Re: Responsibility, Copyright and New World Order

I've been entertained, at the least, by this thread. The arguments have gone off in a variety of odd directions, all of which bear some consideration (if not always responsive to the initial postings).

However, I'm a bit disturbed by the logical flaws in much of the argumentation. While an individual case may be susceptible to two-valued logic -- the plaintiff wins, or the plaintiff loses -- larger issues, such as whether the current copyright system can be improved, are not.

Example (far from isolated):

• Ancient through medieval Western society used patronage to support "the useful arts" and literature
• Ancient through medieval Western society used slave labor and other "inequitable" economic means for the large-scale support of the society
• The current copyright and economic systems reject patronage and those inequitable means (a bald assertion that is at least open to argument)
• Therefore, since the current copyright and economic systems are "better" than those of ancient through medieval Western society, we don't need to consider more than tinkering with copyright

This last step is a false dichotomy. By that logic, we did not need to do anything about "separate but equal," because it was "better" than the outright slavery which preceded it.

The flip side of this is the stagnation of innovation, actual practice, and personal responsibility based upon overbroad application of rules of law derived from cases that arose in entirely different ethical, procedural, intellectual, economic, or whatever contexts. This is how we end up with the problem of Joe McDonald's hamburger stand -- the legal conclusion of actual confusion by customers is based upon assumptions that may have little validity in this context. Instead of a "law of diminishing returns" or a "bell curve," trademark/trade dress law appears to be based on linearity; that is, old cases involving semifamous marks or willful misuse of marks have been extended to cultural icons and the accounting fiction of "goodwill" without really examining the factual basis for the extension. Given the aggressive advertising campaigns of McDonald's Corporation, how could anyone in the Western world possibly confuse Joe McDonald's hamburger stand with a franchise of the corporation unless Joe _willfully_ attempted to create confusion by recreating the McDonald's "experience"? It seems to me that, beyond a certain point, a mark is _so_ famous that there is no objective possibility of confusion or dilution.

The irony in all of this is that, as a practical matter, we can't do more than incremental reforms in intellectual property law. Between "settled expectations," "international harmonization," "unnatural persons," contractual opt-outs, trial by warchest, and the cooptation of legislation by vested interests, there doesn't seem much real basis to believe that we can change much more than the numbers of angels dancing on page x of F.3d (if, of course, West allows us the privilege of citing to page x).

C.E. Petit
<cepetit[_at_]usa.net> Received on Sun Aug 15 1999 - 16:05:58 GMT