Technovia

Factoryjoe on trademarks

FactoryJoe posts onWhy BarCamp is a Community Mark at FactoryCity, and in the process makes a specious comment on trademark law. Responding to my claim that “trademark laws are designed to protect consumers, not ensure a revenue stream for companies”, Joe claims:

This is the correct interpretation of trademark law as it was intended in 1876. Yeah, that’s right, 130 years ago... Intellectual property protections at one time served to protect the consumer, the little guy, the entrepreneur. That was back when the feedback loop that corrected fraudulent activities was slow, tedious and often ended with a dual in the middle of main street. With patents being filed en masse by folks like Texas Instruments (who will likely never use or enforce the majority of their portfolio), with copyright being used to stifle creativity and expression and trademarks being applied to community-protected language and ideas, it’s clear that the original uses and purposes of these legal concepts are not only under scrutiny, but may have finally become the last ditch effort large power-mongering corporations with major budgets to go after the smaller, more nimble independents that they were designed to protect.

While I have some sympathy with Joe on both copyright and patent law, I disagree with him on trademarks - and I don't see a coherent argument in this post. He claims that my description of trademark law was accurate 130 years ago, and then supports this claim with examples about patents and copyright. That's basically constructing a straw man, which is a rhetorical trick that's as old as the hills and that generally indicates a specious argument. In other words, Joe is wrong.

So I'll ask two questions of Joe:

1. Can anyone give an example where trademark law - NOT patents or copyright - has been used to stifle innovation or damage the interests of consumers (and no, the O'Reilly spat can't be used - the facts of the case aren't exactly clear, especially if you read Tim O'Reilly's response).

2. If trademark law was removed from the statute books tomorrow, what would be the consequences?

Tim O'Reilly responds

Web 2.0 Service Mark Controversy (Tim responding this time):

The flap about the Web 2.0 Conference trademark has shaken my faith in the collective intelligence of the blogosphere. Of all the hundreds of people who commented on this issue, only a few touched base to do a bit of fact checking. The New York Times, by contrast, was all over doing due-diligence. They talked to everyone they could get their hands on before publishing their story.

Quite rightly, Tim posts something balanced, reasonable, and chiding in its tone to the bloggers who, in his absence, decided a witch-hunt was in order. What's more, he takes IT@Cork organiser Tom Raferty to task for whipping up the storm of hysteria, having had an email from Tim prior to the cease and desist from CMP (NOT, note, from O'Reilly). As Tim puts it:

Given that Tom and I had previously had a conversation where I wished him the best of luck with his conference, while the lawyer's letter came from CMP, I would have thought that he would have wondered whether the right hand knew what the left hand was doing before launching and then encouraging the torrent of net vitriol that's come our way. He did call CMP to talk to the lawyer who wrote the letter, but he never tried to contact me. While he acknowledges that the letter was from CMP, he used O'Reilly's name in the headline and repeatedly throughout the piece for maximum net impact. So while we owe Tom an apology for heavy-handed tactics, I think Tom owes us an apology for the way he responded.

This vitriol, incidentally, included a posting implying O'Reilly was some sort of child molester!

The whole episode has reinforced the idea that I've had for some time that the so-called blogosphere is nothing but an echo chamber of lies. The wisdom of crowds is a sham: anyone who's studied the actual behaviour of crowds understands that you don't get wisdom from large crowds of people talking (hint: the phrase “baying mob” came into common currency for a reason).

MacDailyNews in “sense of humour failure” shock

MacDailyNews issues a point by point rebuttal of a Paul Thurrot piece on Apple copying Microsoft. Or rather, a little news bite story that mentions Apple engineers at WinHEC and, as a humorous aside, says they were there to copy Microsoft. Digg – which of late is turning into “Fanboi Vs Fanboi” rather than being a decen read – has a field day.

For Radio 4 Mac lovers

if you use iCal (or another programme that can subscribe to iCal-format files, like Microsoft Works) and like Radio 4, then the Radio 4 iCalShare is for you. It includes complete schedules for upcoming Radio 4 programme - a little messy when viewed in iCal, but still great and useful. And, I think, it uses the XML data that the BBC provides for free for non-commercial use.

Boing Boing: Can anyone own “Web 2.0?”

At last, a sane response to the whole “Web 2.0” controversy, in Boing Boing: Can anyone own “Web 2.0?”. If only a few more people on the web had engaged their brains before doing things like demanding that people condemn their friends publicly, there would have been a little less mass hysteria.

Brighton Bus Times

In Dashboard Widget form! Download from Brighton Bus Times.

