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.

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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.

Getting an MBA from the University of Auir?

Real Time Strategy games have a lot in common with business practices. The core of both is managing limited resources and making strategic decisions to achieve select objectives. Although the execution of the strategy is the obvious part of the game, Starcraft II rests on theory-crafting, timings, build paths, and strategic decisions.

Businesses – from industrial machinery manufacturing to food and entertainment services – have to consider the strategic advantages of short-term or long-term plans, organizational structures, short- and mid-range objectives, budgetary allocations and constraints, and adequate staffing. Real time strategy* games require consideration about long-term strategies, allocation of resource-gatherers, timing an expansion or an upgrade, investing in buildings or unit production, and monitoring army size and strength. The micro-decisions that appear, on the surface, to comprise the core of the game- tactics, when and where to move armies,  grouping and splitting, and so forth- are actually secondary to the  broader, macro-decisions.

Business is also concerned with the potential decisions of competitors, as well as customers and markets.  Business tries to anticipate the decisions of other forces and position accordingly. This involves some risk taking, but that riskiness is mitigated by a strong understanding of the competitor and the market. Competitive games like Star Craft II also center on anticipation and strategic positioning, and the risk involved is mitigated by experience and game knowledge.

I came to this realization when while reading a series of business emails as executives debated making an  upgrade to their facilities and equipment, and it sounded strikingly similar to the internal dialogue I hear when deciding to upgrade or expand in an RTS. There were all of the considerations about the risk and cost of an immediate investment, but the undeniable fact that the action would be indispensible in the long-term. It isn’t surprising that this similarity exists: The basic concepts of opportunity cost, risk, return on investment, and long-term planning are part of everyday life. But the similarities between executives discussing a facility upgrade and a player deciding to build another base were just too uncanny to ignore. It made me wonder to what extent strategy games can prepare a person for the business world. My assessment is that if the player engages with strategy games with a methodical, process-driven paradigm, the gap is closed substantially. The fundamental essence of business is having an organized structure and process for managing resources towards a goal. Professional gamers strive to achieve exactly the same thing.

Oh, and also:  jargon – I can’t discount the role of jargon. Both business and gaming have a lot of jargon that sounds stupid, nonsensical, and pretentious to anyone outside of the practice. Often, jargon captures meaningful, actionable concepts, but it is nevertheless a roadblock to being taken seriously by those who don’t already understand and appreciate the language.

 

*Most of this also applies to turn-based strategy, but Heroes of Might and Magic 5 is a lot less thrilling to watch than Starcraft II.

Infringed Ink and Printing Copies of Cases: How Lexmark Collected Intellectual Property Lawsuits like Joker in Persona 5.

It’s fitting that printer ink turned out to be the subject for the series of lawsuits that took on all three of the major areas of intellectual property. Printers are the bridge between the physical and digital worlds, in a way. They are the symbol, and the means, of the transition between digital and paper documents.

Lexmark’s intellectual property litigation legacy is about the different ways that a variety of laws have different connections and offer different perspectives.  Persona 5 is about seeing the world through a variety of perspectives, and understanding different connections and perspectives that people have. Persona 5 is about complex stories that interconnect and overlap, with multiple layers and facets. That complexity and inter-connection has a similar feel to the complex and layered Lexmark litigation saga.

I. The Many Masks of Intellectual Property

In Persona 5, different “personas” (represented by masks) allow characters to perform different types of attacks. Different attack types will be particularly strong or weak against different enemies. This means that a big part of the game’s tactics is about determining which persona to use in different situations.

Copyright

Probably the one most people mean when they think of intellectual property, especially related to art or entertainment. Traditionally, this area of IP law was focused on books, music, film, and other art. However, due to the Digital Millennium Copyright Act (DMCA), the law also touches slightly on questions of tampering with proprietary devices to modify them (or to modify their functionality).

Trademark

I see this used interchangeably with “copyright” a lot, but think of it like this: Copyright protects the painting, trademark is the law about the artist’s signature in the corner of the painting. It’s the law that comes most into play when people are talking about counterfeit goods or brand recognition.

Patent

This is what most people mean when they think of intellectual property in most business and financial dealings, and especially in the context of science or engineering. Patents are about owning the right to make and sell a certain kind of thing, from cell phones to medicine.

