Holiday Special: A Lengthy Response to Prof. Samir Chopra’s Essay on Intellectual Property

Last month, an essay from Professor Samir Chopra came to my attention. This essay posits that “the term ‘intellectual property’ is nonsensical and pernicious.” The essay is partly at the intersection of philosophy of language and intellectual property law, so I took an interest. I felt that this essay needed a careful and thorough response.  To carefully and thoroughly respond to the essay, I have included it in its entirety here, with my own analysis and commentary presented in underlined text to differentiate it from the words of Professor Samir Chopra. I found the original essay here: https://aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious?u

 

 

The grand term ‘intellectual property’ covers a lot of ground: the software that runs our lives, the movies we watch, the songs we listen to. But also the credit-scoring algorithms that determine the contours of our futures, the chemical structure and manufacturing processes for life-saving pharmaceutical drugs, even the golden arches of McDonald’s and terms such as ‘Google’. All are supposedly ‘intellectual property’. We are urged, whether by stern warnings on the packaging of our Blu-ray discs or by sonorous pronouncements from media company CEOs, to cease and desist from making unwanted, illegal or improper uses of such ‘property’, not to be ‘pirates’, to show the proper respect for the rights of those who own these things. But what kind of property is this? And why do we refer to such a menagerie with one inclusive term?

“Property” covers a lot of ground: from my pen to my computer to my clothing to a claim on land. In law and in other areas, English speakers refer to many different menageries with a single inclusive term. Here the author sets out a foundational point for his pathos and, to some extent, his logos: that the term “intellectual property” covers too much disparate content to be legitimized in language. Accordingly, I will set out my foundational skepticism of this assertion: Our language abounds with examples of categories of different discrete things. My argument against this assertion will largely be a disagreement over: 1) the point at which a category becomes too overly broad to be a useful descriptor in a language, and 2) whether “intellectual property” exceeds that point of being overly broad.

 

The phrase ‘intellectual property’ was first used in a legal decision in 1845 and acquired formal heft in 1967 with the establishment of the World Intellectual Property Organization (WIPO), a specialised agency of the United Nations that represents and protects the commercial interests of holders of copyrights, patents, trademarks and trade secrets. The ubiquitous use of ‘intellectual property’ began in the digital era of production, reproduction and distribution of cultural and technical artifacts. As a new political economy appeared, so did a new commercial and legal rhetoric. ‘Intellectual property’, a central term in that new discourse, is a culturally damaging and easily weaponised notion. Its use should be resisted.

I am deeply skeptical of the claim that “intellectual property” is “culturally damaging” or “easily weaponised.” I think this history lesson fails to understand ask or answer a crucial question: Why did the term “intellectual property” become ubiquitous in the digital era of production, reproduction, and distribution of cultural and technical artifacts? Foundational concepts of authorship, ownership, publisher, distributor, inventor, etc. were not new in this era—so one must ask what brought about this change. I posit that the answer has much to do with the drastic increase in the population for whom intellectual property laws became relevant in this new era. Intellectual property became a ubiquitous term because the laws became relevant to more people and to more circumstances.

 

There are four areas of US federal law linked under the rubric of ‘intellectual property’ that we ought to keep separate in our minds. In an essay published in The Politics of Law (2010), Keith Aoki defines each as follows. Copyright protects ‘original works such as books, music, sculpture, movies and aspects of computer programs’ that are ‘embodied or fixed in a tangible medium’. This protection does not require a work to be entirely novel and extends only to its ‘original aspects’, to ‘a particular expression … not the underlying ideas’, and not to ‘independently created or similar works’. Under the umbrella of copyright law are original, concrete expressions, not ideas – the same story and script idea can generate many distinct movies, for instance. Then there are patents, which cover ‘new and useful inventions, manufactures, compositions of matter and processes reduced to practice by inventors’ with ‘rigorous requirements of subject matter, novelty, utility and non-obviousness’. Patents protect realised inventions and ideas in gestation – eg, here is a new method for collecting rainwater, and this is a machine that does just that. Trademarks (and the related ‘trade dresses’) meanwhile protect consumers from ‘mistake, confusion and deception’ about the sources of commercial goods: the ‘G’ in Gucci, Apple’s apple, a distinctive packaging. Finally, there are trade secrets, or secret information that confers economic benefits on its holder and is subject to the holder’s reasonable efforts to maintain its secrecy.

Fair enough—this is functional overview of the four main areas of intellectual property for the purposes of this essay.

 

Each regime has a public-policy justification: copyright law incentivises the production of creative works, which populate the public domain of culture. Patent law lets inventors and users benefit from the original ideas disclosed in a patent filing, and aims to make research and development economically feasible by producing investment in new technologies and products. Trademark law protects customers by informing them that their preferred vendor – and not some counterfeiter making inferior goods – is the source of the goods they’re buying. Copyright- and patent-holders extract monopoly rent from protected subject matter, or its concrete expression, for a limited period. Such limited exclusivity is meant to encourage the further production of original expressions and inventions by providing raw materials for other creators and inventors to build on.

Here I detect that the author is either playing a rhetorical trick or has missed an opportunity to reconcile the disparate members of this category. Although the author presents each category as having a different, unrelated public-policy justification, this paragraph could be re-written (with only an increase in factual accuracy) to present these areas as sharing a fundamental public-policy justification: economic incentive (or assurance) for undertaking a creative endeavor. The differences are matters of the kind of creative effort that one undertakes (artistic, scientific, entrepreneurial, or some combination of these).

The areas of intellectual property often connect with one another: a patent leads to the creation of a business, which then needs trademarks, whose advertising is subject to copyright, and the company may protect future innovations by trade secret. Artists create brands. Companies sign deals for their trademarks to be presented in copyrighted media. To suggest that this areas of intellectual property are distant bodies floating in separate galaxies is, at best, a misrepresentation of the media landscape of the digital era.

Most importantly, these areas of intellectual property bear tremendous resemblance to one another, even when they are not identical. Although the statutes for their official registration differ, they share common concepts as their foundation: originality, legitimate ownership (not stolen), functionality (for the thing that it is), public interest/safety, and other broad factors that match our cultural sense of justice and fairness regarding one’s labors. Their differences are important legal distinctions of statute. Their similarities are the same philosophical relations between abstract work and justice in the context of society.

 

 

In the United States, media and technology have been shaped by these laws, and indeed many artists and creators owe their livelihoods to such protections. But recently, in response to the new ways in which the digital era facilitates the creation and distribution of scientific and artistic products, the foundations of these protections have been questioned. Those calling for reform, such as the law professors Lawrence Lessig and James Boyle, free software advocates such as Richard Stallman, and law and economics scholars such as William Landes and Judge Richard Posner, ask: is ‘intellectual property’ the same kind of property as ‘tangible property’, and are legal protections for the latter appropriate for the former? And to that query, we can add: is ‘intellectual property’ an appropriate general term for the widely disparate areas of law it encompasses?

It’s generous to assert that media and technology have been shaped by IP law. Napster destroyed the record industry and reshaped music distribution while flagrantly flying in the face of laws that ultimately defeated the errant operation. Even in the same paragraph that references Lessig, the author gives no recognition to the other categories of laws presented by Lessig in his seminal work on the subject of copyright in the digital era: Code. The author further ignores Lessig’s famous argument against Judge Easterbrook’s position that combining areas of law is folly; Lessig argued that there may be some merit in considering areas of law that occur at the intersections of related, connected areas of other laws. (See: What The Law of the Horse: What Cyberlaw Might Teach.)

 

The answer to all these questions is no. And answering the latter question will help to answer the former.

To some extent, the law has already found this to be the case: many of the laws governing real or “tangible” property do not apply to intellectual property, and vice-versa. The law recognizes differences between different types of property and adjudicates accordingly. Unless the author propounds that intellectual property deserves no kind of legal protection, I’m not sure his argument can get off the ground. He will later establish that the law indeed distinguishes between tangible property and intellectual property, but I argue that he will not demonstrate any nullification of intellectual property or its need for legal recognition.

 

Stallman is a computer hacker extraordinaire and the fieriest exponent of the free-software movement, which holds that computer users and programmers should be free to copy, share and distribute software source code. He has argued that the term ‘intellectual property’ be discarded in favour of the precise and directed use of ‘copyright’, ‘patents’, ‘trademarks’ or ‘trade secrets’ instead – and he’s right. This is not merely semantic quibbling. The language in which a political and cultural debate is conducted very often determines its outcome.

Stallman also thinks that the use of the term “creator” of various works is too lofty of a term. I am all for semantic quibbling—that’s a huge part of why I write any of my blog posts, and none more so than this one—but there needs to be compelling cause to favor one side in a semantic battle. I will contend throughout this essay that the author presents no convincing argument to establish that proposed linguistic change will produce the desired results.

 

Stallman notes that copyright, patent, trademark and trade secret law were motivated by widely differing considerations. Their intended purposes, the objects covered and the permissible constraints all vary. In fact, knowledge of one body of law rarely carries over to another. (A common confusion is to imagine that an object protected by one area of law is actually protected by another: ‘McDonald’s’ is protected by trademark law, not copyright law, as many consumers seem to think.)