Apple loses blogging case

27B Stroke 6:

The Sixth District Court of Appeals on Friday roundly rejected (.pdf) Apple's argument that the bloggers weren't acting as journalists when they posted internal document about future Apple products. “We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis(m).' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here,” the court wrote.

Apple's claim that subpoenaing the offending web sites - O'Grady's Powerpage and Apple Insider - was the only way it could find out how leaked its secrets was also thrown out. Even better was this:

Apple alludes repeatedly to the notion that the publication of trade secrets cannot be found to serve the public interest because of the policy embodied in trade secret law itself, which presupposes that trade secrets possess social utility justifying special protections against wrongful disclosure. This is, of course, a false dichotomy. It is true that trade secrets law reflects a judgment that providing legal protections for commercial secrets may provide a net public benefit. But the Legislature’s general recognition of a property-like right in such information cannot blind courts to the more fundamental judgment, embodied in the state and federal guarantees of expressional freedom, that free and open disclosure of ideas and information serves the public good.

This is a significant victory against the idea that trade secret laws give companies carte blanche to subpoena journalists and others rather than conduct proper internal investigations into how information is leaked. It also supports the important principle that trade secrets laws don't overrule the idea that “free and open disclosure of ideas” is, if anything, more important to the public good.

For the techno-hippies, mob rules

It's been a quiet day at work, which means that I've been able to follow the growing controversy over CMP Media and O'Reilly's apparent cease and desist letter sent to an Irish non-profit over its use of “Web 2.0” in the name of a conference. I don't think I've ever seen a better example of internet hysteria, mob “justice”, and general stupidity for a while.

First of all, the facts. O'Reilly and CMP have been organising the Web 2.0 Conference for several years, and, in fact, first came up with the term when brainstorming the idea for the conference. As is standard practice, O'Reilly and CMP applied for a service mark for the name to protect its business. Just as IDG owns the service mark “Macworld Expo”, so CMP owns “Web 2.0 Conference”.

A non-profit body in Ireland called IT@Cork is organising a conference about the same themes, and called it “Web 2.0 Half Day Conference”. Note the similarity. Unsurprising to anyone familiar with trademark law, IT@Cork then got a simple cease and desist letter from CMP's lawyers.

Enter “Outraged of the Internet”. The normally sensible Thomas Hawk claims “until Tim O'Reilly apologizes for this asinine move I'm going to start using the term Web 2.1 whenever I mean Web 2.0”. Marc Canter claims he “takes shit like this personally”. And on. And on.

Of course, the generally attitude of all these outraged netizens is that O'Reilly has behaved badly. A lot of them seem to think that O'Reilly is trying to own the phrase “Web 2.0”, which is simply nonsense. O'Reilly/CMP have long organised the Web 2.0 Conference. Someone else decided to make a conference and call it “Web 2.0 Half Day Conference”. That's exactly the same as me deciding to organise a “Macworld Half Day Conference” and being surprised when IDG came after me.

You can call a web site a Web 2.0 site. I could launch a magazine called “Web 2.0”. Someone could print “Web 2.0 sucks ass” on a bunch of t shirts - and none of this would infringe on any service mark of O'Reilly/CMP's. What you can't do, and I can't do, and IT@Cork should have known it couldn't do, is create a conference called “Web 2.0 Conference”. It's nothing to do with controlling the term, and everything to do with protecting the reputation of a conference than O'Reilly and CMP have worked hard to establish.

But, for the techno-hippies – some of whom have made fortunes from intellectual property – what O'Reilly has done is shocking, an outrage. So they call in the blogging lynch mob, many of whom know nothing about IP law and all of whom are prepared to be whipped up into a fervour by the A-List as required.

Wisdom of crowds? More like Mob Rules.

This might actually get me running

Actually, that's probably pushing it a little far, but the announcement that Apple partners with Nike on a set of really cool extensions for iPod is certainly pretty amazing. Michael Gartenberg probably puts it best: this is confirmation that the iPod is a platform.

The death of Wikipedia

Nicholas Carr on The death of Wikipedia:

Wikipedia, the encyclopedia that “anyone can edit,” was a nice experiment in the “democratization” of publishing, but it didn't quite work out. Wikipedia is dead. It died the way the pure products of idealism always do, slowly and quietly and largely in secret, through the corrosive process of compromise.

The end came last Friday. That's when Wikipedia's founder, Jimmy Wales, proposed “that we eliminate the requirement that semi-protected articles have to announce themselves as such to the general public.” The “general public,” you see, is now an entity separate and distinct from those who actually control the creation of Wikipedia. As Vaughan-Nichols says, “And the difference between Wikipedia and a conventionally edited publication is what exactly?”