You're using the INTA as your primary reference! An organization which describes itself as:
The International Trademark Association (INTA) is a global association of trademark owners and professionals dedicated to supporting trademarks and related intellectual property in order to protect consumers and to promote fair and effective commerce.
I cannot think of a better example of what an industry shill does.
When you get past the URL and on to the substance, maybe you can comment on that too. I think McKenna's argument that it was the addition of consumer confusion that led to the expansion of trademark rights should be particularly interesting to those who think that "property talk" is the "problem." He says that under the original natural rights view of trademarks, the rights would be more circumscribed than they are today.
I have regularly discussed it in the past, though you (as per usual) pretend I have not. I have explained that it's a recent change to trademark law, and a complete bastardization of the law and its intent.
I've said this for years (not hard to find) even though you claim I ignore it.
Funny.
Nice try. In that article, you discuss dilution, and you mention what you think is "the real purpose of trademark law: to prevent consumer confusion and 'passing off' of one good as made by someone else." I'm not talking about dilution (though I think you're wrong about that as well). I'm talking about your claim that trademark law was originally only about consumer confusion. It wasn't. Protecting markholders from misappropriation has always been a part of trademark law.
I recommend this article for starters: http://www.inta.org/Academics/Documents/finalndlawreview.pdf ("As this Article demonstrates, trademark law was not traditionally intended to protect consumers. Instead, trademark law, like all unfair competition law, sought to protect producers from illegitimate diversions of their trade by competitors.")
Can you explain why you think that the only "real" purpose of trademark law is to protect against consumer confusion? That's the issue I'm actually talking about.
I'm going to deal with this last bit with regards to the producer-creative industries, which have had considerable evidence that having knowledge that you possess a counterfeit can, in certain circumstances, lead to both innovation (through adaptation of the original concept) and increasing demand for the legitimate item (for example, counterfeit iPhones can lead to increased demand for legitimate iPhones once the initial purchase is obsoleted.)
I generally agree with trademark law but for you to defend it the way you do makes you look silly. This reflects poorly on your position and makes it less likely that people will take you and, by extension, your position seriously. You are only harming your position and for you to respond with such a childish, silly, and accusatory comment and then say 'serious question' is only going to make people think twice about taking you seriously. There is a proper way to have a serious discussion and to ask serious questions. The way you did it is a bad example of this.
I feel that same way when Mike attacks the integrity of those he disagrees with.
First of all quoting a union bank on laws that serve its own private interests doesn't really hold much weight of anything.
"both of which are seen as promoting competition"
seen as promoting competition ... by whom and why should I care how they see it as? I don't see trademark law as having that much to do with competition. That's not to say I disagree with it but, if anything, counterfeit products are a form of competition.
I'm quoting the Fifth Circuit's recitation of the purpose of trademark law. That one of the parties is a bank is irrelevant. And, yes, it's competition. But it's *unfair* competition. Trademark law is a subset of unfair competition law.
No, I think the purpose of trademark is (or should be) to protect consumers from confusion. That's how it's usually advertised.
There's what you think the law should be, and then there's what the law actually is. I'm pointing out that Mike's "journalism" only discusses the former. Considering he's made a career of lambasting those who leave out the truth, it seems appropriate to do the same to him.
But the second reason doesn't really address the argument being made in the OP. The argument is that most people (allegedly) know that the product is counterfeit. If this is true how does the counterfeit affect the goodwill and reputation of the original since no one thinks it's an original.
Trademark law also protects the markholder's goodwill from misappropriation. It incentivizes the markholder to create higher quality goods because he knows that his goodwill will be protected. People want the knock-off only because the markholder has invested time, energy, and money into his goodwill. The infringer profits by free riding and reaping where he has not sown.
*yawn*. [BLANK], why won't ever talk to me about [BLANK], even though [BLANK] continually brings up references where you have in fact talked about your views on [BLANK]?
Broken records are annoying.
Whiny broken records are just [BLANK].