I have already addressed the common ground for the described categories of IP. I have also broadly outlined my argument that merely having different categories within a category does not make the use of the term for the larger category illegitimate. Furthermore, the example given holds no weight because even accepting the proposed linguistic change does nothing to promote the desired outcome; Consumers will not become educated in the difference between subcategories because the larger category is dismissed from the lexicon. Consumers may regularly confuse McDonald’s with Burger King, yet we do not blame this on the use of the term “fast food.” Consumers also confuse scientific principles and geographic locations, yet we do not ascribe a lack of expertise in these areas of academic or practical knowledge to the use of some overly broad term of category. The author implies a jump (or else this is truly a non-sequitur) between the use of the term “intellectual property” and consumer confusion over details of copyright and trademark law. However, the connection is never causally established, therefore there is no reason to believe that the tragic situation will be improved by refusing to use the term “intellectual property.” Additionally, the author does not explicate the harms caused by such consumer confusion; perhaps the author feels that such confusion will hinder effective pro se litigation against a corporation. (If this confusion causes problems for a pro se litigant, it is unlikely that the litigant’s challenges end there.) Finally, consumer confusion in other areas is not blamed on the use of broad categories, which gives further reason to doubt the connection between broad categories and confusion in the case of intellectual property.

 

Such diversity renders most ‘general statements … using “intellectual property”… false,’ Stallman writes. Consider the common claim that intellectual property promotes innovation: this is actually true only of patent law. Novels are copyrighted even if they are formulaic, and copyright only incentivises the production of new works as public goods while allowing creators to make a living. These limited rights do not address innovations, which is also true of trademark and trade secret law. Crucially, ‘intellectual property’ is only partially concerned with rewarding creativity (that motivation is found in copyright law alone). Much more than creativity is ‘needed to make a patentable invention’, Stallman explains, while trademark and trade secret law are orthogonal to creativity or its encouragement.

Stallman is generally wrong on this point. Indeed, he may have worded this point to be precisely wrong: General statements about a very general category are more likely to be taken as correct because they embrace a broad and loose understanding of the relevant concepts. It is the very general statements about very specific points of a law that are more likely to be false. The claim posited by the author regarding intellectual property and innovation requires a specific understanding of innovation that does not match a broad understanding of creating a new thing. In saying that only patents incentivize innovation, the author rejects the possibility of artistic works as innovative, as well as the goods and services that might be intertwined with a trademark or trade secret.

(While we’re playing word games: it is fun that the author gave “novels” as an example of copyright, when novelty is a requirement for patents but not, by that word, a requirement for copyright… though copyright does require originality—the difference is a difficult hair to split, but not an impossible one.)

 

 

A general term is useful only if it subsumes related concepts in such a way that semantic value is added. If our comprehension is not increased by our chosen generalised term, then we shouldn’t use it. A common claim such as ‘they stole my intellectual property’ is singularly uninformative, since the general term ‘intellectual property’ obscures more than it illuminates. If copyright infringement is alleged, we try to identify the copyrightable concrete expression, the nature of the infringement and so on. If patent infringement is alleged, we check another set of conditions (does the ‘new’ invention replicate the design of the older one?), and so on for trademarks (does the offending symbol substantially and misleadingly resemble the protected trademark?) and trade secrets (did the enterprise attempt to keep supposedly protected information secret?) The use of the general term ‘intellectual property’ tells us precisely nothing.

I consider the last sentence either woefully poorly considered or purely bad faith. To claim that the “use of the term ‘intellectual property’ tells us precisely nothing,” is to claim a manifest falsehood. The author already defined “intellectual property” in his third paragraph as consisting of four categories of law. This paragraph further abides by those parameters. This essay and this paragraph rests on the presumption that “intellectual property” outlines a set of laws and concepts. Therefore, the term delineates those things encompassed within that category from those things outside of that category. Therefore, the term “intellectual property” tells us something: it tells us that one of four categories of law is implicated. Regardless of intent, it is difficult to read this as anything other than a sophist’s rhetorical trick to either be polemic or deceitful. Sloppy use of language in an essay attempting to govern language for better clarity and transparency is an abysmal and shameful failure.

I think I can get on board with the initial claim here: members of a category should be appropriate members of that category. A term that captures conflicting members of a group is not, we may presume, a helpful term. However, this interesting claim is not properly linked to what follows. The claim “they stole my intellectual property” is more informative than “they stole my property.” If the author finds the claim “they stole my property” uninformative, it is only because there are more questions that one may ask: to wit, “what property, specifically, did they steal from you?” (And probably also “who stole it?,” “Did they hurt you?,” and “wait- who?”) However, the fact that more questions can be asked to narrow down the details within a category does not make the category useless, or even destructive. If I ask a friend what they might like to eat, and they tell me “some fruit,” I don’t object to this response because there are more questions to ask—and I certainly don’t assert that “fruit” as a category is destructive or unhelpful because it  contains many candidates within in. That I might narrow this category down to “an apple,” and then to “that apple,” is no reason to object to the category, and such an objection would obliterate the entire role and function of all categories.

The author’s objection here is deeply troubled: the use of the term “intellectual property” tells us a great deal. It tells us that the person was not robbed of money, bodily organs, real estate, or their television. Not only is it as good as the claim “they stole my property,” I further argue that whatever concerns about the possibility for further granularity are not resolved by the use of a subcategory within the broader category. If our victim instead tells us “they infringed my copyright,” there are still questions to ask: is there a fair use claim? Was there access by the alleged infringer? Was it a joint work or work for hire? Is the copyright valid? Is there a registration? Merely narrowing the claim to a more specific subcategory does not eliminate the need for more information to adjudicate or evaluate the claim.

On reflection, there might be another way to understand the author’s objection. Suppose a physician is approached by a person who claims “they stabbed my body!” There are a lot of follow-up questions the physician will ask, and probably first and foremost is: “where did they stab you?” If the physician does not as this, it is because it is entirely obvious from even a cursory glance at the victim. Similarly, if the claim “they stole my intellectual property” is not sufficiently informative, it is because the first cursory glance at the case will reveal the nature of the intellectual property in question.

Even granting all of the claims made in this paragraph, the ultimate harm demonstrated by the use of the term “intellectual property” is that an interlocutor might have to request more information, although the author already notes that even after determining the category of intellectual property, more questions must be asked. I find this far from compelling, and concluding this point with a claim that contradicts the preceding argument does much to convince me that there is no serious merit to this point.

 

 

Furthermore, the extreme generality encouraged by ‘intellectual property’ obscures the specific areas of contention created by the varying legal regimes. Those debating copyright law wonder whether the copying of academic papers should be allowed; patent law is irrelevant here. Those debating patent law wonder whether pharmaceutical companies should have to issue compulsory licences for life-saving drugs to poor countries; copyright law is irrelevant here. ‘Fair use’ is contested in copyright litigation; there is no such notion in patent law. ‘Non-obviousness’ is contested in patent law; there is no such notion in copyright law. Clubbing these diversities under the term ‘intellectual property’ has induced a terrible intellectual error: facile and misleading overgeneralisation.

Once again, the author runs into the problem of entirely rejecting all notions of categories. There are many different areas of “law”; the problems of tort law do not always overlap with challenges in tax law or estate law, which may be different from a point of contention within civil procedure or the rules of evidence for a criminal proceeding. The mere fact that different things reside in a category does not require them to have perfect identity with one another. Though I have embraced the vaguely described axiom that a category must not be too broad or else it becomes useless, the author again fails to persuade me that “intellectual property” is such an overly broad category. There are many acceptable categories in which points of difference and distinction can be found between group members. There are cases within each of the four subcategories of intellectual property which will hinge on points of law that do not overlap (e.g., some copyright litigation will turn on a fair use claim, while others will turn on a claim over the amount in controversy or the time at which a work was registered—in each case, the particulars of the other areas of copyright law will be irrelevant).

I further argue a controversial and esoteric point, not to win on its merits but to further underscore the fundamental philosophical principles underlying intellectual property. The author claims that there is no such notion as “non-obvoiusness” in copyright law. By a strict reading of the statutes, this is correct. An AI that only searches for word matches would agree. However, copyright law has an established rule that some general elements of artistic creation are so well-known, so accepted, and so obvious that it would be unfair to allow them to fall into copyright (see: Scènes à faire). Would 99% of judges or attorneys call this “non-obviousness, but for copyright”? Um… no. No. But-  is this philosophical concept the same kind of effort to reach out to general concepts of justice and fairness regarding one’s work, balanced against a public good? A philosopher could uphold that argument in good faith. This relates to my earlier point that the fundamental philosophical underpinnings of intellectual property, though manifest differently, are the same core concepts across the distinct areas of intellectual property.

Again, I must address the asserted or implied harms. Those debating the intricacies of these laws are aware of the relevant distinctions and limitations. Those who debate fine points of particle physics know which other principles of physics and chemistry might apply- yet we are content to keep such categories as physics, particle physics, chemistry, and science. The author may imply that the use of the term “intellectual property” damages the ability of non-experts to engage in such complex debates. However, this argument would require the assertion that the non-experts are already at a level of understanding that allows them to engage with the relevant statutes and case law, but that these would-be participants of the discourse are only stymied by their confusion over the relationship between copyright and patent law… despite their expert understanding of compulsory licenses or of fair use analysis. I find this an incredibly unlikely scenario, even as a hypothetical.

