2 comments

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  Mark Blafkin

  1 year ago

  I think it is easy to agree with Lessig et al on this, but I am puzzled by Kozinski's suggestion that:
  
  

  for instance, when you say someone has a Barbie personality, it describes something without having to go into a thousand details. But Mattel, the inventor of Barbie, hates it. People who own those trademarks and copyrights want to control the way people communicate, and they have the ear of Congress right now.

  
  
  I'm not a lawyer nor a judge, but my understanding is that company's MUST complain and take legal action if people start using their trademarked brands as verbs or as a non-proper noun. If they don't, they can lose their trademark on the term and all of a sudden Hasbro can start shipping "Barbie" dolls. It often seems silly or mean-spirited when Google sends it lawyers to stop "Google" from being used as a verb in a dictionary, but it is side effect of trademark law - not an attempt to "control the way people communicate."
  If there are any trademark attorneys in the audience, please let me know if my understanding is correct.
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• 

  Jim Harper

  1 year ago

  I'm a judge, Mark, so I'll handle this. (Not really.)
  
  Trademark law is a law to control the way people communicate. Specifically, it's intended to prevent people from using certain words and phrases ("trademarks") to defraud others about (or even misconstrue) the source or origin of goods and services. (Same goes for distinctive designs, trade dress, etc.)
  
  In a way, Kozinski is stating a tautology. Copyrights and trademarks are all about controlling communication and information. He must be lamenting the overuse of these laws, such as when a company tries to prevent competitors from using its name in advertisements (or to direct the placement of advertisements, as on Google), and when AP tries to restrict quotation from their stories beyond what copyright's fair use doctrine allows them.
  
  (n.b. In the text you quoted, he's collapsing copyright and trademark a little bit casually. "Barbie" is a trademark of Mattel, which almost certainly does not hold a copyright in that term.)
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