox Broadcasing) didn’t break any laws. The general consensus by attorneys interviewed by news sources is that blatantly taking the arrangement of a musician’s cover of a third party’s song (especially if the cover is covered by Creative Commons) is mostly ok.

So, let us assume that Fox stole Coulton’s arrangement (for the sake of the academic dissection of a hypothetical case). Let us further assume that Fox is completely innocent of all crimes and liabilities. Now, granting Fox’s total innocence, I conclude: Fox made the wrong decision and failed to truly, meaningfully protect their Intellectual Property portfolio. Wielding copyright offensively offended people and undermined Fox’s goodwill (which is the value of a trademark). Losses in trademark  are rarely worth gains in copyright.

Two Legal Analyses To Get to The Bottom Line

There are two approaches to the question of whether Fox ought to use Mr. Coulton’s arrangement.

Analysis 1

An attorney examines the facts surrounding Mr. Coulton’s arrangement. The attorney researches the law that applies to music covers and the extent of copyright over arrangements. The attorney applies the relevant law to the facts and offers a professional opinion as to the likely legal consequences that would result from copying Mr. Coulton’s arrangement. Fox executives and producers consider the opinion and weigh the risks and rewards, and make a decision.

Analysis 2

An attorney performs the same procedure for analysis as above, but with one addition: The attorney also evaluates the effect on the full IP portfolio of Fox, including their trademark value (which is a concept that is almost interchangeable with “goodwill” in law and business).

Why would such similar analyses lead to a different conclusion? Because the executives and producers are chiefly concerned with the objective mathematics of “the bottom line.” The first legal analysis looks only at one narrow question (“Can we avoid losing litigation if we do this?”), while the second analysis addresses as more broad question (“What effect will this choice have on our IP portfolio?”). By including the harm to the trademark (as “loss of goodwill”) in the analysis, the executives now have different numbers to work with when calculating their bottom line.

Business Law 301: Just Because It’s Good Under the Law Doesn’t Mean It’s Good Under the Bottom Line

The moral of this story is the same lesson that I offered to Nintendo earlier this year: Just because it’s legal doesn’t mean it’s good business. You can legally get away with a lot of things – particularly if you have a lot of attorneys helping you. It is easy for business executives to get caught up in the details of what they can “get away with.” We repeatedly see examples of companies loosing their long-term, broad vision of building a brand. Companies are generally better off when they do not sacrifice short-term copyright wins for long-term trademark growth.

The Tiny Legal Differences That Make A Big Difference

“Building a brand” has a lot to do with intellectual property, but few people distinguish between trademarks and copyrights. However, the differences matter. Executives often think in very concrete terms, and the concept of a trademark is much more abstract than the idea of copyright.

If copyright law seems a little up-in-the-clouds abstract, trademark law is in low Earth orbit. When there’s a copyright dispute, the questions of ownership and rights might be murky, but the thing at issue is very clear: a photograph, a book, a script, a painting, a song, etc. Trademark law is much more robust than copyright law, but the subject matter has always been very, very abstract and vague: how consumers think and feel about a good or service—or the ability of a consumer to identify the source of a good or service. The most tangible that subject matter ever gets is anecdotes and consumer surveys—which always come with a margin of error, by its nature as a set of statistics. The “thing” that trademark law ties to can be very concrete in a counterfeiting case, but outside of that, it’s just “goodwill”—the special feeling that consumers have in their hearts for a good or service.

So, when an executive is faced with “protecting the intellectual property of the brand,” it’s easier for them to think about something concrete and tangible. It’s easier to think that “protecting IP” means “stop someone else from benefiting from an image or sound.” And that is one important part of IP protection. But IP protection is means, not an end. The goal of IP protection is to build your brand and your business. Failing to understand this principle leads executives to make asinine decisions that make them look hypocritical and foolish while undermining their own businesses. Failing to know the difference between the categories of Intellectual Property can mislead smart businesspeople into acting on a misleading risk analysis.

It Would Be Unfair To Make Executives the Butt of The Joke

It is only fitting that I challenge myself on my analysis. Who am I to make such cavalier judgments? The executives at Fox (and other large corporations) have (combined) many decades more experience than I have. How could it be possible that I am right where they are wrong? Is it probable that I understand their product and their brand better than they do? I’m sure a lot of them have law degrees (and I have no doubt they talk to attorneys almost daily) – so why do they not share the same legal analysis or conclusions that I do?

I think that their positions force a particular focus. Business executives stand to lose a tremendous amount from failing to protect their IP. I lose nothing if my analysis of Fox’s or Nintendo’s business decision is wrong. I don’t have the same pressure to start from (or remain in) a deeply defensive trench. My risk-free position liberates me to be dangerously wrong—and therefore allows me to stumble into better ideas than the risk-laden executive can.

This is why I think it is the newer and smaller entertainment companies that will continue to blaze trails in new perspectives in managing their IP portfolios: They have more to gain and less to lose in taking counter-intuitive risks and re-imagining what it means to “protect IP.” It’s scarier for the larger companies to take anything less than a Draconian approach toward their intellectual property. Nintendo can’t imagine letting YouTube see someone play their games for even a few seconds. DevolverDigital can’t imagine NOT letting YouTube see every minute of every game.