 

 

Indiscriminate use of ‘intellectual property’ has unsurprisingly bred absurdity. Anything associated with a ‘creator’ – be it artistic or scientific – is often grouped under ‘intellectual property’, which doesn’t make much sense. And the widespread embrace of ‘intellectual property’ has led to historical amnesia. According to Stallman, many Americans have held that ‘the framers of the US Constitution had a principled, procompetitive attitude to intellectual property’. But Article 1, Section 8, Clause 8 of the US Constitution authorises only copyright and patent law. It does not mention trademark law or trade secret law.

This paragraph is non-responsive to itself. The second half does not respond to the first half. I’ll allow a charitable reading of the first two sentences, and take the meaning to be that “anything” that is associated with a creator as constituting “intellectual property” is probably too far; the sandwich the creator ate for lunch would be associated with the creator, would count as “anything,” and I agree that it would be absurd to group that sandwich under “intellectual property.” If this reading seems pedantic, it is because the first two sentences do not provide more careful direction.  The last three sentences of this paragraph are not clearly related to one another. The implication that seems most likely to string these thoughts together is something like, “copyright and patent law are neither principled nor precompetitive, and only trademark and trade secret laws are principled and precompetitive.” That leap is so unsubstantiated and incredulous that it is difficult to engage with—and I had to create it using my best guesses as a reader. Perhaps this paragraph is only included for those who have already accepted the unspoken axioms that underpin the author’s reasoning. At any rate, I find it lacking much more than the suggestion of making an argument.

 

 

Why then does ‘intellectual property’ remain in use? Because it has polemical and rhetorical value. Its deployment, especially by a putative owner, is a powerful inducement to change one’s position in a policy argument. It is one thing to accuse someone of copyright infringement, and another to accuse of them of the theft of property. The former sounds like a legally resolvable technicality; the latter sounds like an unambiguously sinful act.

This seems to be the lynchpin of the entire argument (particularly if the arguments about category are as insufficient as I have found them to be). This paragraph captures the single link that the author presents between the term “intellectual property” and the harmful effects he will illustrate later in the essay. For the amount of work this paragraph has to do, it is tragically wan. The power of the term “intellectual property” is asserted here without substantiation or elaboration, in a manner that suggests that this should be uncontroversial and easily accepted. If the author believes that he is writing something novel and important, he should recognize that the fact that others have not already accepted his position means that he has some uphill climbing to do. This recognition should give rise to a careful and thorough articulation of the foundational points of his argument, in particular the claim that “intellectual property” is a powerful incantation in its own right that grants power to those who utter it. Ultimately, this entire essay will largely succeed or fail based on whether the reader accepts the claim made here: that the use of the term “intellectual property” holds some kind of incredible force that is not found in the terms describing the four named pillars of intellectual property. If the term does not have this kind of special power, the essay fails a cohesive argument, because the use of the term loses all connection to the negative claims about intellectual property made in the latter half of the essay.

This seems like an empirical claim: the population feels a certain way about these words. Even accepting the extreme version of this claim, it’s not clear what the author’s argument is, or whether disusing a term will help. For one thing, “legally resolvable technicality” could describe a very wide range of behaviors, depending on what is meant by “resolvable.” For another thing, this argument seems to rest on a sort of public relations, or brand image, campaign for legal terminology—and that could come into conflict with the realities of law. Based on this paragraph, it’s entirely unclear how the author would feel about describing simple theft of physical property as “the unforeseen relocation of goods and chattel.” I’m not entirely sure what benefit the re-branding brings. The author asserts that the current term “intellectual property” gives power to the “putative owner.” It may be that the author would like to undermine the cultural and social power of the owner of intellectual property to discuss the infringement of their rights. It may be that the author presumes to further a political or social good in this way. If that is the case, the framework of this argument has shifted from philosophy of language to ethics or social/political philosophy. That can be an entirely valid approach, but a good philosopher should not conflate these areas or be unclear about the area to which an argument belongs. Attempting to use philosophy of language to further an ethical or political end can leave the arguments about language sloppy and forced, as they are done only in the service of a desired goal.

This argument also presents a shift in the approach to the problem. Previously, the author addressed categories in a more objective manner, seeking to establish the linguistic and semantic value of a term. Now, the author appeals to populist beliefs and opinions about language (which go unsubstantiated). Perhaps the author is trying to address multiple approaches to language, so as to persuade a wider range of readers. The thoughts of other possibilities are less charitable.

Regarding populist use, this argument fails when confronted by the widespread flagrant disregard for “intellectual property” claims. Using Napster as an example again, there was a tremendous effort by the RIAA and other rights holders to even convince the public that intellectual property and copyrights deserved to be taken seriously, and respected as legally significant. The utterance of the term “intellectual property” has repeatedly failed to command infringers other rights violators to cease their activities.

Ultimately, the author does not support the claim that the term “intellectual property” is objectively and factually empowered in some way. Even making such a claim requires accepting certain axioms about the possible power of language, so this argument may be a non-starter for many readers who do not share such views concerning language.

 

Property is a legally constructed, historically contingent, social fact. It is founded on economic and social imperatives to distribute and manage material resources – and, thus, wealth and power. As the preface to a legal textbook puts it, legal systems of property ‘confer benefits and impose burdens’ on owners and nonowners respectively. Law defines property. It circumscribes the conditions under which legal subjects may acquire, and properly use and dispose of their property and that of others. It makes concrete the ‘natural right’ of holding property. Different sets of rules create systems with varying allocations of power for owners and others. Some grants of property rights lock in, preserve and reinforce existing relations of race, class or gender, stratifying society and creating new, entrenched, propertied classes. Law makes property part of our socially constructed reality, reconfigurable if social needs change.

There is a lot of interesting and controversial content here, but no part of this seems to conflict, on its face, with the use of “intellectual property” as a category.

 

 

Property is made not by the act of mixing labour with fallow land, as John Locke had it in 1689, but by the scaffolding provided by the surrounding legal system. Possession and labour – the much-revered foundations of Anglo-American property law – are insufficient to secure property. Land was acquired from Native nations by treaty; the labour of slaves was stolen; women worked, and still do, for free at home, rearing children, cleaning and cooking; adverse possession law shows a tension between possession and use; in family settings, personal arrangements override formal titles.

Rather than argue over whether this is a misreading of Locke, I will at least insert my own argument that the author’s rejection of Locke is to miss half of the point. The scaffolding of the legal system rests of the philosophical concept of the mixing of one’s labour (a philosophical notion more easily embraced when expanded beyond an agrarian frame of reference). The author’s point about the injustices concerning property and labor are well taken—and the moral outrage one feels regarding these wrongs only underscores the intuitive relationship between possession, labor, and legal title. There is a deep sense, somewhere near our core intuitions about justice and fairness, that possession, labor, and title should relate in a sensible, coherent way—and they should do so according to an arithmetic that we call fairness, or justice, or rightness.

 

 

Legal systems of property are pragmatic and outcome-oriented. They bring about desired social ends through a historically contingent, evolving blend of rights and duties for owners. There is no ‘natural’ or ‘objective’ basis for property; we deem something property because better social outcomes are realised by doing so. If another, better social outcome presents itself, whatever the debate among contending social and political alliances that gave rise to such a notion, we revise our concept of property. The long history of private property usurped for public benefit – in times of war, say, or when building railroads – and the restrictions on the kinds of objects that can be bought and sold, offers adequate testimony for this claim. (The US Constitution’s Takings Clause requires that when such property is taken, rights-holders are adequately compensated.)

 

It’s very controversial whether there is a natural basis for property: some may argue that humans have some kind of innate sense of fairness, and the application of this sense of fairness to the world inherently results in some basic notion of property and rudimentary rules about it. Others think that humans have no innate sense of fairness. Others assert that although humans have an innate sense of fairness, its application to the world to not inherently produce a notion of property. I don’t feel a need to contend for or against any view on the subject here, but it should be noted that philosophers, cognitive scientists, and psychologists and sociologists debate this point hotly enough that it should not be blindly accepted.

The author presents a view that notions of property have changed over the history of the US. A counter-viewpoint might be that claims about property have changed to suit the wealthy and powerful. The author claims that “we revise our concept of property.” Others might argue that “the powerful revise our concept of property on our behalf for their benefit.” Regardless, I am not sure that the author offers the kind of evidence that supports the claim made here. The claim seems to be that notions of property change over time, based on social circumstance. However, the examples given are that the government sometimes overrides the understood notion of property (in the case of building railroads) or the government changes the categorizations of goods (presumably for tariff purposes, though the author is not specific).  Neither of these are different approaches to the concept of property: the former is a recognized violation of property (which is why it is so contentious and why there is often compensation involved), and the second is just a kind of taxation (which for many is also a debated violation of property rights, but mere shifts in the details of a tax code do not constitute a new approach to the concept of property).

 

The US Patent Act of 1870  and Copyright Act of 1976 treat patents and copyrights as kinds of property, therefore suggesting that intellectual property rights should be akin to tangible property rights: that is, ‘perpetual and exclusive’. But legal protections offered to intellectual property assets are utilitarian grants – they are neither perpetual nor exclusive. (Tangible property is said to be perpetual because it is yours till you dispose of it.) Their terms are limited and amenable to nonexclusive use. Patent law offers exceptions for experimental use, and prior-use rights for business methods; copyright law for fair use; trademark law for nominative use; trade secrets for reverse engineering and independent discovery.

