4 ms·

I had no idea there was no concept of "safe harbor" with respect to trademark. The especially bad part here is while copyright seems to benefit small and large

by rdl 11y ago

I had no idea there was no concept of "safe harbor" with respect to trademark. The especially bad part here is while copyright seems to benefit small and large players alike (while imposing costs on small and large players), trademark benefits accrue primarily to big players, and costs to small players and individuals.

asift 11y ago
Why do you feel copyright benefits small and large players alike? I agree the relative advantages of some forms of IP are greater than others, but the scales seem to be tipped towards large players in most cases.
- eli 11y ago
  Copyright is the basis of GPL and similar open source licenses, for one example.
  - shard972 11y ago
    But if copyright didn't exist then there would be no purpose for the GPL.
    - eli 11y ago
      But I want to be able to require that people who redistribute my code also provide the source.
      - beedogs 11y ago
        Most of the time, GPL code is stolen without the person who wrote it even being aware. And most of the time they become aware of it, there isn't a whole lot they can do to stop it.
        thrownaway122 11y ago
        Please define stolen here? I highly doubt that most GPL code is 'stolen' according to the actual terms laid out in the GPL.
    - arfar 11y ago
      I don't understand this. If there were no copyright, people would be able to copy everything they see anywhere and never be forced to disclose their changes like they do with the GPL, which is at least one intention of GPL. GPL relies on copyright completely, if it didn't exist, I would guess the FSF would come up with some alternative like basing contribution/releases/disclosure/etc around contract law.
      - Dylan16807 11y ago
        The ideal outcome for that point of view is that it would be a direct legal requirement that software is distributed in preferred modifiable form. No licenses or contracts necessary.
- briandear 11y ago
  I highly disagree. My little company, iCouch has a registered trademark. With that protection, we've been able to easily fend off infringement and potential infringement from some rather large players. If, hypothetically, Apple were to attempt to use that name, it would instantly destroy our brand value that we've spent over 5 years building (in the behavioral health tech industry.) a little guy having IP protection prevents and has prevented getting steamrolled by a much better funded company. Without that protection we'd have a huge exposure to our brand being co-opted either intentionally or not by another company. Copyright and trademark protection is especially valuable for the little guy; even more so that someone who could 'win' by simply having a massive marketing budget. There's an almost visceral opposition to IP protection among some factions on HN; but imagine if every time you start a company, a competitor instantly starts using your name. Imagine if every piece of content you create is instantly cloned by a competitor. You'd never be able to succeed because you'd have no way to differentiate yourself from the other company of the exact same name doing the exact same thing as you using your exact code and selling to your customers using your information. It's kind of like a world with absolutely zero friction.
  - arfar 11y ago
    IANAL, but I know I do know a little bit about this stuff. Don't take this as legal advice. I'm sorry to say this, but the Apple scenario you've set out isn't always going to be true. There's a thing called "Reverse Confusion" which says effectively (in my non-lawery words): Why should some tiny wee company stop the well established brand reputation of a larger company? Big company has so much goodwill and reputation under this mark (from overseas or something like that), they should be able to use it. On the face of it, it doesn't make much sense, but there's case law around it. If you're worried about something like that, definitely talk to a lawyer. Obviously this depends entirely on where you live and your local laws, but this case has come up in New Zealand very recently (I think it might still be being tried) with Uber. The taxi company were still able to use their trade mark, even though someone already had a mark in a vaguely similar domain before Uber were even around. here's the first link I found on it if you wanted to read up about it more. http://definitions.uslegal.com/r/reverse-confusion-trademark/ http://definitions.uslegal.com/r/reverse-confusion-trademark...
- rdl 11y ago
  I didn't mean that it benefits them equally, just that both players can accrue some benefits; vs. trademark which necessarily only applies to entities with a trademark. The consumer-protection aspect of trademark (preventing deceptive goods) is clearly not what this is about. It is using a thin layer of trademark veneer to force this into an already-rejected legal hole.
grabeh 11y ago
There is a safe harbor (s.230 Communications Decency Act), however that would protect you in relation to a direct allegation of infringement. Here there is no allegation, rather the record company is bypassing the above section by suggesting Cloudflare are in active participation/concert with the owner of the site. I think the error in the case is really determining that CF are in active concert with Grooveshark. Like EFF say, it shifts the obligation to determine infringement on to the wrong person. Even the proposed solution (having a record company notify CF regarding infringement) is flawed. CF are still in the position of either a) automatically complying or b) expending resources determining whether it is appropriate to take down, leaving you in a similar position to previously.

