Intellectual Property Directions

In “Why Can’t the English [teach their children how to speak]?” Henry Higgins observes that the French don’t care what they say “as long as they pronounce it properly”. So too, when it comes to copyrights it seems it doesn’t matter if the content has any value… as long as you use your own words. No matter that the works in question “exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid — hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”, they still deserve copyright protection.

In a recent court case that might best be called a marketing Pyrrhic victory, the consultants at Situation Management Systems overturned their earlier loss in a copyright battle to protect their “aggressively vapid” but copyrighted training manuals. In a nutshell, two former employees set up a competing consulting business for which they produced 3 training manuals, running to hundreds of pages of copy, in a matter of weeks. Not surprisingly the manuals bore certain similarities to the SMS’s manuals - after all, these employees had worked on the originals.

In the original decision, the judge apparently misapplied two key infringement considerations when he dismissed SMS’s suit. But in doing so he lambasted the quality of the material in the manuals, pointing out what many engineers I know already feel about consultants - that consultants often provide cookie cutter solutions that include nothing actionable.

The Appeals Court clarified the tests for what material is subject to copyrighting and what constitutes infringement. First, the material you want to copyright must be original to you. But original in this context only means that you did not copy the tangible expression of the material from other sources. You are perfectly free to see a photograph of Hancock tower from across the Charles River and hike over to Cambridge to capture a similar image. Artistically unoriginal, copyrightably original.

Second, while a process or idea is NOT copyrightable, the expression of the idea or process is. In the present case, for example, the process (or steps) that a individual can take to gain consensus for a new idea within an organization is not, per se, subject to copyright, but the way you describe those steps, the words you use, certainly are. The “business methods patent” controversy at least in part comes about because of this copyright limitation - but let’s not go there now.

Because the judge in the original case erroneously threw out most of SMS’s material as not subject to copyright before ruling on infringement, the Appeals Court has overturned his non-infringement decision and sent the case back down.

SMS is now in the situation of going back to court to say, like Henry Higgins’s French, “our manuals may be filled with platitudes… but the expression of those platitudes is ours alone.” Even if they win an infringement ruling this time around I don’t think any of their marketing materials are going to point to this victory.

Duncan Bucknell recently raised the question in the title of this post - could someone buy up trademarks or copyrights and engage in patent troll-like behavior? And since the answer is clearly “yes”, why hasn’t it happened? Why don’t we have trademark or copyright trolls?

Duncan suggested that the value of a trademark is supported by the goods or services it is associated with, so “you can’t just acquire a trademark and expect it to maintain value without also continuing to supply the goods or services”. No goods or services = no trademark value to claim damages against.

Duncan believes copyrights are more likely to work (for a troll) as they don’t have the problems that trademarks do and that the online environment and software seem to be situations where copyright infringement might be sufficiently widespread to generate the returns.

My take on it is a little different. I think both trademarks and copyrights are significantly less fertile ground for trolls than patents. If you are unintentionally infringing a patent you may be out of business for quite a while trying to do a design-around if you don’t want to pony up the license fee. And the cost of defending yourself in court is prohibitive unless you’re really, really sure you’re not infringing. So the troll has the upper hand.

However, while you certainly might be accidentally infringing a  trademark, defending yourself in court is not as expensive as a patent suit and changing a trademark is unlikely to kill your business (many companies do it on their own; Esso –> Exxon). Additionally, registered trademarks are not hidden the way patents can be and it’s really unlikely that multiple companies will be infringing the same trademark, so the troll doesn’t have many targets to hit or much leverage with the one possible infringer.

There’s really no way for you to unintentionally use a substantial portion of copyrighted material (sure, the 1 million monkeys might eventually type Hamlet, but I’m not counting on it!), so anyone coming after you is not a troll, at least in my book. The enforcement is only a surprise to you because you assumed you’d get away with the infringement and that makes you, not the enforcer, the bad guy.