The author shows that neither patent nor copyright statutes contend that the protections for tangible property are or ought to be identical to those of intellectual property. The author observes that different categories of property are subject to different rights. This is not sufficient basis to conclude that only one category of property is property. Perhaps the author hopes to build to this conclusion using previous groundwork on the subject of property. However, this fails because the previous groundwork does not establish that the rights associated with tangible property are necessary and sufficient indications of the legal category of “property.” Moreover, the author draws attention to the non-exclusive flexibility offered by intellectual property (which forms the basis for the public domain that the author will laud in the last portion of this essay), but does not include the basis for such flexibility. By failing to state the different potentialities of tangible and intellectual property, the author leaves open the interpretation that these different types of property have different rights for some reason unrelated to their very natures. Consideration of the possibility of non-exclusive rights over tangible property reveals the difference in substance between these types of property; arguments for the differences in rights follow from the realization of the differences in substance (and the possible and impossible actions that can be done with such substances). The author allows the implication that the difference in rights comes from some other source, and therefore allows all manner of possible meaning to be found in this difference. Resting this difference in rights on the substance of the type of property narrows the understanding of the difference in rights to something functional and purposeful, not arbitrary.

 

Intellectual property rights are granted reluctantly: here is your limited property right with exceptions for nonexclusiveness, so that your knowledge can flow back into the public domain, there to be built upon by others. Intellectual property assets are interlinked and interdependent. Granting exclusivity rights increases transaction costs in those domains. Whatever kind of property ‘intellectual property’ is, then, it is not like ‘tangible property’, a fact recognised in these differential legal regimes.

Here the author asserts that because legal protections are different for intellectual property than they are for real property, the law is implicitly recognizing that these two kinds of property are different from one another. The law also recognizes a difference between premeditated murder and murder not premeditated. The law recognizes a difference between land and movable goods. The author has established that intellectual property is not identical to tangible property. The author has not established that tangible property is the only kind of property, nor has the author established that intellectual property is not a kind of property that merely is different from tangible property. The author has established a crucial first step in demonstrating that intellectual property is not property, but he has not proven the case.

 

 

When Locke spoke of creating property by mixing our labour with the land, he had fallow land in mind. This is precisely not the nature of artistic and scientific creation, where the creator ‘mixes’ his ideas with those of others to create a new work. Think of the relationship between rock ’n’ roll and the blues, between Shakespeare’s Romeo and Juliet, and Baz Luhrmann’s, between older scientific theories and the newer ones that build on them. Knowledge and creative works are nonrivalrous, nondepletable goods subject to network effects. To control them like ‘tangible property’ is to reduce their social utility. The domain of the various bodies of law that make up ‘intellectual property’ is a very different kind of property, perhaps so different that it shouldn’t be understood as such.

 

I think I would have preferred this as the opening paragraph (or near it). It is evocative and exciting, getting to the meaningful tension between two approaches to property. However, the substance of the paragraph falls flat: the examples given are all cases in which science and art existed within a framework of intellectual property and growth and progress persisted. Shakespeare did not prevent a remake of Ovid’s timeless tale. Musical genres cross- pollinated and evolved.

 

Legal protections appropriate for tangible objects – as the drafters of the US Constitution were well aware – are a disaster in the realm of culture, which relies on a richly populated, open-for-borrowing-and-reuse public domain. It is here, where our culture is born and grows and is reproduced, that the term ‘intellectual property’ holds sway and does considerable mischief.

Here the author argues that granting legal protections for intellectual property undermines culture – in particular, that such legal protections undermine a vibrant public domain of ideas, which is apparently the crucible of culture, in the estimation of the author. This argument may turn on a specific understanding of what culture is – though from the perspective of most cultural anthropologists, culture is an almost unavoidable aspect of continuous human society. These ill-defined key concepts aside, it is clear that culture has grown and thrived under conditions in which intellectual property is upheld by the rule of law. Either the author believes that no nation with intellectual property has culture, or that the current state of the culture of a nation with intellectual property protections is a “disaster” as a direct result of the use of that term. The author provides no evidence for either claim, and in fact does not go so far as to announce which claim he means to put forward.

The author will go on to describe the harms caused by the expansion of intellectual property rights to extents that he argues are harmful (an observation shared by many). However, the argument here is that the mere existence of intellectual property rights of any sort are a disaster for culture. It is an easy thing to accept that rights, taken too far, lead to disaster; it is difficult to accept that the existence of the concept of a kind of right is a disaster (unless the proposed right is abhorrent in its nature, which has not been suggested in this case).

 

 

‘Property’ is a legal term with overwhelming emotive, expressive and rhetorical impact. It is regarded as the foundation of a culture and as the foundation of an economic system. It pervades our moral sense, our normative order. It has ideological weight and propaganda value. To use the term ‘intellectual property’ is to partake of property’s expressive impact in an economic and political order constructed by property’s legal rights. It is to suggest that if property is at play, then it can be stolen, and therefore must be protected with the same zeal that the homeowner guards her home against invaders and thieves.

The efforts of one’s artistic or scientific efforts can be stolen, and I argue that providing for legal protections against such theft is a good thing for a society to do. I see no evidence or argument offered to the contrary, nor do I think the author would intend to posit that either governments and laws ought not protect their populace from theft, or that one’s inventions and artworks cannot be stolen.

The author again asserts that the term “property” and “intellectual property” has some impressive power that borders on the mystical, while offering no evidence and in the face of evidence to the contrary (disrespect for property rights are manifest in vandalism and theft across the nation, despite these protective wards of nomenclature). The author also seems to be building the argument that whatever power the term “property” has, those who merely do creative or innovative work have no right to access that power. The support for this claim seems to grow from earlier observations about the distinction between tangible property and intellectual property, and the different legal rights associated with each. However, in the full consummation of this argument, the author embraces the implication that whatever one might do to deserve a right in tangible property, no such thing can be done to earn a right in intellectual property. Perhaps the author wholly rejects a dessert-oriented approach towards rights, but he does not posit any particular framework by which one does come to deserve property rights of any sort. In the course of his attack on intellectual property, I am not sure he has preserved any meaningful, functional notion of tangible property.

 

 

Glib talk of ‘intellectual property rights’, then, concedes polemical ground to the monopoly rent-extractor by granting a certain perceived virtue to those who hold licences and rights. The rest of us are merely greedy and grasping grubbers for someone else’s property. But in so conceiving the domain of ‘intellectual property rights’, the notions of borrowing, reuse, reworking, remixing and constructive enhancement – all of which are needed for culture and science and art to grow – are lost in the semantic mire created by ‘property’. Things that are owned in the exclusionary way that the indiscriminate use of ‘intellectual property’ suggests cannot sustain art and science and culture.

The author continues his colorful demonstration of his view of the power of the term “property” to determine moral views. It seems that he believes that those who hold property are of high moral status, while those who access the property (even through established cultural and legal channels) of others are of low moral status. It would support his argument greatly if there were evidence that others shared this view.

Only two paragraphs prior, the author demonstrated that art and science can, has, and does flourish in a society that uses the term “intellectual property.” Here, the author claims that such growth and progress is “lost in the semantic mire.” If I have to choose between the claim the author supports with evidence, and the claim the other does not support with evidence, I suppose I ought to give weight to the former (all other things being equal).

It is worth noting that the author has said little for the benefits of intellectual property rights. Here, the author identifies the beneficiary of these rights as “the monopoly rent-extractor.” I’m unsure how a monopoly squares with the non-exclusive constraints described by the author only 5 and 6 paragraphs earlier, but it seems that the author may not think highly of the beneficiary of these rights. That intellectual property rights have been abused and have been used to abuse others is something I feel no need to debate—but that seems entirely outside the scope of the subject of this essay.  The author holds forth on behalf of the public domain and general social good (always a valid viewpoint to consider, to be sure), but little thought is spared for the person or persons who put so much work and effort into a creation or invention or other work subject to these protections. The author would do well to remember that all law is an effort to balance multiple competing interests. Although the author does recognize the value of intellectual property rights near the end of the essay, that recognition quickly becomes a claim about the harmful expansion of intellectual property rights, rather than the claim about the existence of such rights.

 

 

Disaster has followed. Copyrights, intended to be temporally limited, have grown nearly without limit. Congress drastically increased copyright terms in 1976, and again in 1998. The latter piece of legislation was the infamous Sonny Bono Copyright Term Extension Act, passed thanks in no small measure to the Disney Corporation lobbying to retain exclusive hold over its ‘property’, Mickey Mouse, and not to allow it to pass into the public domain. Elsewhere, users of ‘intellectual property’ suggest that protections be passed on to a so-called heir: so that the notion of inheritance has been carried over from real estate and now, ‘copyright trusts’ battle for the intellectual property rights of the long-dead original holder, placing onerous restrictions on those who would seek to make derivative works based on material that should long ago have passed into the public domain. But if that rights-holder is not present, then the original motivation for that legal protection – the encouragement of the further production of artistic works by the artist – is clearly not met.

