Apples And Oranges: The US Patent And Trademark Office Combined Copyright And Trademark And Nothing Good Will Come Of That
from the fruit-salad dept
Last week I found myself assigned to speak on a “streaming piracy” panel that had gotten bolted onto an event otherwise focused on trademark counterfeiting, despite the latter being a completely separate legal issue connected with a completely separate legal doctrine.
It was all part of the USPTO’s roundtable on “future strategies in anti-counterfeiting and anti-piracy,” which was, by its very design, unlikely to be of much use in shedding light on the complexities surrounding either issue. Not just because it erroneously treated the two as two sides of the same coin, but even logistically, because to call each a “panel,” as they did, is to use the term loosely. While it is good that they (apparently?) accommodated everyone who applied to speak, having five or six people, plus a moderator, slated to speak in a session lasting less than an hour is not a good way to foster illuminating discussion. Furthermore, when there is only one person speaking for the public interest surrounded by five others speaking for rightsholders, letting the rightsholders bloviate for as long as they wanted while only policing the public interest speaker for time is not a great way to build a careful record, which is usually thought to be the goal of events like these, especially if the USPTO is planning to use what it learned as a basis to advocate for any policy changes on either front.
(And it’s even worse when the sole person policed is the single woman on a six-person panel. Obviously the time constraints meant that comments from everyone needed to be brief. And perhaps my experience was simply a byproduct of my window to speak occurring next to last. But I’m calling out being the only participant shushed because it is not the first time I’ve been the only woman in a professional discussion otherwise populated entirely by men whose opportunity to have the floor was policed, when no such limits were placed on the men. These sorts of “coincidences” seem to happen a little too often to be just coincidence, and they need to not be happening at all. Police everyone, or no one, but do not just leave it to women to fix a meeting’s timing problems.)
Anyway, with the little time allotted to me, I tried to make the following interrelated points. First, that questions of piracy had no business being discussed in the context of counterfeiting. Second, that the entire discussion was being skewed by a lot of unchallenged assumptions, which all needed closer scrutiny. And, third, that the public interest was largely being ignored.
On the first point, dragging “piracy” into an anti-counterfeiting discussion creates a significant apples and oranges problem. “Counterfeiting,” first of all, is a very specific technical legal term, and it applies only to things that are trademarked. Trademark itself is a very specific legal doctrine, born of Commerce Clause statutory authority with its own doctrinal purpose to protect consumers to make sure they are not being misled in their purchasing decisions and getting something different than what they expected to buy, and thus possibly harmed by it. If, for instance, a consumer buys toothpaste, they need a way to know that it is really the toothpaste they expected to buy and not something counterfeit, especially if it may be something dangerous being passed off as toothpaste. Trademark law exists to help eliminate source confusion within the market.
But “piracy,” as it is generally discussed, is something entirely different, and generally rooted in copyright, which is an entirely separate law, rooted in an entirely separate constitutional authority, and with entirely separate goals and purpose than trademark law. While the latter functions as a consumer protection law, the purpose of copyright is to promote the spread of knowledge. While both doctrines are intended to serve the public, the benefits each is supposed to deliver are different, and so are the concerns each monopoly raises.
The only real commonality between the two legal doctrines of copyright and trademark is that they are monopolies we let law hand out. But every monopoly we grant comes with a cost, because monopolies are inherently harmful to a market economy. If we are going to say that it is nonetheless, on balance, worth it to have these monopolies, then we need to make sure they are adequately limited and tuned to the very specific problems they are intended to solve, and affect no more, lest they start to cause their own harms. Especially when the alleged problems are so fundamentally different. For instance, unlike with what sometimes happens in counterfeiting no one is going to get hurt by accessing, say, an unauthorized stream, largely because there is nothing fake about the content people are accessing – indeed, the objection is that people are accessing the real thing.
Conflating the two loses all the nuance between the different types, as well as any nuance we should consider within each doctrine. Worse, it tends to supplant a credible evidence-based inquiry – one with precisely-defined terms that adequately tests every assumption underpinning it – with one that, from the outset, tends to presume a benefit to having stronger monopolies, while simultaneously ignoring their dangers. But when doling out monopoly power we need to be more careful than this sort of glib approach will allow, lest we do harm to the public who is supposed to be benefited from the exercise. Ultimately, the policy question of whether and under what circumstances it is ok for consumers to have potentially unauthorized access to real products is a fundamentally different policy question than whether and under what circumstances it is ok for consumers to have potentially unauthorized access to fake ones (for instance, should we care as much about counterfeit handbags as we do about counterfeit toothpaste, and what are the consequences if we do), and conflating the two will not lead to coherent answers consistent with the overall reasons for why we have either law.