I've only seen Mike discuss consumer confusion. He seems to completely ignore the part of trademark law that's about protecting the markholder's goodwill. It's a valid point.
Perhaps he's creating a counterbalance to groups like IPO. They will never talk about the downside to Imaginary property rights. Why is that? Serious question.
Why is it that some group I've never heard of might not have made some argument? That's not a serious question. Does the IPO even deny that trademark law is also about protecting consumers?
In fact, multiple studies have found that most people buying counterfeit goods aren't being fooled, but know they're buying counterfeit, but are only doing so because they can't afford the real version.
You seem to think that trademark law is only conerned with consumer confusion. It actually has two purposes:
These limitations are manifestations of the two principal concerns of trademark law, both of which are seen as promoting competition: (1) to protect consumers against confusion and monopoly, and (2) to protect the investment of producers in their trade names to which goodwill may have accrued and which goodwill free-riders may attempt to appropriate by using the first producer's mark, or one that is deceptively similar.
Union Nat. Bank of Texas, Laredo, Tex. v. Union Nat. Bank of Texas, Austin, Tex., 909 F.2d 839, 843-44 (5th Cir. 1990).
Is there any particular reason you never discuss the other purpose for trademarks, i.e., the misappropriation of the markholder's goodwill by free riders? Do you deny that that's also a purpose, or do you just willfully ignore it because you don't like it? Serious question.
Again, go google how laws and the courts work. You are conflating 2 or 3 differing actors and benficiaries of laws and saying they are all equivalent. They arent. You, when you pay your taxes, are not a "government actor" in the same sense as someone who is wronged and uses the law for redress. You are throwing everyone who has any interaction with the government from any side together in a giant straw-man and then counter-arguing your own incorrect point as if *we* said any such thing.
You are wrong. Learn how this stuff works, then come back and we can have an actual discussion about the merits and limits of copyright law with regard to its possible suppression of speech.
Since you're so learned in the law, can you walk me through the state actor doctrine analysis? Thanks.
Again, you are being over simplistic thinking that 'pro-IP' only means people should have exclusive (and presumably total) control over imaginary property, even when said imaginings aren't automatically novel or unique.
And it's an incredibly dumb argument to say that because he thinks bad IP is bad, he thinks all IP is bad. Logic, can you do it?
That's equivalent to saying that because of witch-burnings or Crusades, all Christians are evil superstitious murderers.
If there's absolutely no part of the current IP system that Mike supports, then he can't possibly be pro-IP. Does Mike support any part of it? If so, which part? None of us can answer that question because Mike won't ever go on the record with a definitive statement of his views. As far as I can tell, he rationalizes his position as not being anti-IP because he thinks that in some alternate reality it's possible that there'd be some form of IP that he'd support. But that's just dodging the question. The question is whether there's any part of the current IP system that he supports. He simply will not answer that question directly and honestly. And it's not to imagine why he won't.
But is he pro-IP in that he thinks anyone should have those exclusive rights in the first place? I've never seen anything that leads me to believe he does, yet he seems to take offense at the suggestion that he's anti-IP. Simply saying, "I'm not anti-IP, I'm anti-bad IP" is bullshit. If he thinks all IP is bad IP, then he's anti-IP. It's weasel words. That's what bothers me. I think he's being less than honest on his stance.
Without the DMCA, YouTube would take the video down because, now with notice and thus knowledge of the infringement, it would face contributory liability (knowledge + material contribution). In that case, I don't think anyone would contend that YouTube is a government actor. Complying with the law to avoid liability doesn't make them one.
But I have trouble seeing how the DMCA changes this. YouTube would still take the video down lest it be liable for contributory infringement. The DMCA doesn't change things. All it says is that if YouTube takes the video down, it's liability will be limited. But that same limitation on its liability exists without the DMCA.
That what the Framers originally thought when they included in the Constitution, isn't it? Just because it's gotten twisted into something else along the way doesn't make it correct.
And you have just put forth a compelling argument as to why copyright should go back to opt-in. If automatic copyright isn't an incentive for the creation of new works, then it should be removed from copyright law to comply with the Copyright Clause.