It is a preposterous claim that copyright term lengths have extended as a result of the use of the term “intellectual property.” There is simply no justification or evidence for that claim, and it is, on its face, intuitively absurd to the point of non-sequitur. The paragraph defeats its own argument: the author admits that the trusts that seek to prolong copyright interests in a manner similar to real estate interests are known as “copyright trusts.” The disuse of “intellectual property” in favor of “copyright” would ostensibly do nothing to affect the nomenclature of “copyright trusts,” therefore doing absolutely nothing to impact the state of affairs lamented by the author. The author makes arguments here that may be of some merit in their own right (many other authors have argued similar points about the length of copyright and the problems associated therewith), but the relationship between the use of the term “intellectual property” and the extension of copyright seems to be the claim that “people take the term ‘intellectual property’ more seriously than they take the terms ‘copyright’ and ‘patent’ and ‘trademark’ individually.” This claim is then stretched into the claim that intellectual property rights are wrongly expanded entirely because of the use of the term itself.

 

Intellectual property rights and tangible property rights were also explicitly connected in an amicus brief filed by law and economics scholars in the 2006 case eBay Inc vs MercExchange LLC in which it was argued that the patent of the online auction company MercExchange deserved the same protection as real estate because patent-infringement was analogous to trespass and land-encroachment. Such rhetoric encourages corporate research-and-development labs to stake out patent claims everywhere, and then to defend them aggressively. Those following in their footsteps end up spending more time applying for licences than standing on the shoulders of giants. Private property’s associated notion of exclusivity allows the owners of data-analysis algorithms (such as those that determine credit scores) to ask for, and receive, trade-secret protection, which influences our financial fates – but there is no question of examining them; they are ‘property’ and we cannot have access to them.

Ah, the heady days of pre-2015 legal cases about the series of tubes that we call the interwebz. I note that the author cites the amicus brief for the case. Maybe that’s because the Court did not include this in its holding—and  maybe that’s because the case was about procedural law surrounding injunctions, and not patent law per se (it’s about the extent to which patent infringement does or does not dictate issuing an injunction). This evidence, then, amounts to “some people had an idea about relating patents and real estate, but the court ignored it.” That said, the author has put an emphasis on the relationship between the term “intellectual property” and cultural perspectives, so the amicus brief is not irrelevant just because it was not adopted by the Court. Never the less, the author fails to address the value of creating analogies between the abstract and the concrete to further understanding, or the value of creating analogies between established points of law to guide judgment in newer areas of law. An alternative analogy might be persuasive and helpful in furthering the author’s argument.

The point about trade secret protection and algorithms to determine credit scores is misguided. The author has already noted historical instances of government interference in property interests in favor of a common public good or interest. There is nothing incompatible about treating these algorithms as property and then, in the same breath, contending that a public interest demands the interference with that property. The author recognizes a strong legal and cultural tradition in the US regarding property rights as deeply important—but the author has also recognized that neither property nor (in his estimation, at least) the concept of property is immutable or sacrosanct. By conceding that cultural and legal notions of property can adjust over time, these examples loose whatever teeth they might have had: The author has already conceded that recognition of a property right does not create an absolute claim that cannot be countered or curtailed.

 

 

The resulting legal and economic landscape finds power concentrated in corporations with indefinitely extensible copyright terms, gigantic patent portfolios and politically influential trade secrets – each of which can trigger an endless series of litigious disputes in courts, and induce a chilling effect in the work of artists and innovators, and in the daily affairs of citizens. The indiscriminate use of ‘intellectual property’ has produced counterproductive legislation and policy bolstered by confused and misleading rhetoric directed at our cultural public domain, whose growth is discouraged by a new ‘enclosure movement’ that views culture as a domain of ownership and is keen to accommodate the rights of property owners. In this bargain, we, the users and future producers of culture, are compromised.

I recognize that this article isn’t big on citation, and I don’t consider that a mark against an essay in and of itself. However, it would be nice to have a more specific idea of what the author refers to when speaking of counterproductive legislation, and other ills. In particular, I am skeptical of the connection between the use of the term “intellectual property” and these negative effects. As I have noted elsewhere, the author makes many claims regarding the current state and application of copyright and patent law and policy, but the connection of these problems to the use of a specific term is thin at best.

 

 

What about the common objection that without ‘intellectual property’ the proverbial starving artist would be at the mercy of giant corporations, who have existing market share and first-mover advantage? It is important to disaggregate the necessity and desirability of the protections of the various legal regimes of copyright, patents, trademarks and trade secrets from that of the language of ‘intellectual property’. Current copyright, patent, trade-secret and trademark law do not need to be completely rejected. Their aims are rather more modest: the reconfiguration of legal rules and protections in an economy and culture in which the nature of creative goods and how they are made, used, shared, modified and distributed has changed. Such advocacy is not against, for instance, copyright protections. Indeed, in the domain of free and open-source software, it is copyright law – through the use of artfully configured software licences that do not restrain users in the way that traditional proprietary software licences do – that protects developers and users. And neither do copyright reformers argue that plagiarists be somehow rewarded; they do not advocate that anyone should be able to take a copyrighted work, put their name on it, and sell it.

I am glad to see the author give consideration to the beneficiary of intellectual property rights and protections. However, the connection between the use of the term and the effects on the artist and inventor remain entirely underdeveloped. It is good that the author clarifies his position that he does not seek the elimination of intellectual property protections entirely—only an adjustment of their extent—but the disconnection between the use of a term and the effects of the policies continues to glare at the careful reader.

 

 

 

But copyright law does need amendment, to restrict terms of protection beyond reasonable limits, and to reconfigure ‘fair use’ appropriately to a domain in which artifacts such as books, music and film can be stored, distributed, edited, shared or modified in previously unimaginable ways, when a large number of copies can be made free of cost once an initial expensive original is complete, and so on. Similar considerations apply, for instance, in the domain of software development where computer scientists and software developers have long argued that the grant of patents for software algorithms unproductively inhibits research and development. Indeed, the presence of alternative economic models such as those of the free and open-source software movement suggest that, in the new digital economy, property rights based on tangible goods are likely to have only limited success, and indeed might inhibit innovation and production.

As a conclusion restates and condenses the material presented in the essay, I have nothing to add here that I did not address previously.

 

This public domain is ours to draw upon for future use. The granting of temporary leases to various landlords to extract monopoly rent should be recognised for what it is: a limited privilege for our benefit. The use of ‘intellectual property’ is a rhetorical move by one partner in this conversation, the one owning the supposed ‘property right’. There is no need for us to play along, to confuse one kind of property with another or, for that matter, to even consider the latter kind of object any kind of property at all. Doing so will not dismantle the elaborate structures of rules we have built in order to incentivise artistic and scientific work. Rather, it will make it possible for that work to continue.

 

Overall, this essay suffers from two central problems: 1) the criticisms of the category of “intellectual property” are not presented in a sufficiently careful way to salvage other, analgous, useful examples of categories, and 2) the author fails to satisfactorily connect the use of the term “intellectual property” with the myriad policy and legal problems that he enumerates. These are problems have been noted by others, and it might even be a tempting solution to just change the linguistic approach. It’s not an idea I’ve seen presented before. However, the lack of clear connection leaves me entirely unconvinced that the same problems would not persist under a different linguistic regime.

 

The author’s thesis seems best stated as follows: “The use of the term ‘intellectual property’ carries cultural and legal connotations that influence policy makers to favor rights holders over the competing interests of the public interest in cases of public domain; as a result, rights holders unjustly benefit at the expense of the languishing public domain.” This essay would be stronger if it abandoned the effort to bend a linguistic analysis of categories to suit the end of a social/political benefit. The effort in philosophy of language doesn’t work and it isn’t necessary. The essay should instead focus on three pillars: 1) Demonstrate and establish the power and force of the term “intellectual property” in careful contrast to other terms (“copyright,” “patent,” “trademark” etc.) 2) Demonstrate that the harmful expansions of intellectual property rights would not have occurred but for the use of the term “intellectual property.” 3) Demonstrate that pervasive use of other terms would curtail the expansion of intellectual property rights and result in a harmonious balance between public interests and individual claims.

 

 When people start taking about “digital property” in contrast to “real property,” we will know we have entered the truly scary domain—because I already know which one will be considered more important and more valuable.

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In Which I Use Multiple Materials To Write About Separating Separability

Crafting and Separability

Crafting became the must-have feature in a video game after Minecraft’s astounding success. Since this game mechanic became the bandwagon that no studio could NOT jump on, games varied the complexity, the modularity, and the reversibility of the crafting. (They also varied the intuitiveness of the system, but that’s a different complaint.)

In some games, players can get either raw materials or modular pieces back by deconstructing items that they have crafted: Diablo 3 (random chances for raw materials when salvaging items), Fallout 4 (gives modular pieces rather than raw materials), Elder Scrolls Online, Fortnite (weapons, but not buildings), Destiny 2 (arguably, this deconstruction is functionally more like selling it), Borderlands: Pre-Sequel (the grinder will turn a trio of items into an item of equal or greater value, with random chances for quality).

In other games, players do not have the opportunity to recover resources after crafting an item (though frustrated players have created game mods to allow deconstruction): Minecraft, Darkmoon (the Sword of Talon cannot be unmade), Skyrim, Warframe, Don’t Starve, Stardew Valley, Dragon Age: Inquisition (in Single Player you can remove addons; you can deconstruct in multiplayer), Dead Rising, Terraria.

For video games, the decision to allow players to salvage or reuse item parts is about game balance. When crafting an item includes a random chance of an additional benefit, game designers are aware of the possibility for players to deconstruct and reconstruct until they get the additional benefit they want. When the crafted item does not bring new benefits, game designers still have to evaluate the way that players will obtain resources.

