I think the modern plight of IP is fascinating from a cultural development standpoint. Clearly it was believed when the laws were written that they’d be enforceable. Indeed they were, first at the local community level (think of old Wild West towns with their fool’s gold and cure-alls) and then on a larger scale, during the course of industrial development, when companies like Coke could extend their brand dominion the world over.
Now, owing much to the advancement of self-publishing tools and, of course, the Internet, it’s no longer conceivable to prevent every instance of misuse — in fact, as the RIAA and MPAA may someday learn, protecting your mark at the expense of your those who you want to respect your mark is a losing, and extremely costly, battle.
But for all the railing I do against modern IP, I do understand the purpose it serves, even if I don’t agree with the mechanisms or costs of enforcement. And, the cost of not finding a citizen-driven plan of enforcement could be exceptionally disruptive to the economy and to the establishment of new businesses.
While disruption on the one hand can be good as it destableizes the incumbants and shakes old soil from the roots of the system, it can also lead to fear and paralysis, as uncertainty takes over. If you consider that registering your trademark used to be simply a matter of course, and that enforcement against infringers would lead to a nice monetary settlement, that is no longer the standard. Rather, as has been said recently, to own a mark worthy of enforcement will surely lead to a death from a thousand cuts the moment you decide to try to wrest what you think is yours from the millions of fingers of the world at large.
And this is where the conflict lies: in these new economic circumstances, individuals and small businesses cannot afford the cost, in terms of their attention or their dollars, in pursuing infringement, yet, all the same, there is value in the credibility and reputation of the mark they built, which should be theirs to enjoy the benefits thereof. On the flipside, there is the citizen-consumer, who may wish to publish or publicize their love of said brand, but may do so in an otherwise “infringing” way (see Firefox). Now, at the same time, there is a perceived need to protect the hapless consumer from his or herself by way of preventing false actors from imitating or acting in the stead of someone else (think of the Tylenol scare). This is the flipside to trademark in that it attempts to provision economic rewards for playing nice, doing good and putting the onus of protecting your name on the individual who’s name is in question. Therefore if someone does wrong under the guise of your brand, it’s up to you to stop the infringement since it’s your livelihood at stake.
So originally that was a good plan, but as I’ve been discussing, that enforcement now comes at the risk of your business!
So, what are we to do?
Well, a number of us, including Citizen Agency, will file for and receive trademarks. Another portion of us will try to enforce the mark through various means — those who are offline will have the smallest exposure and will probably be able to enforce their mark against a smaller market. Those who go online, which seems to be as necessary as being in the phone book these days, will find the legal environment frustrating, confusing and to start, disempowering.
The way forward then, or at least a choice that should be considered available, is the one we’ve made for BarCamp and Microformats, and for which I advocated for with Mozilla, Creative Commons and OpenID. The choice is to embrace community enforcement — not in preventing bad actors from behaving badly, but in creating more positive examples of good, representative behavior; of creating good documentation and information flows so you know how to judge a phish (notice I didn’t say ‘rat’); an understanding with the community that the centralized body doesn’t have the resources to police its name and is therefore willing to rely on its community in a non-binding way (that is, protection should be afforded so long as the company is doing good things for the community, earning enforcement and their trust) and that in return, the company will “embrace the chaos” and turn over a good deal of “ownership” of its name to the collective.
Now, this won’t work for everyone and indeed causes confusion, dilusion of consistency and an ocassionally unrepresentive act, but on the whole, the notion of a community mark might at least form the foundation for thinking on a non-legal code of conduct-slash-ethics ready and reflective of the 21st century.
Factory Joe 
“individuals and small businesses cannot afford the cost, in terms of their attention or their dollars, in pursuing infringement”
Why not? We’ve already got a decent community of volunteers who are identifying new uses of our mark that need to be licensed or disallowed. They see it as in their best interests, as well as the interests of the Mozilla Foundation (the public benefit charitable organization that owns the marks) that the Firefox name and logo continue to represent the free, open source, shared resource that is Firefox.
A great example is the group of volunteers in our community who are reporting bad actors who abuse our marks to trick people into believing that they are Mozilla and that Firefox is available through them for the low low price of just $39.95 per month.
It might be costly for the employees at Mozilla to scour the web for this kind of infringing use of Mozilla’s marks, but it actuallyanother area where community members, even and especially the less or non-technical ones, can participate.
The same thing is happening on the other side of the coin too. Community members are recognizing and reporting to us when new good actors start using Mozilla marks. With very little effort, Mozilla can contact those good actors and get a license agreement in place.
If you’ve got community support, combined with a few simple tools (Google’s search engine, a “reporting” mechanism, a few basic letter templates, etc.) I don’t see where doing the necessary work to protect a trademark is really that high cost.
Is a community, in your view, not capable of assisting the individual or small business in protecting its assets? Is our experience unreproducible — that is to say, is that small segment of the Mozilla community unique in its ability to help protect the Firefox marks?
– A
Hmm, perhaps I wasn’t clear in the point I was making. I do think that Mozilla’s situation is the most salient to me, but in terms of it being reproducible or not, I think only time will tell.
I agree that finding a balance between total centralized ownership (Mozilla Foundation) and community enforcement (SFX, etc) is the ideal model. I think the examples you offer actually underscore the point that I’m making: Mozilla wouldn’t be able to do it themselves, so instead they have an army of folks out there scouring the web and whenever they find something — good or bad — they report it of their own volition. Imagine hiring all those folks as “lawyers” at $500+/hour. There’s no way small businesses could afford that! Hell, Mozilla couldn’t even afford that.
Anyway, I think the most interesting component of what you said is whether this is repeatable — whether the community enforcement I advocate for is feasible for small, lesser known, less open source companies… to be honest, I’m not sure. Firefox has been very lucky so far — and I’m not sure that your success is generalizable. What happens when you throw yourself to community enforcement but don’t have the acolytic following that you do? What happens when there are more infringements than you know what to do about — and going after them, personally, or even with a small staff, would be so distracting from your core business that you wouldn’t be able to make a living anymore?
This is a very difficult question and one that I hope we spend more time thinking about both from a citizen-consumer perspective, from a small business perspective and from one that should be promoting the development and trade of intellectual capital.