I think the Framers held a plurality of views, and I don't read the Copyright Clause as mandating that there can only be copyright to the extent that it incentivizes new works but no further. Congress gets to decide what promotes the progress, and their hands aren't tied by some narrow reading of the Clause as copyright opponents would like them to be.
Dumbass. They are both acting within the scope of the law set BY THE GOVERNMENT. The authority to be able to issue that takedown is given BY THE GOVERNMENT. Just because someone else *uses* a law doesn't mean its not a constitutional or governmental issue. Or, do you really think that this is ONLY the case when its JUST the government, directly, doing the prosecuting? If so, please go back to law school, or google, or anywhere and get educated on the basics of applicability of law and rights enumerated in the constitution.
Why am I not surprised this was marked "insightful." Sigh. Not everyone who acts "within the scope of the law" is a government actor. Give me a break. When you file your taxes, are you a government actor? Of course not. When I drive on the right side of the road and under a certain velocity, am I government actor? Nope.
People could and did send requests to service providers to have materials taken down before the DMCA was passed, and service providers could and did take down materials upon request. The DMCA didn't create some new-found authority to do these things. And nor does the DMCA mandate that rightholders or service providers must do these things. All it says is that, if a rightholder sends a notice meeting certain conditions, and if the service provider takes the complained-of material down, then the service provider's potential liability is limited.
The DMCA provides a potential benefit to the service provider if it chooses to take a particular action. That's it. I don't see how that makes the service provider a government actor. The tax code gives me a tax benefit if I have another kid. That doesn't mean I'm a government actor when I have another kid. Have you actually done any research whatsoever on the state actor doctrine? I don't get the sense that you have.
In my opinion, it violates the right of due process. It is also used as a tool to violate the first amendment, although that's more about how it's used than about the law specifically.
It look to me like the law was designed the way it was with the specific intention of bypassing constitutional protections.
Let's say I upload a video to YouTube, and Sony issues a takedown notice which YouTube acts on. Which party is the government actor, Sony or YouTube? Or is it both?
You, Karl and I had a lengthy discussion about this awhile ago and I know that you believe (incorrectly IMO) that DMCA takedowns cannot violate the Constitution because they are not from a government actor. Karl and I disagreed because regardless of who actually sends the notice it's still backed by the might of the Federal government.
In this case we are talking about something completely different though, we are talking about takedowns issued by those who do not hold the copyright in question. Since neither party is actually the copyright holder it would never be established that a copyright violation occurred and the speech would remain protected by the First Amendment wouldn't it?
It seems to me that in this type of situation it's most certainly a First Amendment violation by using the power of the government to quash protected speech.
I don't agree that the sender of a takedown notice is a government actor. No court has ever addressed the issue, and I assume it's because the argument is so bad that no one's ever made it--not even the EFF, who takes a broad view of such things. But let's assume that the sender of a legitimate takedown notice is a government actor. I'm not sure that would also make the illegitimate sender of a takedown notice a government actor, since then, they would only be purporting to be acting under color of law--they wouldn't actually be doing so. I'd have to give that one some more thought, though.
Since it's an action authorized, enabled, and enforced by the US government, it's effectively the US government acting through a proxy. Therefore constitutional protections should apply.
I'm still waiting to hear which part of the Constitution it supposedly violates.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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You're using the INTA as your primary reference! An organization which describes itself as:
The International Trademark Association (INTA) is a global association of trademark owners and professionals dedicated to supporting trademarks and related intellectual property in order to protect consumers and to promote fair and effective commerce.
I cannot think of a better example of what an industry shill does.
Yes, it happens to be posted on that site. Maybe you'll prefer this link to the Notre Dame Law Review where it was originally published: http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1309&context=ndlr
When you get past the URL and on to the substance, maybe you can comment on that too. I think McKenna's argument that it was the addition of consumer confusion that led to the expansion of trademark rights should be particularly interesting to those who think that "property talk" is the "problem." He says that under the original natural rights view of trademarks, the rights would be more circumscribed than they are today.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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I have regularly discussed it in the past, though you (as per usual) pretend I have not. I have explained that it's a recent change to trademark law, and a complete bastardization of the law and its intent.
https://www.techdirt.com/articles/20090923/0215516292.shtml
I've said this for years (not hard to find) even though you claim I ignore it.
