The reason the case against Megaupload founder Kim DotCom has hurt brand protection is because it has nothing to do with trademark enforcement and no one knows it. With all of the news this case is getting, the public-at-large does not know the difference between counterfeiting and piracy. There are many different kinds of Intellectual Property but only trademark was set up to protect the consumers before the content owner. The purpose of a trademark is to identify the origin of a good or service. The way this works is that, if you see my name or logo on my product, you can trust that it was made by me. Trademarks are set up as a seal of trust and quality between a manufacturer and a consumer. People who slap your favorite company’s logo on an inferior product deserve to be made to stop. By placing a company’s logo on a commercial work without permission helps dilute the brand. Even if your use is apparently harmless, they must enforce all unauthorized uses in order to be allowed to enforce the baddies. It’s the basic rule that your school teacher had when you were a child, “If I make an exception for you, I’d have to do it for all the other kids.” Copyright protection is quite different. It protects the creator or the owner. While that is still a noble cause, the difference needs to be made clearer to the public. The Copyright Act of 1790 granted an author up to 28 years of exclusive rights to his work as long as he was alive. In 1948 the United Nations passed The Universal Declaration of Human Rights which states ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ I am citing this to make it clear that I vehemently support the protection of content. I do not, however, support the combining of these interests. Our founding fathers were careful to place copyright in the hands of the legislature (Library of Congress) and trademarks in the hands of the Executive Branch (US Patent and Trademark Office). This was no mistake.
In 1946 the United States passed the Lanham Act which prohibited trademark infringement, trademark dilution and false advertising. In 1984 the Trademark Counterfeiting Act established specific criminal penalties for the commercial use of a counterfeit trademark. Later, in 1999, the AntiCybersquatting Act was passed to prohibit the unauthorized commercial use of a trademark in a domain name. President George W. Bush made trademarks a priority when he appointed the first-ever Intellectual Property Czar, which was an undersecretary position within the Commerce Department. Of course trademark protection should be important. Our brands are exported all over the world and we rely on the reputation of those brands for more than a third of our economy. When President Obama was elected, he promoted the IPEC (Intellectual Property Enforcement Coordinator) position from undersecretary to full cabinet status. Somewhere between then and now this person with executive power has been dubbed the Copyright Czar. If the Executive Branch is granted to be in charge of trademarks and patents, why are they in the copyright business? Perhaps American corporations and our own government have been blurring the distinction between the two to make sloppy cases less noticeable. Or perhaps this is happening so that the specificity of Intellectual Property Rights becomes so unrecognizable that anyone can be prosecuted for almost anything. Or perhaps this is all just a completely innocent mix-up. Once we start to see copyright enforcement activity at the USPTO, we will know that our constitution is being ignored. Protection of all property needs to be respected, but the trademark community needs to stand alone in this fight if we want to bring trust back to the consumer.
Now I’m going to finish my coffee.
Imagine a world where all of the world’s creative works are reduced to ones and zeros and the control of that art is in the hands of a few tycoons. A world where those same few Wall Street companies have enough money, influence and power to force all creators to work for free. That time is now.
Beginning midnight on Wednesday January 18th, 2012 a few popular websites shut down for 24 hours as a planned protest of the Stop Online Piracy Act and Protect IP Act known as SOPA & PIPA, respectively. In fact, one protester’s website says “Imagine a World Without Free Knowledge.” Reducing my creative works to ‘knowledge’ or ‘data’ that can be commoditized is so Skynet.
Some people spend their entire lives creating that one toy, one song, one book, one clothing accessory. Their legacy. In most cases, this creation is the only property of value they will have to pass onto future generations. Only to have some tycoon call it ‘information’ and re-purpose it for their own profit. A creative work is not mere ‘knowledge’. It’s a human creation. Someone’s child.
This Ain’t a Movie…
Here is an excerpt from the popular movie The Matrix where the villain explains to the hero how, in the film’s bleak future, one organization controls the masses:
- “Did you know that the first Matrix was designed to be a perfect human world? Where none suffered, where everyone would be happy. It was a disaster. No one would accept the program. Entire crops were lost. Some believed we lacked the programming language to describe your perfect world. But I believe that, as a species, human beings define their reality through suffering and misery. The perfect world was a dream that your primitive cerebrum kept trying to wake up from… …Human beings are a disease, a cancer of this planet. You’re a plague and we are the cure.
What Agent Smith did not understand was that the human condition is more than ones and zeros. Our ideas are more than data that can be distributed perfectly with algorithms and without complication. Humanity is suffering and pain. Humanity is joy and laughter. Humanity is complication. Imposing any perfect-world scenario should not be mistaken as naive. The last organization to almost succeed in creating a Utopian society were the Nazis. How’s that working for you, Agent Smith?
The American dream used to be to learn a trade, earn a decent living, have a house, and make your mark. That is still my dream and the dream of many others but it is no longer the dream that is being fed to us. This new dream is to start a company, sell it to Wall Street for a hundred million dollars; rinse and repeat. Although we are being told it is our dream, doesn’t it look a lot like a plan for world domination?
Let Me Clear Up a Few Things…
SOPA will not break the Internet. The Internet is a network of millions of networks controlled by millions of people. It’s not one thing that can break. Yes, this regulation will create more work for some large, not-so-poverty-stricken corporations. But these new jobs that will be created will actually help keep the virtual streets safe for our kids.
SOPA is not censorship. Censorship is the suppression of speech or other public communication which may be considered objectionable. This bill will not stop anyone from being original or objectionable. It will, however, stop people from distributing your original works without your permission.
SOPA does not bypass due process. In order for the owner of a creative work to enforce against a rogue site, they must prove to a judge that the site has received refuge from outside the United States and that there is no reasonable way to properly contact the host or registrar. Only then will a judge sign an order to block the illegal website.
Google, Facebook and Twitter already have systems in place to filter content they deem objectionable such as spam, child pornography and even racism. Piracy can join that mix without a ton of disruption.
I have been working to prevent the theft of others’ Intellectual Property my entire adult life just as my father did before me. I have faith in our judicial system, which is comprised of thousands of officials whom we ourselves elect. I do not trust a handful of tycoons.
Now, I’m going to finish my coffee…