There is another concern about balance when courts examine the possibility to conceptually deconstruct an object into the raw materials of function and aesthetic. Courts must be careful to afford the correct category of intellectual property protection based on the nature of the subject matter seeking legal protection. Unfortunately, determining function vs aesthetic is controversial at best, and it can sometimes feel more like a game with an RNG element added to item deconstruction.

 

Star Athletica v. Varsity Brands

In 2017, the Supreme Court ruled on a dispute between two companies that make cheerleading outfits. The court did not rule about whether a copyright infringement actually happened in this case. Instead, the court sent the case back to a lower court to decide that—but the court sent the case back along with a new rule about copyright protections. The new rule is that if a part of something can be “perceived” as art that would qualify for copyright protection, then the whole thing can be protected by copyright:

“an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”

“Useful articles” are generally not protectable by copyright (they should instead usually be subject to patents, which work very differently from copyright protection).

Before this ruling, many lower courts had created (often similar) tests to evaluate the aesthetic elements of a larger object or article. One effect of this ruling is that it forges, out of the raw materials of many separability tests, one single separability test for all US courts.

 

Is Star Athletica compatible with 17 USC 9?

In the 1980s, computer hardware manufacturers were concerned about getting the right kind of protection for computer chips for the new micro processors that were becoming popular. More specifically, they were concerned about protecting a very specific piece of the chip production process: the photomask (aka mask work). The mask work is the 3-D blueprint and stencil for the manufacture of a silicon microchip.

The concern was that patents would either not apply or not give adequate protection (as far as I was able to find in research, this fear was never put to the test in courts, and I remain unpersuaded that the mask works would not qualify for either a design or a utility patent). However, the functional nature of the photomask device (as a key part of a manufacturing process) precluded it from copyright and trademark protection. The computer industry successfully lobbied congress, and a new section was added to chapter 17 of the United States Code. Despite the fact that the title of chapter 17 is simply “Copyrights,” section 9 is distinctly unlike the copyright protections described in other sections: it protects a specific, functional category of objects (mask works), offers a different length of protection, and prescribes different statutory damages for infringement.

Generally speaking, the law tries to avoid redundancy and overlap. Does Star Athletica decision create some kind of redundancy or overlap with 17 USC 9? Star Athletica allows for functional articles to be subject to copyright if there is an aesthetic element found in the functional article. The court does not carefully explain whether an aesthetic element must be, in itself, not functional (nor is the term “functional” defined). There is no overlap if Mask Works lack an aesthetic element—despite the fact that they look like art in themselves, there is probably no element of the Mask Work which is not functional, which may preclude the possibility of an aesthetic element. Inasmuch the Star Athletica decision should be read as not creating redundancy or overlap with existing statutes, this decision must be interpreted as a ruling that there are no aesthetic elements that are separable from the mask work that would be subject to copyright protection.

Separating Hard Cases of Inseparability: Ribbon Racks

Measuring Star Athletica against 17 USC 9 is important because of the difficult cases in Intellectual Property where functionality and aesthetics are not clearly distinct. Function and aesthetic are often broad cues for which type of protection a thing may be subject to receive (or prohibit from receiving). A seminal example is “ribbon rack” bicycle racks: the ubiquitous bicycle racks that take the form of an undulating metal ribbon were the subject of a copyright lawsuit (as well as trademark). The SDNY court ruled that:

“While the RIBBON Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices. . . . Thus there remains no artistic element of the RIBBON Rack that can be identified as separate and ‘capable of existing independently, of, the utilitarian aspects of the article.’”

The dissent in the case felt that this thinking entirely destroyed any hope of conceptual separability. This disagreement draws out the challenging questions: whether, when, and how aesthetic elements can be distinguished or delineated or extracted from a functional article.

 

Star Athletica In the Context of the Intellectual Property Landscape

Design Patents cover the non-functional ornamental elements of an invention. The Star Athletica case might expand copyright closer to design patent territory. Most cases will be able to still separate the two, mostly on the basis of subject-matter and/or whether the subject was issued a copyright registration or a design patent. Nevertheless, I predict that either (1) there will be a case to settle an argument between the USPTO and the Library of Congress as to who ought to have jurisdiction over a specific subject-matter, or (2) a case will have to decide on something that could conceivably be claimed by either, and a court will need to effectively adjust either Star Athletica or a patent statute in order to make a coherent ruling.

The Star Athletica decision demonstrates that intellectual property is both unified and divided by questions over functionality and aesthetic: IP is unified by these questions because no other area of law is so focused on this philosophical point; IP is divided by the answer to this question because different categories of IP will apply based on the functional or aesthetic nature of the object or article under question. At the same time that more academics and attorneys are pushing for less use of the term “intellectual property,” cases like Star Athletica and Converse v ITC push patents, trademarks, and copyright analysis closer together, focusing on two common questions: What is functional and what is aesthetic? How do we separate them when both are present?

 

Inseparable Bundle of Distinct Intellectual Properties

There is an ongoing push to separate the pieces of Intellectual Property Law (copyright, trademark, patent, and trade secret). Some attorneys and academics want people to stop using the term “intellectual property” entirely, citing confusion for both the public and the courts.

One of the core arguments is that “intellectual property” can be broken into more fine, discrete elements (copyright, patent, trademark, and trade secret). However, each of these categories can be broken into subcategories, areas, and elements. One author recently wrote that a discussion on fair use has nothing to do with patent law. However, a discussion on fair use of academic papers also has nothing to do with ephemeral recordings, royalties for mechanical licenses, or protection for mask works (which are explicitly not subject to copyright but are still included in chapter 17 of the USC). The mere fact that a broad category can be understood as made up of smaller categories is not sufficient reason to entirely reject the notion of the broader category… But this issue should be fully addressed separately, in a different blog post.

Conclusion

In a game with crafting, the designers have established a method for deconstruction or they have decided not to include such a method. A player can either have the expectation of deconstructing an item, or the player knows that item crafting will permanently destroy the materials used (except in Elder Scrolls Online, when some items just don’t show up for deconstruction and no one knows why except that it’s a Bethesda game). In cases of intellectual property, the courts may or may not find that an object or article can be conceptually separated into functional and aesthetic elements. However, when the court does find that such separability is possible, Star Athletica will guide the court’s evaluation of the separated elements.

 

 

 

 

 

 

 

Music Modernization Act, Artificial Intelligence, and Cryptocurrency

“Angel Pumping Gas” is not a song about copyright regulatory policy, artificial intelligence, or cryptocurrency. I’m going to use it to round up all three of those subjects in this blog post.

  1. Music Modernization Act: Not Enough Of a Good Thing

“Why won’t this moment last?”

A.

“Angel Pumping Gas” is a 1999 song by the band Lindsey Pool, the second track on the album Postal. The song was circulated around various music sharing sites and services—but it was erroneously attributed to the band The Postal Service. Even now, comments sections on YouTube express surprise concerning the song’s artist. Google’s first result for lyrics attributes the song to The Postal Service. This serves as a clear, simple example of how easily information spreads online, and how difficult it can be to correct information online. If early 2000’s music sharing used a single database held the information for every published song, such an error might have never happened. A new law requires the creation of such a database, but there’s a lot still up in the air.

The biggest open question from the Music Modernization Act is: Who is going to create and maintain the required database of songs and rights holders? The law mentions that a database will be made, presumably by the Mechanical Licensing Collective that the law also creates. This is only forces everyone to ask more questions: who will be on the board of the Mechanical Licensing Collective? What methods will this organization use to create this database?

B.

Measured by content, “Angel Pumping Gas” is little more than an unnecessarily detailed recounting of purchasing gasoline. In fact, the middle two-thirds of the song is an entirely banal description of an entirely ordinary and unremarkable transaction. Only the beginning and ending of the song (and chorus) frame the experience in terms of the romance and desire that the singer feels. It’s either beautiful post-modern appreciation of the beauty in the mundane encounters of our lives, or it’s just a little bit silly.

The Music Modernization Act is either a beautiful resolution of a pressing problem in the music industry, or it’s just a little bit too narrow to be worth caring about. The Music Modernization Act was passed unanimously by the House. Sound Exchange and the RIAA have praised it. It seems like everyone loves it, so I was surprised to learn how narrowly tailored the new law is. It is almost entirely focused on problems specific to digital streaming of music. Though there were issues that required resolution in this area, there remain enormous gaps between current copyright law and the daily use of media and technology. It is unsurprising that the problem that got addressed was one that concerned the rich and powerful (record labels, digital platforms), but they did take the opportunity to include studio professionals in the legislation—a group that has historically be neglected. Music Modernization Act is not as far behind the times as I expected: it’s not a response to Napster, it’s a response to Spotify… but I would still like a more satisfying response to Napster than the DMCA.

 

  1. Artificial Intelligence All Around Us– And We Don’t Know What It’s Doing

“You ask ‘What Can I do?’ I say ‘unleaded fuel.’ You open up my tank and start the pump.”

“Angel Pumping Gas” is a wistful ballad that describes a brief meeting with a filling station attendant, with whom the singer is immediately infatuated. Filling station attendants are rare in 48 of the 50 states (NJ and OR have laws against filling one’s own gas tank… as does the town of Huntington, NY).  The entire premise for the song is slightly alien to the tens of millions of Americans who have always pumped their own gasoline.

