Cyberlaw Central

Mike Masnick at Techdirt has written the latest in a series of posts which discuss the rationale and basis for what we think of as “Intellectual Property.” It’s a well written series, I’d recommend that you read it. I don’t agree with all he says, but it’s well reasoned.

It’s of particular interest to me because I often counsel people on their creative endeavors who do not know what regime under the umbrella of “intellectual property” their particular endeavor is best, whether it be trademark, copyright, patent, or trade secrets. It’s also interesting because people often think of “cyberlaw” as being the intersection of intellectual property and the Internet, but it really is much more than just that. It’s the application of both new and existing legal principles, whether they be IP or other regulations, to the Internet and other avenues of electronic communications. As more and more businesses go online, it’s rarer that people won’t have some issue that intersects with cyberlaw at one point or another.

Turning back to the article, to me the most important rationale for copyright and patent protection is the protecting the right of the creator to control the use, distribution, or exploitation for their ideas for a limited period of time. Trademark is a slightly different rationale, in that trademarks are tied into a consumer protection rationale and the right to identify the source of particular goods or services to avoid consumer confusion.

So, what rationale do you think is best to apply? Also, what term would you use other than “intellectual property” if you had a choice to do so? Those are certainly interesting questions posed by the article. Food for thought, as they say.

I attended the session this morning at INTA 2007 on Internet advertising, specifically the focus was on keywords but popups were discussed as well. The speakers were Peter Becker of Microsoft, Laura Covington of Yahoo, Lauren Fisher of AOL, and Rose Hagan of Google.

The most interesting part for me was a comparison of the different notice and takedown procedures implemented by each company. In particular, Google is unique in that it takes down all uses of a competitor’s trademark, even in cases of fair use such as in comparative advertising. While broader than what the law requires, it was easier for Google to administrate such a policy because, as the other speakers admitted, it is hard to scale a system which requires a balancing of factors like fair use.

I would have appreciated a more thorough analysis of whether using a trademark as a trigger for the display of an advertisement is a trademark use. Some courts say yes, and others say no. The speakers, of course, were advocating the more favorable to them “no”, but it is a complicated issue that deserved better.

Overall, the session was a good one, quite packed in terms of attendees. I was glad to have found a seat near the front.