Trade Secret

Like the healing abilities in Persona 5, trade secrets aren’t used often or even mentioned often, but they can fit some situations just perfectly. The other three kinds of IP law require you to make something public- filing a patent with the Patent Office, or registering a copyright (though you actually only need create a work to have a copyright in it, as of the 1976 re-write of the law), or using a trademark in commerce.  Trade secrets go the opposite way: if you take certain steps to NOT let the public know about something that makes your business work, you can claim a right to protect it.

II. Lexmark Litigation (Backstory)

Lexmark makes printers, but has a lucrative racket with recycling their ink cartridges. Well, had, maybe. Because Americans don’t like feeling taken advantage of, and because American Millennials don’t like a lack of choices, other companies sought to offer competing solutions to Lexmark’s ink cartridge restrictions.

In Persona 5, players collect new personas as they progress through the game. Lexmark litigation managed to collect different areas of intellectual property law as they fought over the issue of other companies coming up with ways to interfere with their ink cartridge schemes. What I find really amazing about this 13 year sprawl of litigation is that none of the involvement of IP law is predicable or very expected. Each application of law is noticeably distant from the original ideas and central, foundational, purposes of these laws.

How did Copyright law get involved?

Mostly through the parts of the DMCA that restrict tampering with controls placed on a device to inhibit 3rd party interactions (e.g., Section 1201). But in 2004, the Sixth Circuit (that most difficult of all circuits to pronounce) issued a ruling that called into question whether “lock-out codes” were actually subject to copyright protection, as they are not a form of creative expression. We might have gotten a more authoritative ruling on this topic, but Lexmark missed the deadline to request an en banc hearing at the Circuit level.

How did Trademark law get involved?

Through an argument about whether someone could sue Lexmark under the Lanham Act (the actual federal statute that contains most of trademark law). To actually take someone to court, you have to meet a few basic standards: you have to have an actual claim recognized by a law, for example. One standard for having a trial is that the person suing has to have “standing”: they have to have the legal right to bring a claim. Many laws will include a more specific definition of what “standing” will mean for that law.

In 2012, Static Control Inc. tried to sue Lexmark under some federal business-type laws (the Sherman Act and the Clayton Act), but those laws didn’t actually grant standing to Static Control, which meant they weren’t allowed to actually bring Lexmark to court. Then they tried to sue under the Lanham Act, because the rules for standing are different under that law. The Sixth Circuit granted Static Controls the right to a trial under the Lanham Act. Lexmark took the issue to the Supreme Court, who agreed with the Sixth Circuit’s choice to have a trial.

How did Patent law get involved?

The obvious way for patent law to be in a case brought by a printer company is for the case to be about two printer manufacturers arguing over whether one copied the others’ technology. That is not at all how patent law got used by Lexmark. Instead, the patent law question was about patent exhaustion.

This tiny area of patent law is like the “first sale” doctrine in copyrights. The idea for both is the same: once the end-customer buys the product, the manufacturer’s patent is “exhausted.” Under this law, a customer can do whatever they want with the thing they bought (except make new ones and sell those- that part of the patent still applies). This year, Lexmark brought a case to the Supreme Court on this point of law, hoping to stop a different company that was interfering with the ink cartridges. The third time was not the proverbial charm for Lexmark; the Supreme Court held that consumers do have some rights with regard to the re-use of their own purchased property.

III. Conclusion

My favourite thing about the Lexmark litigation is that it isn’t just about the substance of intellectual property law; it’s about how intellectual property law is administered. The trademark issue wasn’t really a trademark issue– it was an issue about who can sue under trademark law. The copyright issue wasn’t really about the copyrights of art or books or movies — it was about whether someone can unlock your digital locks. The patent issue was barely about patents– it was really about whether a patent still applies after a customer buys the product.

I’m excited by this because it’s a sign that intellectual property law is becoming more and more relevant to American life. More details of the administration and applicability and extent of laws have to be established as laws are interacted with more often. Decades ago, intellectual property was a small area of law that only affected a few sectors of a few industries in any meaningful way. Now it affects how we use our cell phones, ingest our entertainment, and even harvest our crops. As this area of law grows in response to innovation and technology, it has the potential to encourage further innovation and advancements, as well as to steer the growth of those new ideas. We are living at a time where we are moving toward either technological salvation or technological armageddon.