by rdl 11y ago

asift 11y ago

Why do you feel copyright benefits small and large players alike? I agree the relative advantages of some forms of IP are greater than others, but the scales seem to be tipped towards large players in most cases.

eli 11y ago
Copyright is the basis of GPL and similar open source licenses, for one example.
- shard972 11y ago
  But if copyright didn't exist then there would be no purpose for the GPL.
  - eli 11y ago
    But I want to be able to require that people who redistribute my code also provide the source.
    - beedogs 11y ago
      Most of the time, GPL code is stolen without the person who wrote it even being aware. And most of the time they become aware of it, there isn't a whole lot they can do to stop it.
      - thrownaway122 11y ago
        Please define stolen here? I highly doubt that most GPL code is 'stolen' according to the actual terms laid out in the GPL.
  - arfar 11y ago
    I don't understand this. If there were no copyright, people would be able to copy everything they see anywhere and never be forced to disclose their changes like they do with the GPL, which is at least one intention of GPL. GPL relies on copyright completely, if it didn't exist, I would guess the FSF would come up with some alternative like basing contribution/releases/disclosure/etc around contract law.
    - Dylan16807 11y ago
      The ideal outcome for that point of view is that it would be a direct legal requirement that software is distributed in preferred modifiable form. No licenses or contracts necessary.
briandear 11y ago
I highly disagree. My little company, iCouch has a registered trademark. With that protection, we've been able to easily fend off infringement and potential infringement from some rather large players. If, hypothetically, Apple were to attempt to use that name, it would instantly destroy our brand value that we've spent over 5 years building (in the behavioral health tech industry.) a little guy having IP protection prevents and has prevented getting steamrolled by a much better funded company. Without that protection we'd have a huge exposure to our brand being co-opted either intentionally or not by another company. Copyright and trademark protection is especially valuable for the little guy; even more so that someone who could 'win' by simply having a massive marketing budget. There's an almost visceral opposition to IP protection among some factions on HN; but imagine if every time you start a company, a competitor instantly starts using your name. Imagine if every piece of content you create is instantly cloned by a competitor. You'd never be able to succeed because you'd have no way to differentiate yourself from the other company of the exact same name doing the exact same thing as you using your exact code and selling to your customers using your information. It's kind of like a world with absolutely zero friction.
- arfar 11y ago
  IANAL, but I know I do know a little bit about this stuff. Don't take this as legal advice. I'm sorry to say this, but the Apple scenario you've set out isn't always going to be true. There's a thing called "Reverse Confusion" which says effectively (in my non-lawery words): Why should some tiny wee company stop the well established brand reputation of a larger company? Big company has so much goodwill and reputation under this mark (from overseas or something like that), they should be able to use it. On the face of it, it doesn't make much sense, but there's case law around it. If you're worried about something like that, definitely talk to a lawyer. Obviously this depends entirely on where you live and your local laws, but this case has come up in New Zealand very recently (I think it might still be being tried) with Uber. The taxi company were still able to use their trade mark, even though someone already had a mark in a vaguely similar domain before Uber were even around. here's the first link I found on it if you wanted to read up about it more. http://definitions.uslegal.com/r/reverse-confusion-trademark/ http://definitions.uslegal.com/r/reverse-confusion-trademark...
rdl 11y ago
I didn't mean that it benefits them equally, just that both players can accrue some benefits; vs. trademark which necessarily only applies to entities with a trademark. The consumer-protection aspect of trademark (preventing deceptive goods) is clearly not what this is about. It is using a thin layer of trademark veneer to force this into an already-rejected legal hole.

grabeh 11y ago

There is a safe harbor (s.230 Communications Decency Act), however that would protect you in relation to a direct allegation of infringement. Here there is no allegation, rather the record company is bypassing the above section by suggesting Cloudflare are in active participation/concert with the owner of the site. I think the error in the case is really determining that CF are in active concert with Grooveshark. Like EFF say, it shifts the obligation to determine infringement on to the wrong person. Even the proposed solution (having a record company notify CF regarding infringement) is flawed. CF are still in the position of either a) automatically complying or b) expending resources determining whether it is appropriate to take down, leaving you in a similar position to previously.