For most young Americans in the 90s, gas station attendants were a historical curiosity—something referenced in films in the 50s and 60s. However, for residents of NJ and OR, having someone else fuel your car was a commonplace occurrence. Today’s emerging technologies have the same impact: a device or service is either a commonplace part of your life, or it’s a foreign concept. Twitter, Facebook, Alexa, Smartphone GPS navigation, Netflix, Twitch, YouTube, AmazonPrime- all of these things are, for most Americans, either so commonplace as to be unremarkable, or are simply not part of your life. As technology becomes more integrated in our lives, the difference between so-called “haves” and “have-nots” becomes more pronounced. The very premise of the song creates a divide in the audience: there those who have encountered a filling station attendant, and those who have not.

Our relationship with technology is already creating visible divides in our population. We aren’t always sure who is a bot, though some of us are willing to pay a lot for their art. Even as AI becomes an essential tool for the largest companies that manage important aspects of our lives, the law has no idea how it will handle the legal aspects of a tool that is on a complicated trajectory. Artificial intelligence is steadily becoming more and more commonplace- but the majority of us can’t see how or where AI is being used, much less which systems use what kind of data. Like a teen in the 90’s listening to a song about a filling station attendant, most people who hear about bots and AI have to turn to movies and pop culture references to draw up a mental picture, rather than rely on our own experiences.

 

  1. Cryptocurrency’s Perpetual Hype

“You walk over my way, I didn’t know what to say… I think that I love you, or maybe it’s just the fumes.”

The song details the singer’s desire and longing, wallowing in the idea of feeling a romantic desire for someone he doesn’t know. The song juxtaposes the intensity of the singer’s amorous emotions with the brevity and shallowness of the interaction. Our popular culture mirrors this adolescent infatuation in our reactions to new technologies: sudden, intense waves of excited fervor for a world-changing device or platform that either never arrives or seems to evaporate into the past shortly after it appears. (I have written before about the hype surrounding the Internet of Things… )

Cryptocurrency prices are down, but it doesn’t feel like the hype has suffered at all. The estate of one of the Wu-Tang Clan is starting a cryptocurrency, to be named after the deceased: Dirty Coin. The strangest part of this is that I haven’t seen blockchain applied in the kinds of contexts I expected it to find more success: online games, a new kind of customer loyalty program, or other gimmicky, comparatively low-stakes settings. Perhaps the hype is fueled by risk-taking and gambling, and such settings aren’t thrilling enough. This is unfortunate, because turning down the hype would allow the technology to actually move forward in much more appropriate, smaller steps, rather than trying to change the world all at once.

Is the gas station attendant in the song the destined One True Love of the singer? It’s not impossible. Are there are a lot of fumes around gas stations? In my experience, yes- always, in fact. Will cryptocurrencies bring about a Utopian future? It’s not impossible. Do crowds tend to favor exciting hype over careful, substantive analysis? In my experience, yes- always, in fact.

Conclusion

“We share our precious moment in a glance…  and as I drive away, her memory’s here to stay—her deep blue eyes have left me in a trance.”

The singer bemoans that he needs to leave, as the road calls him away. His lack of control is an unstated axiom of the logic that he must follow. The singer is a passive pawn of forces around him: fate, the road, filling station attendant (her authority to invoke payment and her beauty), the transaction, his emotions. He begins the song by attributing the encounter to fate and concludes with the resigned acceptance that the separation is, perhaps, better for all involved. This is not a song about a person taking decisive actions; this is a song about a consumer making his way through a brief and common transaction in the life of a middle-American.

Society seems to display about as much mindfulness and self-possession in approaching technology. We owe it to ourselves to take more effort and more thought regarding our laws and our technology than an adolescent’s unapproached crush.

The Scare of Abandonware

It’s nice to have law in a society to bring a sense of predictability. Clear and organized laws allow us to understand the consequences of our actions. Knowing the law lets us make choices based on the expected outcomes. However, there are a few areas of law where outcomes are not so obvious. Abandonware is an interesting case of 21st century law. Copyright law simply doesn’t outline what to do when a company publishes a game and then closes its doors. It’s scary for cautious lawyers to discuss because of that uncertainty. As always, this blog post is NOT legal advice– in fact, it’s mostly about why giving legal advice about abandonware is difficult.

How Games Get Abandoned

Abandonware isn’t entirely limited to software, but the differences in technology and industry norms and structure make it a far larger problem for software than any other media. It’s no surprise that book, radio, television, film, or music industries ever needed a statute on abandoned works.

When game studios close, they are often bought by other, larger studios- or at least their IP assets are. However, sometimes the IP of a studio doesn’t get purchased – it just gets abandoned. Copyrights in the US last at least 70 years. Although courts have ruled that not every work has a recognized owner at the time of creation, courts have not definitively addressed the issue of abandoned works. (It is possible to officially declare a work abandoned and part of the public domain, but this is not automatic for IP that is simply left behind by a defunct company.)

Who Would Have The Right To Sue?

There are a few fundamentals that have to be in place for a case to even get seriously looked at by a judge. There must be an allegation of a violation of a law, for one thing. Additionally, the plaintiff must have “standing.” This means the plaintiff was harmed by the breaking of the law. A case must also be “ripe” (the allegation cannot be speculated or predicted to occur sometime later), and the case cannot be “moot” (resolving the case must make an actual difference to the injured party).

In the case of abandonware, could these fundamentals be met? Sometimes revenue is still given to developers whose companies have closed shop, but it’s unclear how often this is the case.  In most cases, it seems that no one can claim to be damaged by the unauthorized distribution of the software, because no one can claim they lost money as a result. Further, any case would be moot because ceasing the distribution would not make any difference to a non-existent competitor.

Despite the unlikely odds of an abandonware suit even getting to trial, distributing abandonware still feels a little risky for two reasons. First, unlike trademarks, copyrights are not contingent on use in commerce, and unlike abandoned property there is no law describing how to treat abandoned works. Second, it’s an unexplored area of law, which means that there isn’t precedent either to argue in court or to consider when advising a client.

Who Gets the Loot of the IP License When a Company Dies in the Dungeons?

Despite the murkiness, some abandonware cases seem clearer than others. Some games from the 80s and 90s seem well and truly abandoned. However, if a copyright is assigned to a corporation and that corporation then goes defunct or is bought, it’s sometimes unclear who owns the copyright.  Other games may carry a sort of tangential active ownership that could complicate a case. For an example of both of these complications, let’s consider a game from 1991 that featured a licensed IP to a game developer and a publisher (who are now both defunct): Eye of the Beholder.

Dungeons and Dragons was owned by TSR, Inc until that company went out of business and sold most of its D&D intellectual property assets to Wizards of the Coast (a company owned by the toy company Hasbro, Inc). Eye of the Beholder was a game made by Westwood Associates (bought by Electronic Arts and defunct since 2003), though the title screen clearly identifies it as an Advanced Dungeons and Dragons game. The game was published by Strategic Simulations, Inc (bought by Mindscape and defunct since at least 2011), who worked with TSR on dozens of licensed D&D games.

With Westwood and SSI now out of the picture, can Wizards of the Coast claim ownership in the use of their D&D mark in 30 year old games?  Wizards of the Coast would probably not prevail on a claim of direct ownership of these games. As far as I can tell, courts have not addressed a case in which a party bases a claim on IP that is inside another product. The closest cases involve the use of a person’s likeness in a game, but the plaintiffs don’t try to claim ownership over the entire product. It may be that the original license agreement puts the “D&D” IP out of the reach of claims by TSR, and therefore out of the reach of WotC.

Ideally, the licensing contract between TSR, Inc and Westwood Associates has a paragraph for just this kind of question (this is why it pays to draft contracts with the worst possibilities in mind- like your company going out of business). If a court faced the claim that WotC has a claim on the distribution and sales of games featuring D&D settings and characters, I suspect* it would rather dismiss the claim on the basis of laches rather than address the tangled mess of IP licensing claims.

Conclusion: We Can Know The Risks, If Not the Outcomes

Abandonware seems to be technically illegal, but it also seems to be nearly unenforceable. That’s an uncomfortable place to be. It’s a strange state, and there are hardly any appropriate analogies that would help explain it. The best analogy might be a comparison to an old game that, despite being technically functional, won’t run on a current operating system. Abandonware’s legal challenge might be best described by its technical challenge.

 

*There is always a small risk of a surprise in court: A court could create the principle that when a party does not exist to protect a licensed IP, the licensor may step in and act as owner of that IP for some limited purpose. Some would call that “legislating from the bench.” The judge would call it “meeting the demands of justice in the face of technological development.”

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.

 

 

 

“Fair Use!” Shouldn’t Be The Battle Cry of Pirates

***Disclaimers: Jim Sterling emphasizes that he does not advocate pirating Nintendo games; he  only argues that there is a moral justification for doing so. Furthermore, I don’t have all of the information on this matter, and I’ve tried to indicate when I’m inferring some facts. As always, this writing is NOT legal advice.***

Jim Sterling thinks it’s morally justified to pirate Nintendo’s games. I disagree.

As I understand it, Jim’s argument is that Nintendo abuses copyright law by failing to respect the legitimate activities of journalists like him. Jim feels that Nintendo’s failure to respect the legal rights of others permits others to ignore the legal rights of Nintendo.

