Saturday, 19 May 2012

Cyberwars: Imaginary Property And Why It's Important

The continuing negotiations for TPP and other IPR laws and treaties and the advent of surveillance in the name of cybersecurity is indicative of the increasing reliance of the larger corporations on intellectual property as an economic pillar. Why the blazes is it so important and why are our governments playing along with this nonsense?

What is intellectual property?

Intellectual property law is not about your right to control your copy of your idea - this is a right [and] does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. - Economic and Game Theory: Property Rights and Intellectual Monopoly, by Michele Boldrin and David K.Levine

It's about control, and there's a lot of money involved. $500 billion since 1990 on IPR (intellectual property rights) trolling, real or imagined. It's called "speculative invoicing" when the infringements are imaginary, and it often works (unless your name is Drew Curtis and your website is called Fark) because it costs less to settle than defend yourself and because you're often not allowed to talk about it afterwards so you can't let people know what's going on.

The trouble with allowing intellectual property to exist as a right merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. - Against Intellectual Property, by N. Stephan Kinsella

Basically, when you buy a CD, you own the CD, not the music thereon. You have to buy the rights to the music if you want to do anything with it such as share it online. This is because the company that produced it has a monopoly on how that music is distributed and the CD printers have been granded a license to record it onto CDs and whatever media is covered by the licence. And a large selection of industries has sprung up around this monopoly and has a vested interest in keeping it going. Let's take a closer look at them, shall we?

Areas covered by "intellectual property"

If we're going to convince our representatives to take our campaigns to reform intellectual property laws seriously, we need to appraise ourselves of what's involved in it.

  • company name

  • domain name

  • social media accounts

  • patents

  • trademarks

  • copyrights

  • trade secrets

  • business plan

  • logo

  • design

  • reputation

  • brand

With each of the above items is a range of industries and and services that enable and maintain them.

1. Company name

I did a bit of research on my own name on the internet to ensure that anyone who shares my name doesn't have an interest in web design or anything related to it, and when I discovered that I was unlikely to be confused with anyone else in a similar trade, I chose "Wendy Cockcroft Web Design" as my trading name. Companies can and do change their names and sometimes having such a long one can be a disadvantage but a) it's my real name, b) my name is slightly unusual, and c) my name is bound up with my business. More on that in a bit.

If you're not a sole trader, you're either a limited company or some kind of partnership. In any case you have to register those, and they cost. There are legal implications because there are articles of incorporation, etc., to be dealt with. Sole traders don't have to deal with this. The point is, there's money involved when you go above the one man band level. And the bigger the company, the more money you end up spending.

2. Domain name

This wouldn't even have occurred to me if a customer hadn't wanted to use a name that was being used by someone else. He was so emotionally invested in his idea that he utterly refused to take my advice: never use someone else's name. Needless to say, I lost the sale, but I'd rather not have clients who don't listen because they just cause trouble down the line — mostly for themselves. But I digress. The only time it EVER makes sense to take a when someone else has got the .com is when they're squatting, i.e. not using the domain for their business, just hoping someone will buy it off them. Like the business name, you risk being confused with someone else. The trouble with this is they've got there first and have the traffic and customers. Unless you are particularly net savvy, you'll be languishing behind them in the search results — buried by their indexed pages. It's not worth the grief and if you're planning to ride on their coat tails it'll only make you look desperate. Therefore, before you register your company name, do a quick search online to find out whether or not someone else has got there first and whether or not it's worth the bother of taking a similar domain name. I have the .com and of my business name and amn't really bothered with any of the other TLD extensions. I don't need them and am not worried about squatters. Content trumps ad farm and I've got tons of content.

3. Social media accounts

Many social media websites let you have a custom domain. Grab it quick before someone else does. Again, it's the confusion thing. And don't ever discount the role that social media can play in SEO and engaging with your customers. I've settled fights with companies I got annoyed with over social media when their complaints procedures failed me. More in this in a bit.

It's free to set up social media accounts, but if they're going to look in any way professional, you have to pay for that by hiring me or another designer.

4. Patents, trademarks, trade secrets, business plan

At first glimpse none of this applies to me, but patents apply to everything you do. It's why you have to pay to renew your license on the software you use unless you prefer Open Source, as I do. I suppose I could trademark "Your website — your way," but I'd be stepping on the toes of the others who use this tagline. And I'd have to defend it if I found someone else using it by taking them to court. At this point, the money involved multiplies according to how unwilling the infringer is to cease and desist. I haven't got any trade secrets; I'm open about what I do and how I do it. My business plan is "design websites; design more websites; do a bit of graphic design and possibly some website development, but basically, design websites." That's what I do.

