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Cease and Desist: David, Goliath and Social Media (David's Sword)

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It would be an understatement to say that intellectual property (IP) -- legally defined property resulting from creative thought -- is an important element of our society as it currently exists. Theoretically, in the capitalistic framework, copyrights, trademarks, patents, and the like protect existing good ideas, incentivize additional good ideas, and result in higher caliber goods and services available to the citizenry, thus increasing the quality of life. But those virtues only exist when there is a balance between protecting and sharing, and I'm afraid the scales have tipped dangerously toward 'protecting,' at the expense of discouraging important co-innovators.

The protect/share debate is not a new one. For centuries, scholars have pondered the IP 'balancing' issue. Thomas Jefferson, in an 1813 correspondence with Isaac McPherson, clearly doubted the virtues of purely exclusive intellectual property:

"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

So -- at least according to the Jeffersonian school of thought -- attempts by entities to strictly and exclusively guard their IP is at odds with nature. How are we (as a society, as a global community) to progress when all 'good' ideas are held in confidence?

Today, in the U.S., the concentration of power (read: economic leverage) continues to reside with a proportionate few, and the trend has become: powerful entity, defining its IP rights in the strictest possible manner, pursues weak(er) entity who poses no real threat to the former (and in many cases, is actually adding important value to the subject industry).

Two recent examples immediately come to mind:

(1) Small Denver based ski film company Level 1 Productions sued by big, conglomerate-owned Warren Miller Entertainment (WME) for trademark infringement for a voice cameo by Warren Miller himself in Level 1's recent film Refresh. Warren Miller (the person) happily participated in Refresh, but allegedly ran afoul of various agreements between he and WME which date back the 1988 sale of his name and biz to a predecessor of WME. Refresh is a fan-favorite among ski films to be released this fall -- at least partly owing to it's creative (albeit limited) inclusion of Warren Miller's narration as a link between old and new school skiing. [I wrote about this dispute a few weeks ago in my column, and recent developments can be accessed here.]

(2) Morrisville, Vermont's Rock Art Brewery sent cease and desist letter from Hansen Beverage Co. (the owner of Monster Energy Drink) alleging trademark infringement for naming one of its craft beers "Vermonster." The parties quickly settled the dispute after a contingent of supporters -- using traditional and social media outlets as leverage -- put some real pressure on Hansen. Some stores in Vermont, New York, Maine and Connecticut even yanked Monster Energy Drink from their shelves to protest Hansen's agression. As part of the settlement, Rock Art Brewery agreed to stay out of the energy drink business -- a sort of laughable concession given that it had never intended to enter that sector of the beverage industry. U.S. Sen. Bernie Sanders, I-Vt., summed the whole ordeal up quite nicely I thought, stating: "Any person who would get confused by the two different products and names should probably slow down a bit, and lay off energy drinks ... The American people are getting tired of the greed and recklessness of large corporations, which use their size and power to push individuals and small businesses around." [link to AP article]

If, after reading the above two synopses, you're thinking that each situation is a little ridiculous, finicky, overbearing, an abuse of power, you're not alone. In each instance, after the initial alarm was sounded, hoards of supporters, armed with Twitter and Facebook, took to the interwebs to contribute to what amounts to a social veto of these corporate actions. In each case, the negative PR caused by the social media backlash at least made the aggressors question their aggressive legal actions. In the case of "Vermonster," it drove Hansen to an expeditious settlement whereby Rock Art Brewery didn't even have to concede anything meaningful.

The long term effects on a brand of these sorts of negative PR hiccups are difficult to measure, but it's clear they have cast these two brands in a negative light as far as consumers are concerned. I believe that these corporate follies, stacked on top of each other over time -- with the help of social media -- will lead to one of two outcomes: either (1) the brand is forced to act reasonably, or (2) the brand will be forced out of the market by a brand who is willing to act in-line with the people.

What's clear in all of this is that social media outlets are acting as a sort of gatekeeper -- a check on corporate actions that people in general view as unreasonable / excessive. These new conduits through which the public voice has found considerable traction is -- albeit subtly and gradually -- forcing the big actors in our economy to reconsider their elderly strategies.

The cooperative, 'sharing' paradigm does exist in this world, believe it or not, and it's proving to be a successful model for maximizing aggregate societal value. I was relatively unaware of how the model was being implemented internationally until I saw RiP! A Remix Manifesto, a brilliant documentary about the past, present, and future state of IP in the U.S. [you can stream it on Hulu]. In Brazil, when the government considered how to best fight HIV/AIDS, it determined that free, universal access to medicine was the way forward. To attain its goal, Brazil broke multiple U.S. IP laws and international patents so that it could produce the medicine at a lower cost. As the documentary points out, "The drug industry saw this as an act of war; Brazil saw this as an act of Life." Either way, more people have access to medicine in Brazil. That's a good thing, right?

The fourth and final prong of the 'Remixer's Manifesto' (See, RiP! A Remix Manifesto documentary) is that "to build free societies, you must limit the control of the past." Reading that made me think: social media is allowing people to be in the moment -- to interact, communicate, participate, and leverage their collective will in real time. The past doesn't really have a place in our new communication framework. And the best part is: this realignment is happening organically -- without the need for government intervention as a catalyst.