Funny.
Nice try. In that article, you discuss dilution, and you mention what you think is "the real purpose of trademark law: to prevent consumer confusion and 'passing off' of one good as made by someone else." I'm not talking about dilution (though I think you're wrong about that as well). I'm talking about your claim that trademark law was originally only about consumer confusion. It wasn't. Protecting markholders from misappropriation has always been a part of trademark law.
I recommend this article for starters: http://www.inta.org/Academics/Documents/finalndlawreview.pdf ("As this Article demonstrates, trademark law was not traditionally intended to protect consumers. Instead, trademark law, like all unfair competition law, sought to protect producers from illegitimate diversions of their trade by competitors.")
Can you explain why you think that the only "real" purpose of trademark law is to protect against consumer confusion? That's the issue I'm actually talking about.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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I'm sure like most things there's pros and cons.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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I feel that same way when Mike attacks the integrity of those he disagrees with.
First of all quoting a union bank on laws that serve its own private interests doesn't really hold much weight of anything.
"both of which are seen as promoting competition"
seen as promoting competition ... by whom and why should I care how they see it as? I don't see trademark law as having that much to do with competition. That's not to say I disagree with it but, if anything, counterfeit products are a form of competition.
I'm quoting the Fifth Circuit's recitation of the purpose of trademark law. That one of the parties is a bank is irrelevant. And, yes, it's competition. But it's *unfair* competition. Trademark law is a subset of unfair competition law.
No, I think the purpose of trademark is (or should be) to protect consumers from confusion. That's how it's usually advertised.
There's what you think the law should be, and then there's what the law actually is. I'm pointing out that Mike's "journalism" only discusses the former. Considering he's made a career of lambasting those who leave out the truth, it seems appropriate to do the same to him.
But the second reason doesn't really address the argument being made in the OP. The argument is that most people (allegedly) know that the product is counterfeit. If this is true how does the counterfeit affect the goodwill and reputation of the original since no one thinks it's an original.
Trademark law also protects the markholder's goodwill from misappropriation. It incentivizes the markholder to create higher quality goods because he knows that his goodwill will be protected. People want the knock-off only because the markholder has invested time, energy, and money into his goodwill. The infringer profits by free riding and reaping where he has not sown.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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Broken records are annoying.
Whiny broken records are just [BLANK].
I've only seen Mike discuss consumer confusion. He seems to completely ignore the part of trademark law that's about protecting the markholder's goodwill. It's a valid point.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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Why is it that some group I've never heard of might not have made some argument? That's not a serious question. Does the IPO even deny that trademark law is also about protecting consumers?
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
You seem to think that trademark law is only conerned with consumer confusion. It actually has two purposes:Union Nat. Bank of Texas, Laredo, Tex. v. Union Nat. Bank of Texas, Austin, Tex., 909 F.2d 839, 843-44 (5th Cir. 1990).
Is there any particular reason you never discuss the other purpose for trademarks, i.e., the misappropriation of the markholder's goodwill by free riders? Do you deny that that's also a purpose, or do you just willfully ignore it because you don't like it? Serious question.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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And yet I'm here posting and engaging others substantively. Maybe one day you'll do the same.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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You are wrong. Learn how this stuff works, then come back and we can have an actual discussion about the merits and limits of copyright law with regard to its possible suppression of speech.
Since you're so learned in the law, can you walk me through the state actor doctrine analysis? Thanks.
On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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And it's an incredibly dumb argument to say that because he thinks bad IP is bad, he thinks all IP is bad. Logic, can you do it?
That's equivalent to saying that because of witch-burnings or Crusades, all Christians are evil superstitious murderers.
