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There are no lawyers in this thread, huh? My wife is a corporate lawyer, so ive seen a little bit of these shenanigans from her perspective. And it pretty much

There are no lawyers in this thread, huh? My wife is a corporate lawyer, so ive seen a little bit of these shenanigans from her perspective. And it pretty much boils down to this: there are certain risks lawyers can take and keep their jobs, and risks they will lose their jobs over. Like everyone else, they do not enjoy unemployment. Saying “this business idea is fine, go for it” and it succeeds? They get no credit. Saying “I don’t think this is legal,” ugh, lawyers are always too cautious, but its par for the course sonit doesn’t reflect badly on them. Saying “go for it” and get nailed in an enforcement action? Unemployed and unemployable. Likewise, when it comes to protecting IP, as required by law. They can’t -not- do it: it’s their job, explicitly, to protect the IP. Deciding “we will not pursue the correct course of legal action to (legally) protect our clients rights to protect their branding” isn’t in their purview, that belongs to the execs (who Are the ones that make those decisions). Any lawyer that decided that on their own? They’d better hope it -never- has -any- consequences, because... unemployed and unemployable. It’s easy to blame lawyers for protecting their clients rights, but all they do is navigate the system. They don’t make the system[1], and they don’t pull the trigger [1] there is a meme that lawyers build the legal system, as opposed to, you know, legislators, lobbyists, special interest groups, etc. I find it poorly related to reality.

CamTin 9y ago
Legislators and lobbyists are mainly lawyers
- arkades 9y ago
  Legislators are mostly lawyers, by tradition. They comprise a barely measurable fraction of 1% of lawyers. They do not make laws to create work for lawyers, as is usually implied in these discussions.
  - CamTin 9y ago
    They also don't see the justice system through the eyes of a non-lawyer. If they did, we would likely see a lot of reforms that tried to simplify the courts and reduce the price of justice for ordinary citizens. As it is, that price is basically beyond the reach of most of us, unless the potential settlement is large enough that a lawyer will take it on speculatively. We've turned the Common Law from something that citizens can use to get justice for wrongs against them into something that is only accessible by corporations, or by people so wealthy that their financial and business lives operate as corporations do. Justice has always been for sale. What's happened is that the price has increased to the point where most of us can't afford it.
erjjones 9y ago
There is always elder law! #saulgoodman
cryptonector 9y ago
It is perfectly permissible to not defend a trademark. A lawyer is not obligated, and cannot, make a trademark owner defend it. A lawyer is obligated to provide legal advice to their customers regarding their trademarks. But defending a trademark is a business decision, and the law does not require it -- you are allowed to let a trademark become generic. Lawyers should not make their customers' business decisions. Business executives should not allow their corporate lawyers to make business decisions on their behalf. How to defend a trademark is also a business decision. Dollars to donuts says that Oracle's corporate lawyers have "defend Oracle IP" as a generic goal, and that they know that suing a big player over infringement of their JavaScript (tm) mark would be the sort of business decision that requires senior executive approval, but sending out cease&desist letters to nobodies almost certainly requires no executive approval. This is standard corporate organization and operation. But this too is how you get into PR problems, for example, and corporate lawyers don't really think about that. Now, whether Oracle should or should not be taking these actions to defend the JavaScript (tm) mark -- I don't know. That's their business, and it's a business decision. That the law and courts don't look askance at small-scale enforcement of rapidly-becoming-generic marks is a completely separate problem for some other day. Corporate lawyers should make sure that this is what the business wants. If Oracle as a business has decided that this is what it wants, fine, and I'm ready to believe that they have, but I find it a lot easier to believe that this is just a small decision made by their legal department in something of a vacuum.
- arkades 9y ago
  > t is perfectly permissible to not defend a trademark. A lawyer is not obligated, and cannot, make a trademark owner defend it. When I said “defend as required by law,” I meant “defend the IP in the specific manner dictated by our laws,” not that one is obligated to defend it at all. Eg, suing people to prevent IP from becoming generic is the defense that is recognized in our legal tradition - thus, if they are to defend it, the conservative must follow this route.
  - cryptonector 9y ago
    Indeed, but it should still be a business decision. It's absolutely clear that suing, say, Google, over JavaScript mark misuse would be a big deal business decision at Oracle, while sending a cease&desist letter over some piddly app in the iOS store is almost certainly not. But there is a cost to the latter, in that it destroys goodwill to be overly and unnecessarily aggressive in enforcement of a mark that arguably is now generic. This should be a business decision, not a legal one.
asfdsfggtfd 9y ago
In a free country nobody forces people to become IP lawyers nor are you born an IP lawyer. Becoming one involves a series of choices.

