https://pluralistic.net/2026/09/28/cost-of-everything/#value-of-nothing
“Digital rights activists have long railed at the use of the term "IP,"
criticizing it for being deceptively imprecise and also rhetorically dishonest.
I get where these objections are coming from, but I think they're misguided.
Start with "deceptively imprecise." "IP" covers a lot of legal ground, from the
"big three" of copyright, trademark and patent, to a whole arcane bestiary:
anticircumvention, noncompete, trade secrecy, nondisparagement, database and
publicity rights, and more. Each of these has a radically different policy
basis and radically different contours.
Take copyright and trademark. Copyright is designed to allow companies (and the
creators they hire or contract with) to commercially exploit creative works. In
the US, copyright is a creature of the Constitution, Article 1, Section 8,
Clause 8:
https://constitution.congress.gov/browse/essay/artI-S8-C8-3-2/ALDE_00013064/
Fun fact: there are only two clauses in the Constitution that include a
rationale: the Second Amendment ("A well regulated Militia") and the copyright
clause ("To promote the Progress of Science and useful Arts"). Everything else
is one of those "truths" that the framers "held to be self-evident." In these
two cases, they decided to explain their thinking.
So the point of copyright is to incentivize investment in creative works, and
its mechanism is a set of limited rights over those works, for limited times.
Copyright expires, and it is subject to "limitations and exceptions," including
"fair use," a very broad set of highly situational rights to use works even if
the rightsholder objects:
https://pluralistic.net/2026/02/07/aimsters-revenge/#effective-means-of-access-control
Now consider trademark: trademark could not be more different from copyright!
Trademark is a
consumer protection rule: it empowers companies to sue
competitors who engage in deceptive conduct that could confuse their customers.
The idea here is that if you get a pair of fake Nikes that fall apart within a
matter of days, or eat at a fake McDonald's whose food is (somehow?) even worse
than regular McDonald's food, you are unlikely to take action. You're not going
to hire a lawyer over a hamburger.
So trademark deputizes companies to sue on behalf of customers who have been or
might be deceived by unscrupulous competitors whose merchandising and marketing
are likely to confuse the public. Unlike copyright's "fair use," trademark has
other defenses, like "nominative use" ("This case fits an iPhone" is not a
trademark violation, provided it's true). Also, many trademark claims can be
dispensed through simple disclaimers: for example, my debut novel
Down and Out
in the Magic Kingdom features a prominent notice informing readers that it
wasn't endorsed by the Walt Disney Company. No confusion, no problem.
Unlike copyright, which (eventually) expires, a trademark can carry on for so
long as it is associated with a company's products or services. Procter &
Gamble's moon logo has enjoyed trademark protection since the mid-19th century,
50 years before the first federal trademark law, and 100 years before the
Lanham Act, the current federal trademark law.”
Via Muse.
Cheers,
*** Xanni ***
--
mailto:xanni@xanadu.net Andrew Pam
http://xanadu.com.au/ Chief Scientist, Xanadu
https://glasswings.com.au/ Partner, Glass Wings
https://sericyb.com.au/ Manager, Serious Cybernetics