Meanwhile, one of the other apples and oranges problems that arises from blending the two legal doctrines together in one administrative inquiry is that copyright and trademark law are administered by different agencies. Issues arise when the two agencies overlap and start to play in the same doctrinal space. Some of these complications are practical, because having multiple agencies trying to shape the same policy has the effect of doubling the workload for any member of the public wanting to influence how this policy gets shaped. And that’s a problem for everyone, including rightsholders.
It also creates a too-many-cooks problem when more than one tries to affect policy for the same domain, which can easily be at cross-purposes, especially when either speaks to a domain outside their agency focus. It is not necessary to endorse everything the Copyright Office does to observe that one would expect it to be more qualified to speak on copyright than, say, trademark or patent, where it might have something to say, but not as much. Conversely, the name US Patent and Trademark Office would seem to be a hint that its expertise lay in trademark and patent law, rather than copyright, where the Copyright Office is likely to be a more expert authority. When either agency strays from its lane it creates the danger that whatever policy it does recommend will be at best inapt, if not altogether conflicting or even harmful, which the other agency will now have to deal with the effects of.
Which leads to the second point, that one recurrent issue in all of these policy conversations surrounding any of these legal doctrines is how many unchallenged assumptions keep getting treated like incontrovertible facts, when they are not. Even some of the complaints raised during panels earlier in the day addressing pure trademark issues often tended to presume problems where there might not even be any, and throughout the day many panelists were heard calling to prohibit things that were in fact entirely legal, for good reason, like fair use and legitimate competition. Many putative rightsholder complaints also tended to presume impingements on rights that were anything but certain, including in the piracy context where it was not at all clear whether the allegedly illicit streams were even implicating a valid copyright in the underlying material. (This is a particular issue for sports streams, where it is difficult to claim that there’s enough original authorship in the streamed match without simultaneously admitting the match is fixed). Before we start creating penalties and sanctions that strengthen any right’s monopoly power, we need to make sure those who would be favored by these changes are even entitled to a remedy.
We also need to make sure that there is actually something to remediate. Throughout the day, in both the copyright and trademark context, we heard rightsholders complain about a loss of exclusivity in whatever right they claimed to have. Loss of exclusivity does not necessarily translate to economic loss, particularly if the competing access helps stimulate markets for ancillary sources of income for a rightsholder. It also is a big “if” whether each unauthorized consumer purchase or other access would necessarily equate to the loss of a paid-for licensed one. Furthermore, even to the extent there might be losses, it isn’t necessarily clear what the cause of the loss is, because if counterfeiting or piracy is existing, there may be reasons why consumers are looking to channels other than the authorized ones, and those reasons may stem from choices made by the rightsholders in the way they foster, or discourage, legitimate access to what they offer.
In addition, neither copyright nor trademark were ever intended to be exhaustive monopolies; the public was still supposed to retain certain ability to use or access trademarked or copyrighted material, either because the First Amendment required it or because the goals and purpose of the legal doctrine required the public to retain it in furtherance of those goals. Many of the complaints raised by rightsholders throughout the day were laments that things such as due process inhibited their monopoly power and demands to have an entirely different legal regime that no longer fulfilled the purpose that currently imposed limits on their power. It is important to recognize that’s what many of these complaints were and not just take the claims of harm at face value.
Especially because the third point is that the public interest needs to be better considered in addressing any of these policy areas, whether copyright or trademark or any other doctrine that sometimes gets thrown into the “intellectual property” bucket (like rights of publicity, which was also referenced at various points throughout the day). And at this roundtable we were largely missing voices who could speak for it.
Which is a problem for several reasons, including that discussions like these tend to force a false either-or binary, dividing interests between suppliers and consumers, when the truth is that the public itself is a population of actual and potential suppliers as much as it is consumers. The same people are often both, especially in the copyright context where members of the public both create and consume expression and not all creators necessarily want the increased monopolistic power that many incumbent rightsholders keep asking for, given how much it can deter their own market participation by censoring their expression if not also the ability to monetize it.
When hearings like these are too heavily weighted in favor of those who want greater ability to say no to the public interacting with their claimed material than the members of the public who need to interact with it, it tends to lead to the loss of due process rights, censorship, and the public benefits these laws were supposed to impart. In the case of copyright, for example, from as far back as the Statute of Anne, which was a “statute for learning,” and enshrined in the Progress Clause of the Constitution is the idea that we grant a limited monopoly for limited times so that the public can get the benefit of works created by making it possible for those works to be created. When we instead overly focus on creator entitlements and not the public’s interest in why we bother to create these monopolist entitlements, we’re not acting consistently with the goals and purpose of the law and instead causing harms to the intended beneficiaries of the law, which was always intended to be the public.