The basic analysis of this claim comprises two questions: 1) Is Nintendo actually abusing copyright law? and 2) Does that abuse justify piracy? I think simple proportionality suggests that if a company fights with one person over a few pennies, responding by depriving the company of millions of dollars from millions of customers is probably not justified. So, I’ll just focus on the first question.

1)  Is Nintendo Abusing Copyright Law?

Probably not. As far as I can tell, Jim is angry that Nintendo issues ContentID strikes against Jim’s videos that incorporate some of Nintendo’s content (e.g., a few seconds of a trailer for a Nintendo game). Jim contends that his use of Nintendo’s content is protected under Fair Use.

A) ContentID: Still Not The Same As Appearing In Federal District Court

Nintendo is operating within YouTube’s copyright-themed pretend-cyber-law-court system. (I don’t know if they’ve issued DMCA takedowns, which would be an actual, real, legal action.) ContentID has a status similar to a retail store’s policies, in that it’s up to the private enterprise to design and operate the system pretty much however they like. Except in this case the law (DMCA) frames how a private company will design their system: If a party issues a warning about a copyright issue and the host service doesn’t remove it, and then the party goes to court with original poster over it, the party can collect from both the original poster AND the host. Thus, the host is really incentivized to make the choice for which the law will never penalize them, and just take down everything, every time anyone is unhappy. Maybe there are some complaints to levy against the DMCA for that (and against copyright law for incentivizing rights holders to protect their rights or risk losing them). But being slighted by a retail store’s return policy doesn’t justify torching the manager’s car.

B) Fair Use: Still Not A Magical Invocation

Jim’s claim to the Fair Use exception is not as clear as he hopes it is. Before the internet, fair use was a tiny, unheard of piece of an area of law that most citizens and attorneys didn’t think about very often. In the last 20 years, it has become the backbone of the amateur, self-starter internet entertainment and journalism industry. Despite getting burdened with all of that extra responsibility, the legal doctrine has not been expounded or clarified by courts or legislatures. The biggest case for fair use was Campbell v. Acuff-Rose Music, Inc. in 1994, which focused on the use of music for parody and explicitly stated that the law does not recognize a market for derivative works (which, I would argue, is very close to what most UGC on the internet is). (It would be great if someone could take a corporation like Nintendo to court to get a ruling on Fair Use in the context of YouTube journalism and criticism—though I’m sure that corporations will settle at outrageous expense in order to avoid losing the grey area that allows them to make these kinds of aggressive claims.)

Jim’s use of Nintendo’s content seems intuitively fair to most of us, but the analysis required by the law isn’t the intuition of the average citizen. The statute requires consideration of four separate factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The biggest problem for Jim in this analysis is that his videos are monetized, which means that his use of Nintendo’s content is not a non-profit endeavour. He also might use as much as 1/3 of a 3 minute trailer, and seeing the trailer in Jim’s video might make some people less likely to go watch the full trailer (though it could also have the opposite effect). The point is that there are some arguments to be made against the idea that Jim’s use of Nintendo’s content is beyond reproach. I think the balance of analysis goes in Jim’s favor for fair use, but I don’t think every single court in the US would rule that way- though more court rulings are moving in this direction. (I did not apply Lenz to this analysis because: 1) It applies to DMCA takedowns, not ContentID strikes, 2) There is a good-faith argument in consideration of fair use, as outlined above, and 3) It’s a Circuit ruling, rather than a Supreme Court ruling.)

Ultimately, Jim’s entire argument really hangs on this one point- that fair use gives him a right to do this, just like the first amendment would give him a right to run a newspaper or stand on a soap box in Central Park. As a matter of academic legal analysis, 17 USC 107 is not as robustly defined or developed as the Free Speech clause of the First Amendment. Fair use is not just a legal way of saying “I used citations.”

I don’t want to pick on Jim too much, though. This case is just an example of the kind of faith that consumers and “Prosumers” and “content developers” and “social media dracoliches” put in the legal concept of fair use. It’s an incredibly misunderstood point of law, and it’s a point of law that is bearing more of a social and economic burden than it was ever originally designed to bear. Every year, ordinary intuitions about the meaning of “fair use” are driven further from the statutory language by cultural norms and everyday practices. In the end, no one seems to have a good grasp on this concept: Consumers and content creators think it is carte-blanche permission to use someone else’s work, and entertainment companies seem to think it’s a lie invented by hippies who just want free stuff.

2) “Legally Justified” Doesn’t Mean You’re Either Good or Smart

I think there’s a reasonable case to be made that Nintendo is acting within their legal rights. I think there’s a much stronger case to be made that Nintendo is acting against their economic interests. Copyright law is woefully outdated, and companies that cling to it too tightly will fall behind the times. One of the most useful aspects of copyright law is the right of the owner to not pursue actions against infringers. A smart company recognizes when infringements under the law can work in the interests of the company. Devolver Digital is a smart company.  Entertainment companies that are the most successful in steadfastly safeguarding their intellectual property will be among the least successful at recruiting, engaging, and retaining an audience.

Entertainers without audiences are dead.

I think there’s a better way for Jim (and his industry) to strike back at Nintendo: just leave them behind. Nintendo wants to live in the 20th century. Nintendo doesn’t want to participate in a world of Let’s Plays and livestreams and podcasts and social media and fan participation. There’s no shortage of other game companies and other games to play and discuss. It doesn’t help that Nintendo recycles only 2 or 3 major franchises and rarely comes up with any new ideas- and fails to execute them when they do. Nintendo needs all of these copyright infringements to survive, but they don’t know it. I don’t think they will learn that lesson until they get exactly what they want.

Watching Over Copyrights and Brands, Part II

You can protect a brand in a lot of ways. You can wave the law around like a sword, or hide behind it like a shield. Or you can not worry about using the law to your advantage and just make a product that others can’t top. One of the most fun things about law school was learning about all of the ways around the law – not breaking or circumventing it, but bridging over the gaps and cracks. Gaps and cracks happen most when the law hasn’t kept up with culture or technology, which is where I think the law is most exciting and interesting.

One of the most genius aspects of the overwhelming media hype-package of Overwatch is the way it manages concerns for copyright and trademark infringement. Blizzard achieved a level of branding and promotion that reduces their concerns for infringement. Overwatch is inimitable. That doesn’t make it invulnerable, but it might be the next best thing.

I. “Junk” from “Rats” Can’t Hurt the Bastion of the Marketplace

Even before I ever visited New York City, I knew that people sold cheap, counterfeit Rolexes on the streets. Having this explained to me as a child is also how I heard about Rolex, incidentally – and learned that it was different from Rolo. I always thought it was interesting that everyone knew about this black market for counterfeit goods, but no one seemed extremely worried. I think one reason for the lack of concern is that Rolex knows they won’t go out of business because of cheap knock-offs.

The best games, from the biggest studios­, have less to worry about when their IP is infringed or “heavily borrowed.” Dominating the games market is less about legal force than it is about marketing and loyalty. For one thing, Activision can’t claim copyright over the concept of a military-shooter and force other studios to not make games that compete with Call of Duty. So Activision makes Call of Duty a brand, because brands command loyalty. A given Call of Duty game may be worse in every respect to a competitor’s game, but fans will still choose the inferior product because of its franchise. (This is one of two reasons anyone rooted for the Cubs from 1945- 2015.) Blizzard created something powerful: a genuinely superior product that commands tremendous brand loyalty.

II. Just Palette-Swap For A New Game! Sounds Pharah- don’t you McRee?

Of course, just because no one can succeed in really ripping off Overwatch doesn’t mean people won’t try. League of Legends had this experience, also. Generally, game knockoffs like these are about as much of a concern as e-mails from dispossessed millionaire Nigerian princes. It’s a reprehensible practice that creates clutter and will accidentally trick some people, but they aren’t going to displace the original.

Companies can compete with Overwatch, but they can’t replace it. The entire experience is too complete and interconnected. No parasitic effort can trick a gamer into thinking they have the real deal, no one can deliver a superior version of the same experience, and no one pull more brand loyalty in online gaming.

III. Leaving your Trace[r] Mei Show that You’ve been a [Road]Hog, and You’ll Get No Mercy

Although Blizzard won’t feel the financial impact of the feeble efforts of clones, there are things that can still undermine the game. For example, a company could make an add-on that allows players to cheat at the game. Of course, a company called Bossland did exactly that. Rather than simply ban the players who use this add-on (per violations of EULA and ToS agreements), Blizzard has gone after the makers of the program – who are super proud of what they do.

I am a little bit surprised that they cite copyright infringement in their claim. This is interesting because it seems well outside the scope of traditional copyright law, but copyright law has been slowly evolving in the last decade. I think the technical details of how Bossland’s program interacts with Blizzard’s game could be essential to determining if applying copyright law is appropriate. After the recent ruling in Google v. Oracle, courts are more likely to find infringement just from making two programs talk. (The fair use defense that saved Google is not going to help Bossland.) In this case, it seems extremely likely that Bossland had to access and take (or manipulate) some of Blizzard’s code, which may be enough for infringement. But the ways that 3rd parties can interact with programs is still an interesting question for copyright law to resolve.

Regardless of the copyright claim, I think the other claims made by Blizzard are plenty strong enough to win, so I don’t think a court will end up going into detail about it.