Okay, so what if you're not a sole trader web designer? What then? This stuff has to be registered with the IPO. That costs. And of course there are companies and consultancies that will do it all for you. For a price.

5. Logo

The Eye For Design © logo I use came about after a photographer friend called me out for not having a brand. I decided to use something that was uniquely me and embodied what I am and what I do, so I incorporated my initials into a roughly elliptical shape reminiscent of a cat's eye. I don't mind too much if someone uses the idea of a stylised eye or even the colour, just don't make it look like the letters W and C so it looks so much like mine our logos could become confused. It's a no-brainer: unless you're pretending to be me, why would you do it? Remember, I've been using this for about a year so it's established. There's no value in using my logo unless it's for my benefit. Now while I have the moral right to have the Eye For Design © logo associated with Wendy Cockcroft Web Design I haven't bothered to register it a) because I'm not about to go chasing every Tom, Dick, and Harry over anything that looks a bit like it and b) why would anyone else want it, unless it is to impersonate me? There are other legal remedies that simply involve my reporting such incidents as identity theft.

Other people don't see it that way. You'd register your logo as copyright with the IPO and possibly the design of it as well. The decision to do this depends on whether you're concerned about impersonation or people trying to associate themselves with your brand. IPO registration is not free. Neither are the design services you require to make it look professional.

6. Reputation

Your reputation or goodwill is among the most important of your intangibles. Your business stands or falls on its reputation. My clients have left glowing testimonials, most of which are clickable and therefore checkable, to the effect that I'm a reliable and competent professional. They are the backbone of my business. It doesn't matter what skills I have, if I can't satisfy my clients I've failed.

There are companies that exist to build and maintain people's reputations doing all of the above as an holistic service or as one of many service companies that exist to that end. They may post in your social media accounts on your behalf, write press releases and glowing reviews, or do your SEO to float your website to the top of the search engine rankings. Reputation will do more for your business than all of the above. I've seen businesses with terrible websites (or none at all) that live off their reputations. They don't even advertise because their clients do it for them. If you haven't got decades of experience of satisfying customers, you'll have to pay for the appearance thereof, and that costs a lot.

7. Brand

Your brand is your logo, your reputation, the colours used on your website and associated items, the font you use for those... all of that and more. Images, shapes, ideas, words... all of that is your brand. Think of tinned beans. What was the first word that came to mind, whether or not you eat that brand of beans? Precisely. Beans means... You say it. I like to have my Eye For Design logo everywhere I mention my company because that's what I want to do for it: associate teal ellipses with my company name.

Branding by specialist providers who attend to all of the above (including the design) costs a shedload more than I charge, take it from me.

The intellectual property rights enforcement industry

I have only mentioned those items of IP that pertain to myself or my business. What I haven't even approached is the number of collection and enforcement agencies that exist mostly to to perpetuate and enforce it. That would take more time than I am willing to devote to this. The point is that there's a whole industry sector devoted to this. My mistake, which I'm correcting in this post, was assuming it had anything to do with music, movies, artwork, ideas, software, or anything like that. The reason our governments are colluding on this is that the bureaucracy involved is a nice little earner for them. There's also pressure from lobby groups that characterise those of us who oppose them as pirate apologists who want everything for free. The US v Them atmosphere they build (with liberal doses of FUD) paints IP rights enforcement as the way forward for a failing economy.

In addition to the registration and expansion industries, the enforcement industries vie with each other for a slice of the IP rights pie. Lawyers, DMCA agents, and surveillance specialists are flocking to a bountiful fountain of money supplied by compliant taxpayers who aren't going to protest the injustice until it's too late. I wondered why the Labour party is so committed to the expansion of copyright: the economic stimulation and jobs will be in the enforcement industries. The content industries she claims to be protecting are orthogonal to the actual aim. Now it makes sense. Why protect your people when you gain more by milking them for the enforcement industries? And if someone like me points out the absurdity of building an economy on IP rights you can dismiss them as a pirate apologist while gloating at all the new jobs you've created to expand and enforce the new digital regime.

This is the new angle of attack, then: point out that they're not protecting the artists, inventors, and innovators, they're creating a new framework to benefit the enforcement and surveillance industries. Had I understood that from the start I wouldn't have wasted so much time thinking I could reason with them. How can you reason with people who won't engage with you properly and when they do, they lie to you? The Pirate Party is the only hope we have for introducing some sanity into our parliaments. When they stand for election, vote for them!

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