Intellectual Property Law¶
I am not a lawyer, and this is not legal advice. The subject covered here is not “law” but “moral foundations of law”, part of the philosophy of ethics.
Also, the takes here are very “cold”. They have been explained before, by others.
The rant is here so that I can avoid repeating it. All mistakes are my responsibility.
Among the people who I have learned for are Richard M. Stallman and Cory Doctorow.
Fundamentally, IP law is a misnomer. It is a collection of different laws covering different things. It is best understood as a collection of unrelated things.
All of these laws are designed as trade-offs: can we encourage maximum good for the least cost? One of the reasons they are highly contentious is because shifting the trade-off to have a different party incur the cost is easy to argue for.
Trademarks cover various things: logos, slogans, words, and icons. There are also various forms of trademark or trade symbol protection.
The original intent of trademark law is as an anti-consumer fraud device. The idea is that consumers should be able to trust the source of the goods they acquire.
The simplest example is that of a logo.
Let’s say I make tables. I use quality wood and expert craftsmanship to make good tables.
I mark these tables with a “𝕄” mark. People know that this mark means it is a table made with high quality wood and expert craftsmanship.
Even if I never make chairs, if someone was to make chairs and mark them with “𝕄” it would be reasonable for consumers to assume I made those. If those chairs are shoddily made, this reflects on my tables and their brand.
This is what trademarks cover. This is why “fields of endeavors” is a vague boundary.
What if someone makes, say, shirts? Is that close enough to tables?
The answer should be obvious: I don’t know. This would be a matter for courts to decide if confusion is likely and what liability is there.
Trademark law, and trademark enforcement, are complicated by necessity. This is an unfortunate truth.
As in any such complicated law we should be ready for both kinds of mistakes: false enforcements and missing enforcements.
A “false enforcements” is a case where a trademark violation should have been decided for the good of society. A “missing enforcement” is a case where a trademark violation was decided to the detriment of society.
That these happen is not a knock against trademark law in general. This is not a defense of trademark law either!
It is possible that trademark law should be amended. Amending the law, ideally, would reduce both kinds of errors.
More typically, it would reduce one in favor of the other. Whether this is a good idea is a complicated decision.
All of these things are important to keep in mind when evaluating the law, as well as the outcome of various cases. It is too easy to rush to conclusions and make the law worse.
It is important to understand the original intent of patent law. The context in which patents were invented was that people would take knowledge to their graves to protect it.
The goal of patent law is to give people an incentive to invent secret techniques and publish them. In return for publishing the technique they receive exclusivity for some time.
The first trade-off in patent law is how strict to be about the notions of secret technique and publish. People will publish as little about the technique, and as confusingly as they can get away with.
One of the goals of the patent office is to verify that the “publishing” is clear enough. It is not unlikely that the current standards are too low.
The other goal of the patent office is to verify that what is described is, indeed, a secret technique. It is not unlikely that the current standards are too low.
However, it is important to note that here, too, there are trade-offs. Making the standards too strict would either reduce inventions of new techniques or keeping them as trade secrets forever.
Last, but certainly not least, we come to copyright.
Copyright was invented as a way to force companies who owned machines which could copy books to pay the people who wrote books. The two common ways of paying people for books are “work for hire” and “buying a license”.
Buying licenses is a complicated topic of contract law, the license can be exclusive, time-bound, both, or neither, among other things. Works for hire is simpler: where it applies, the company owns the copyright in return for paying the author in advance.
After copying other things, like music or video media, became easier, copyright law grew to apply to those as well. By now, copyright “maximalism” attaches copyright to any “creative work”.
By now, what copyright covers and who owns it are mostly a matter of consensus. However, there are still degrees of freedom in the law:
- What copying acts fall under the law?
- How long does copyright last for?
The first question is the “fair use exemption”. Currently, fair use is limited both by law and precendent. One potential way to amend copyright law is to increase what the exemption covers.
The second question got the most political will applied to it. For example, the Term Extension Act faced both political and legal opposition.
It is important to note though that, for example, “Steamboat Willie” is not the modern Micky Mouse. If someone tried to derive something from Steamboat Willie, how influenced would they need to be from modern Mickey Mouse before it violated the copyright act?
This is, in many ways, a question of what falls under “fair use”.
It is widely accepted that, as it stands, copyright law does not make trade-offs that are optimal for society. It is also reflecting, by extension, on general IP law.
The fact that the legislative branch has been so captured by corporate interests casts doubt on whether the trade-offs in the rest of the related laws are designed for scietal benefits. If for no other reason, it would be good to amend copyright law to be less restrictive.
As a category, “IP law” is not a coherent one. However, as an alignment of corporate interests, many of these laws are sponsored by similar financial interests.