Anthony writes:
What are you saying here? Do you think free speech is promoted by telling people "no" when they ask if they can use your trademark, but then not doing anything when someone uses it without asking?
I'm trying to say that striking a humane balance between the requirements of trademark maintenance and the interests of freedom of speech is something I try to do, pretty much on a daily basis. If you have experience with trademark lawyers in other contexts, you'll find that they're generally far more aggressive in policing trademarks than I am. One of my tasks is to preserve and maintain the value of our trademarks, but I try to inform that task with as much tolerance and support for freedom of speech as possible.
As for those who use our trademarks without asking, I try to focus on the larger-scale, commercial infringers. Mostly this is a function of allocating resources -- we don't have infinite time and money to police trademarks, so we try to pick the worst offenders when we send cease-and-desist letters (with the possible followup of formal legal action), and this means we necessarily are going to let more minor infringers slide. It turns out that recognizing and working within economic constraints is congruent with a more tolerant policy regarding unlicensed use, which I think is a reasonably felicitous result. (Often I proceed more informally against infringers, and that frequently is enough to stop the infringement.)
Is that something they taught you in law school, or did you learn it on your own?
I'm not sure I understand what additional information you are attempting to elicit with this question. Are you genuinely curious about law school or about my experience? If so, I'm ready to answer private inquiries, but the question itself -- taken at face value -- doesn't seem germane to the subject matter of this public mailing list.
I didn't make any points, I asked questions. If you can think of a different way to phrase the questions while still obtaining the answers to them, please feel free to rephrase them.
Perhaps I'm missing something, but it seems to me that the law-school versus on-your-own question was designed to be disparaging.
And my third question, which I suppose was the one considered "disparaging", was somewhat pre-emptive. Mike has a tendency to answer questions of this sort with an appeal to his status as a famous lawyer, and therefore as someone whose statements are (in his mind) beyond question by us little people.
Good lord, this is quite a misreading of how I intended to be interpreted. I was trying to suggest (as I elaborate above) that my experience as a free-speech lawyer informs my work on our trademark portfolio. I hardly think "famous" has much to do with it. I don't think of you as "little people" -- I don't even know what you mean by that -- but if I thought my statements were "beyond question," then I wouldn't bother to respond to your messages.
I think you have to work very hard, mentally, to insert into my one sentence about "a free-speech lawyer" all this stuff like "famous" or "beyond question" or "little people." Those words may inhabit your perception of me and my attitude, and I apologize if something I've said elsewhere has given you the impression that I think that way, but they're not there in the actual words I used.
I can't pretend to be inexperienced in dealing with either free-speech or trademark issues, but I don't expect you or anyone to defer to me simply because I'm purportedly an authority.
So I wanted to clarify in advance which parts of his statement he thought could be understood (and not just accepted without question) by those of us who decided not to go to law school.
I hardly ever condition my responses to this list on whether the person I'm responding to has gone to law school. And, seriously, do you suppose that after decades online I could possibly every expect *anything I say in any context* to be "just accepted without question"? You must think I'm as dumb as I look.
It seems to me to be self-evident that telling people that they can't use your trademark and not policing the use of your trademark are contradictory, and apparently this seems self-evident to others on this mailing list as well (hence the accusations that I'm trying to make a point).
We're policing the use of the trademark. Our efforts on this front are mostly invisible to most of you, and that is as it should be. And, as I have pointed out, we necessarily can't police all infringing uses, so (informed by the desire to be as tolerant as possible of non- harmful unlicensed uses), we try to go after the worst offenders.
Your reasoning suggests (by analogy) that prosecutors who don't prosecute every single offense, or policemen who don't arrest everyone who might have committed offense, are somehow "contradictory" to upholding the law. But that's not how the legal system works. We all have legal rights and responsibilities, but, *just as important*, we can choose where and when we will invoke them. That's not "contradictory" -- that's at the very least prudence, and, one hopes in the long run, it may even approach humanity and wisdom.
Yes, there are also possible negative outcomes, but we're supposed to assume good faith, aren't we?
The question about law school, plus the stuff about "just accepted without question" and "little people," did not strike me as informed by any assumption of good faith. I hope you will find it in your heart to forgive me if I misread the good-faith assumption intended by your "little people" comment.
--Mike
On Tue, Nov 25, 2008 at 1:27 PM, Mike Godwin mgodwin@wikimedia.org wrote:
I'm trying to say that striking a humane balance between the requirements of trademark maintenance and the interests of freedom of speech is something I try to do, pretty much on a daily basis.
