prevent consumer confusion and unfair competition. In other words, you can’t place the Coca-Cola logo on your own newly minted soft drink or use the company’s trademarked advertising slogans to trick people into buying your product. It also protects companies from having their trademarks associated with something unsavory, which is where the blurring and tarnishing comes in. The problem—at least as far as freedom of expression® is concerned—is when trademark holders go too far in trying to protect their property. The Fox News v. Franken case is but one of many examples of this kind of overkill.
By wielding intellectual-property laws like a weapon, overzealous owners erode our freedoms in the following ways: (1) we, or our employers, engage in self-censorship because we think we
might get sued, even if there’s no imminent threat; (2) we censor ourselves after backing down from a lawsuit that is clearly frivolous; (3) worst of all, our freedoms are curtailed because the law has expanded to privatize an ever-growing number of things—from hu-
man genes and business methods to scents and gestures. (Donald Trump not only trademarked “You’re Fired,” but also his hand gesture that accompanied the phrase on The Apprentice. ) In the first case, the makers of the anti–Fox News T-shirts didn’t back down and instead brought in the ACLU, which forced Fox
News to call off its attack dogs. Victory for freedom of expression®.
In the second case, Penguin Books fought Fox’s lawsuit and easily won because the law allows us to parody or criticize intellectual properties. Franken’s publisher didn’t make him change the title or cower from what was obviously a lawsuit that was “wholly without merit.” Another victory for freedom of expression®. These two instances remind us that we can fight back and win, especially because many recent court decisions have upheld free-speech rights in the age of intellectual property. The problem is that lots of indi-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 4
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viduals and companies either don’t know this or don’t want to take a risk.
The third case is far more troubling, because in some important respects the law does curtail our rights. The rise of the Internet has served as a wonderfully effective boogeyman used by intellectual-property owners to legitimate the same one-dimensional argu-
ments they’ve been asserting for years. Those claims go something like this: Anyone who does anything to any of their properties is a
“pirate” (such as VCR owners and music fans who made cassette-tape copies of works in the 1980s). Courts and Congress fortunately rejected this line of reasoning twenty years ago, giving consumers far more options—including the option not to be sued. However, Internet-fueled fears have changed the legal and cultural landscape in dramatic ways.
In 1998 Congress passed the Digital Millennium Copyright Act
(DMCA) in response to the megabyte-sized specter that haunted American business interests. Although well-intentioned, the DMCA is a terrible law. It was written to protect digital property by making it illegal to bypass “digital locks” such as copy-protection technologies on CDs or simple passwords on software. It’s a bad law because it has failed to prevent unauthorized duplication of copyrighted goods—surfed the Internet lately?—and has only succeeded in curtailing freedoms, criminalizing legitimate research, and arresting the development of worthwhile software. (Sometimes it has led to the arrest of software developers themselves.)
One of the DMCA’s unintended consequences is that companies
have tried to use it to squash competition on things such as garage-door openers and aftermarket ink cartridges. A few years ago, for instance, Lexmark placed in its printers an “authentication regime”—a fancy way of referring to a kind of password that lets the ink cartridge and the printer “talk.” Then it invoked the DMCA McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 5