Copyright and Trademark Enforcement- Should We or Shouldn't We?

Written By: Joel Corcoran, Of Counsel Attorney

About a month ago, we met for a short seminar on "Every* Little Legal Thing Every Coder Needs to Know." That asterisk is there because -- like any good attorney -- I need to offer the caveat that "every" little legal thing should not be taken literally. But we covered many topics, and folks joining us were actively engaged in the discussion.

Something I didn't expect as a brief foray into legal philosophy branching off from a discussion of YouTube take down notices. As an especially poignant example, is it wrong for YouTube to take down unboxing videos, especially ones that kids put up regarding their favorite toys or hobbies? If you've never heard of unboxing videos, you're missing out on one of the hottest trends in social media -- and something a huge number of people (including me) find fascinating. Even soothing. I stumbled on the genre a few years ago when a longtime friend of mine in St. Louis told me about the hours his kid spent watching unboxing videos on the family iPad. Didn't take long for me to understand why.

I've been watching Tested on YouTube for a while, and watching Adam Savage unbox things is inexplicable calming on stressful days.The simple act of opening and discovering something new, divulging features, pieces, and parts layer by layer offers a sense of order. It's calming, especially when life is exceptionally chaotic. I find the experience similar to knolling.

So why would YouTube take down any unboxing video? Or especially videos that kids put up to share with other kids? Shouldn't we be encouraging kids to be creative, share interests, engage in discovery, and all those great childhood experiences psychologists tell us about? And if anything, isn't the danger of unboxing videos corporate exploitation for free advertising -- especially when it comes to kids?

Setting aside the advertising concerns, there are good legal reasons why a company would want to file a take down notice with YouTube, especially in cases where the video crosses into copyright or trademark infringement. A copyright owner certainly has the legal right to protect their copyrighted material, especially when money is involved. And creators of unboxing videos can make a lot of money showcasing someone else's products. Doesn't the copyright owner deserve at least a cut of that revenue?

But then there is the counter-argument: free advertising. Sure, the person posting the video on YouTube might get some money. Popular content creators often do. But that unboxing video showcasing a product is also free advertising for the every person, every business involved in designing, engineering, manufacturing, distributing, and selling that product. More sales from popular videos means more profits to share among all the players in that stream of commerce -- all without spending an extra cent on marketing or advertising. In a spirit of fairness, shouldn't that balance out? What's wrong with someone using copyrighted material in ways that will get free money back to the copyright owner?

The questions get more complicated when it comes to trademarks because trademark owners have a legal duty to police their marks. Take Lego for example. The Lego trademark alone has to be worth billions of dollars. Maybe trillions. So what happens when someone posts an unboxing video of Nanoblocks or K'Nex, but keeps referring to them as "Legos"? Failing to enforce a trademark risks losing that trademark entirely. Trademark owners aren't legally obligated to sue every single person who infringes their mark, but failing to properly enforce trademark rights can lead to "genericization" -- losing the mark to the public domain. And I doubt Lego wants to see its mark become the next thermos or cellophane.

The whole debate about appropriate enforcement of intellectual property rights hits on the fundamental philosophy of law. At its core, the law is supposed to set minimum standards for behavior. The law is the least common denominator for human society. It's not ethics, etiquette, morality, or even politeness. And the overlap in the Venn Diagram of "what is legal or illegal" versus "what is right or wrong" can be very slender at times.

So what does this mean for small businesses? Or non-profits? Or people just trying to run a side-gig for a little extra income?
If you're in the business of using someone else's copyrights or trademarks, you should make sure you understand the legal consequences of doing so. Sure, putting up your own unboxing video might raise a low risk of infringing someone else's copyright or trademark, but when statutory damages can run from $750 to $30,000 -- per incident -- shouldn't you be aware of the potential consequences before doing so?

If your business rests on your own copyrights or trademarks, you should proceed carefully when accusing someone else of infringement. You may end up taking a perfectly legal action that causes precisely the wrong result, "wrong" as a matter of morality, "wrong" as a matter of good business judgment, "wrong" because it causes more harm than good, especially to your reputation or public goodwill. Having the legal right to do something doesn't necessarily make that option the right thing to do right off the bat. Just look at the case of North Face enforcing its trademarks against a "cherubic teenager" as an example of public opinion coming back to bite you. Even when it comes to protecting and maintaining your trademarks, there are options for doing so other than issuing a take down notice right off the bat. A polite warning letter and reminder could be an option.

If you joined us for that seminar about a month ago, I want to thank you -- once again -- for stirring up such a great conversation. I've thought about the comments, questions, and outright arguments raised that night for quite some time.

And if you weren't able to join us, I hope you will the next time we host that event. We're pretty damn smart lawyers at Rational Unicorn, but we're always searching for the next bit of wisdom and insight -- and every little bit we can get.

Adam Savage's New Warcraft Armor!

One Minute Design-What is Knolling?

Michael Jonas