If there's absolutely no part of the current IP system that Mike supports, then he can't possibly be pro-IP. Does Mike support any part of it? If so, which part? None of us can answer that question because Mike won't ever go on the record with a definitive statement of his views. As far as I can tell, he rationalizes his position as not being anti-IP because he thinks that in some alternate reality it's possible that there'd be some form of IP that he'd support. But that's just dodging the question. The question is whether there's any part of the current IP system that he supports. He simply will not answer that question directly and honestly. And it's not to imagine why he won't.
On the post: Be Happy: Software Patents Are Rapidly Disappearing Thanks To The Supreme Court
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On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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And yet I'm here having a nice substantive discussion with some of the other commentators. You should join us!
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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Without the DMCA, YouTube would take the video down because, now with notice and thus knowledge of the infringement, it would face contributory liability (knowledge + material contribution). In that case, I don't think anyone would contend that YouTube is a government actor. Complying with the law to avoid liability doesn't make them one.
But I have trouble seeing how the DMCA changes this. YouTube would still take the video down lest it be liable for contributory infringement. The DMCA doesn't change things. All it says is that if YouTube takes the video down, it's liability will be limited. But that same limitation on its liability exists without the DMCA.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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And you have just put forth a compelling argument as to why copyright should go back to opt-in. If automatic copyright isn't an incentive for the creation of new works, then it should be removed from copyright law to comply with the Copyright Clause.
I think the Framers held a plurality of views, and I don't read the Copyright Clause as mandating that there can only be copyright to the extent that it incentivizes new works but no further. Congress gets to decide what promotes the progress, and their hands aren't tied by some narrow reading of the Clause as copyright opponents would like them to be.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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Why am I not surprised this was marked "insightful." Sigh. Not everyone who acts "within the scope of the law" is a government actor. Give me a break. When you file your taxes, are you a government actor? Of course not. When I drive on the right side of the road and under a certain velocity, am I government actor? Nope.
People could and did send requests to service providers to have materials taken down before the DMCA was passed, and service providers could and did take down materials upon request. The DMCA didn't create some new-found authority to do these things. And nor does the DMCA mandate that rightholders or service providers must do these things. All it says is that, if a rightholder sends a notice meeting certain conditions, and if the service provider takes the complained-of material down, then the service provider's potential liability is limited.
The DMCA provides a potential benefit to the service provider if it chooses to take a particular action. That's it. I don't see how that makes the service provider a government actor. The tax code gives me a tax benefit if I have another kid. That doesn't mean I'm a government actor when I have another kid. Have you actually done any research whatsoever on the state actor doctrine? I don't get the sense that you have.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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Does Mike think there should be any exclusive rights for authors or inventors? And, more importantly, why? Let's see the answer to that.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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Thanks for admitting you'd rather abuse the "report" button than engage in a substantive discussion. Mike must be so proud!
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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It look to me like the law was designed the way it was with the specific intention of bypassing constitutional protections.
Let's say I upload a video to YouTube, and Sony issues a takedown notice which YouTube acts on. Which party is the government actor, Sony or YouTube? Or is it both?
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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In this case we are talking about something completely different though, we are talking about takedowns issued by those who do not hold the copyright in question. Since neither party is actually the copyright holder it would never be established that a copyright violation occurred and the speech would remain protected by the First Amendment wouldn't it?
It seems to me that in this type of situation it's most certainly a First Amendment violation by using the power of the government to quash protected speech.
I don't agree that the sender of a takedown notice is a government actor. No court has ever addressed the issue, and I assume it's because the argument is so bad that no one's ever made it--not even the EFF, who takes a broad view of such things. But let's assume that the sender of a legitimate takedown notice is a government actor. I'm not sure that would also make the illegitimate sender of a takedown notice a government actor, since then, they would only be purporting to be acting under color of law--they wouldn't actually be doing so. I'd have to give that one some more thought, though.
On the post: Since Copyright Is So Handy For Censorship, It's Tempting To Use It To Censor Lots Of Content
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I'm still waiting to hear which part of the Constitution it supposedly violates.
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