CamTin 9y ago

Legislators and lobbyists are mainly lawyers

arkades 9y ago
Legislators are mostly lawyers, by tradition. They comprise a barely measurable fraction of 1% of lawyers. They do not make laws to create work for lawyers, as is usually implied in these discussions.
- CamTin 9y ago
  They also don't see the justice system through the eyes of a non-lawyer. If they did, we would likely see a lot of reforms that tried to simplify the courts and reduce the price of justice for ordinary citizens. As it is, that price is basically beyond the reach of most of us, unless the potential settlement is large enough that a lawyer will take it on speculatively. We've turned the Common Law from something that citizens can use to get justice for wrongs against them into something that is only accessible by corporations, or by people so wealthy that their financial and business lives operate as corporations do. Justice has always been for sale. What's happened is that the price has increased to the point where most of us can't afford it.

erjjones 9y ago

There is always elder law! #saulgoodman

cryptonector 9y ago

It is perfectly permissible to not defend a trademark. A lawyer is not obligated, and cannot, make a trademark owner defend it. A lawyer is obligated to provide legal advice to their customers regarding their trademarks. But defending a trademark is a business decision, and the law does not require it -- you are allowed to let a trademark become generic. Lawyers should not make their customers' business decisions. Business executives should not allow their corporate lawyers to make business decisions on their behalf. How to defend a trademark is also a business decision. Dollars to donuts says that Oracle's corporate lawyers have "defend Oracle IP" as a generic goal, and that they know that suing a big player over infringement of their JavaScript (tm) mark would be the sort of business decision that requires senior executive approval, but sending out cease&desist letters to nobodies almost certainly requires no executive approval. This is standard corporate organization and operation. But this too is how you get into PR problems, for example, and corporate lawyers don't really think about that. Now, whether Oracle should or should not be taking these actions to defend the JavaScript (tm) mark -- I don't know. That's their business, and it's a business decision. That the law and courts don't look askance at small-scale enforcement of rapidly-becoming-generic marks is a completely separate problem for some other day. Corporate lawyers should make sure that this is what the business wants. If Oracle as a business has decided that this is what it wants, fine, and I'm ready to believe that they have, but I find it a lot easier to believe that this is just a small decision made by their legal department in something of a vacuum.

arkades 9y ago
> t is perfectly permissible to not defend a trademark. A lawyer is not obligated, and cannot, make a trademark owner defend it. When I said “defend as required by law,” I meant “defend the IP in the specific manner dictated by our laws,” not that one is obligated to defend it at all. Eg, suing people to prevent IP from becoming generic is the defense that is recognized in our legal tradition - thus, if they are to defend it, the conservative must follow this route.
- cryptonector 9y ago
  Indeed, but it should still be a business decision. It's absolutely clear that suing, say, Google, over JavaScript mark misuse would be a big deal business decision at Oracle, while sending a cease&desist letter over some piddly app in the iOS store is almost certainly not. But there is a cost to the latter, in that it destroys goodwill to be overly and unnecessarily aggressive in enforcement of a mark that arguably is now generic. This should be a business decision, not a legal one.

asfdsfggtfd 9y ago

In a free country nobody forces people to become IP lawyers nor are you born an IP lawyer. Becoming one involves a series of choices.