How are the two in conflict?
I think you have to work very hard, mentally, to insert into my one
sentence about "a free-speech lawyer" all this stuff like "famous" or "beyond question" or "little people." Those words may inhabit your perception of me and my attitude, and I apologize if something I've said elsewhere has given you the impression that I think that way, but they're not there in the actual words I used.
This perception comes not from this particular thread, but from my reading of other threads which you've participated in (including at least one that I was involved in). It's not something which I care to argue with you about, and certainly not on this mailing list, although I will point out that Thomas stated that "I've noticed that tendency as well", just in case you're truly unaware that some people perceive this about you.
Anthony
2008/11/25 Mike Godwin mgodwin@wikimedia.org:
Your reasoning suggests (by analogy) that prosecutors who don't prosecute every single offense, or policemen who don't arrest everyone who might have committed offense, are somehow "contradictory" to upholding the law. But that's not how the legal system works. We all have legal rights and responsibilities, but, *just as important*, we can choose where and when we will invoke them. That's not "contradictory" -- that's at the very least prudence, and, one hopes in the long run, it may even approach humanity and wisdom.
To add to what Mike says here: If someone applies for a right to use our trademark, then yes, we have to exercise due diligence and make sure it represents a product or service that we want to stand for with our name. If they don't apply and just use the mark, we may or may not be willing or able to enforce it, but it constitutes an unauthorized use of our mark and we can fully disclaim responsibility for the product or service it is used to represent. Take the recent example of the SOS Children's DVD: We authorized use of the Wikipedia puzzle globe and name for the product based on our pre-existing relationship with them, and then people pointed fingers at us when they felt that the organization wasn't interpreting the GFDL correctly or fairly. Something that's made in your name is associated with you, whether you like it or now.
Personally, I'm not a huge friend of IP law, but I've always felt that the fundamental intentions of trademark law are benign and reasonable. I think that the free culture movement has to carefully think about middle ground approaches that make sense to meet the needs trademark law tries to address, such as: ensuring that people understand the difference between a product made or endorsed by us, and a product made by someone else without our involvement. This is where approaches such as secondary marks come in -- note the use of the puzzle piece in our fundraiser buttons.
On Tue, Nov 25, 2008 at 1:42 PM, Erik Moeller erik@wikimedia.org wrote:
Personally, I'm not a huge friend of IP law,
Specifically, you state on your meta user page that you are "strongly opposed to all types of 'intellectual property'."
but I've always felt that
the fundamental intentions of trademark law are benign and reasonable.
I can't imagine you have that feeling about [[trademark dilution]] law, though. I don't think people are going to cry "fraud" when they find out their coffee mug isn't really the coffee mug that anyone can edit.
2008/11/25 Anthony wikimail@inbox.org:
I can't imagine you have that feeling about [[trademark dilution]] law, though. I don't think people are going to cry "fraud" when they find out their coffee mug isn't really the coffee mug that anyone can edit.
What I said is that its fundamental _intentions_ are benign and reasonable, not that even the implementation in current legal code is, let alone some interpretations thereof. I do believe the free culture movement needs to develop a code of best practices for trademark use and enforcement, but we shouldn't start with a reflexive assumption that it's evil.
On Tue, Nov 25, 2008 at 2:17 PM, Erik Moeller erik@wikimedia.org wrote:
2008/11/25 Anthony wikimail@inbox.org:
I can't imagine you have that feeling about [[trademark dilution]] law, though. I don't think people are going to cry "fraud" when they find out their coffee mug isn't really the coffee mug that anyone can edit.
What I said is that its fundamental _intentions_ are benign and reasonable, not that even the implementation in current legal code is, let alone some interpretations thereof.
The fundamental intention of [[trademark dilution]] law is to create a property right.
2008/11/25 Anthony wikimail@inbox.org:
The fundamental intention of [[trademark dilution]] law is to create a property right.
Questionable. In any case proper enforcement of trademark law really only comes in at the nuisance level.
Things get more problematical due to people using trademark to make threatening legal noises to limit free speech (although that may not be the intention it is the effect). A lot of the time this is accidental due to people being confused over the difference between copyright and trademark or the limits of trademark.
Heh a recent mildly amusing case. Ryan air wrote to private eye to object to the use of their trademark in a parody of budget airline routes and prices. Private Eye responded by referring to the Arkell vs. Pressdram incident (not that I would suggest that this is something the foundation should follow).
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