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.
Google recently forfeited a half billion dollars generated by counterfeit drugs sales after being being held responsible by the United States Department of Justice. Google stock then quickly dropped 22 percent from $627 to $490 per share. Is it possible that investors may lose some confidence that Google is able to generate the same profits legally? After all, their business model replies upon the presumption that nothing online has value until it is found on Google and then monetized by their ads. This is a clear conflict of interest between the gathering of ‘free’ information and advertising around that same content. No wonder they oppose a bill that would limit the illegal distribution of copyrighted works online.
The other day I read a post on Facebook from a friend who said that the real elephant in the room isn’t censorship. It is that the average person has been stealing music, movies and software for years and nobody wants the free buffet to end. The concept that all ‘knowledge should be free’ is absurd. While it is noble that Wikipedia remains ad-free, its founder Jimmy Wales pleads for donations totaling $16 million annually. The world needs to get reacquainted with the concept that we all win when everyone is compensated for their hard work and creativity.
Google already censors sites they deem objectionable for content such as pornography, racism and political protests. They even blocked The Pirate Bay in 2009 and then backpedaled after some criticism. Their problem with the Stop Online Piracy Act (SOPA) is not whether content on the web is blocked, it is over who does it: them or our democratically elected officials.
Last week Google distributed a Goebbels-worthy propaganda cartoon that gathered four million signatures protesting SOPA in one day. I would be hard pressed to believe that many of those folks actually read the bill before falling in suit. This did not demonstrate the power of the Internet, but that of one organization. Shortly thereafter, Barack Obama made a public announcement against the bill. This is contrary to the president’s previous commitment to remain neutral due to the fact that his two largest supporters, Hollywood and Silicon Valley, are diametrically opposed on this issue. I don’t think I need to be a psychic detective to predict the direction of his fundraising strategy for the 2012 election. Maybe the argument should not be about limiting the power of our government or even that of one massive corporation. Perhaps we should focus on stopping them from becoming one and the same.
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…
Set in the year 1865, the television show Hell on Wheels centers on the individuals working on the construction of the first transcontinental railroad. Colm Meaney plays Thomas “Doc” Durant, a greedy entrepreneur and the driving force behind this railroad, where he hopes to take advantage of the changing times and make a fortune. Although his mad quest is noble in many ways he goes, for the most part, unwatched. He successfully kept the US government at bay by occasionally returning to lobby Washington while his operation ran as he saw fit.
Here we are in the 21st Century, where new railroads have been constructed and new entrepreneurs are taking subsidies and lobbying the US government on how they think their throughways should be governed. The Internet is not just a bunch of wires and tubes, but the sidewalks, highways and railroads of our nation. Profiteers want to bamboozle you into thinking that this is not the wild west. It is.
I was recently on Capitol Hill presenting along side many of America’s labor unions in support of the pro-jobs bill known as Stop Online Piracy Act (SOPA). We were regular working joes presenting to congress and outside were teams of Google suits with wolfish grins. I can tell you first-hand that those leading the charge against SOPA are the richest people in the history of mankind. They want to make sure they can run their operations without regulation as long as they can. The non-billionaires that oppose this bill are the gunslingers who also profit from this lawlessness.
Every nation has border security. If a swindler tries to make his way across the American border he will likely meet with an enforcement agent and, if found a threat to American consumers, will likely be turned around and not make it across the border. If a swindler makes it across the border, and is caught, he is deported. SOPA is nothing more than a border protection act.
Google and Facebook are not their own nations and they do not deserve their own laws. They are companies incorporated in the United States and want to do business here. They also stand to benefit from the sale of illegal goods to American consumers. Because they believe older generations’ learning curves are slower, they are making outrageous statements like we are going to “break” or “censor” the Internet. Heed my warning — Do what is best for the consumer, not the billionaires and the gunslingers.
A great American Eleanor Roosevelt chaired a committee to draft The Universal Declaration of Human Rights. In 1948 it was adopted by the United Nations. Article 27 Section (2) of this declaration 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.” In 2011 those rights are under attack. Under attack by faceless perpetrators who are hiding behind these Rogue websites. Forty-seven per cent of America’s gross national product now comes from Intellectual Property. That means our nation’s most precious resource is its IP. Rogue sites are not only the vessel of choice of the modern criminal, I have seen first-hand terrorist and other criminal organizations selling counterfeits online to fund their activities overseas. I will tell you this — They don’t care about the economic impact, labor standards or consumer safety.
The Internet is a real place with real people, and real businesses need real laws. Don’t let these billionaires swindle you into thinking otherwise. Wyatt Earp needs to clean up. Let’s do this!