Dystopian Trademark Revelations

Uncovering dystopian technologies is challenging. Nondisclosure agreements, procurement policies, trade secrets, and strategic obfuscation collude to shield the development and deployment of these technologies from public scrutiny until it is too late to combat them with law or policy. But occasionally, exposing dystopian technologies is simple. Corporations choose technology trademarks inspired by dystopian philosophies and novels or similar elements of real life—all warnings that their potential uses are dystopian as well. That pronouncement is not necessarily trumpeted on social media or corporate websites, however. It is revealed in a more surprising place: trademark registrations at the U.S. Patent and Trademark Office (USPTO). To grant registrations, the USPTO demands detailed disclosures about applied-for trademarks. These include the mark itself as well as information about how the applicant will use the mark, forcing corporations to admit their intent for their technologies. But these details do not always provide the full picture. The public can strategically supplement trademark disclosures with knowledge of the dystopian inspiration for the marks to understand corporations’ plans for their products. This Essay uses the marks PALANTIR for big data analytics, PANOPTO for classroom recording systems, and MECHANICAL TURK for on-demand work to illustrate the power of coupling trademark registrations with underlying namesakes to understand technologies’ dystopian implementations. Dystopian trademarks signal dystopian technologies, and the public is well-positioned to seek them out and develop strategies to combat their entrenchment

Hard Truths About Soft IP

People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators or advisers. So what’s so soft about “soft IP?” Simple: women are more likely to be practitioners, partners, and professors within copyright and trademark law, and softness has been associated with women for centuries. Softness is resilient, flexible, and supportive, but “soft IP” is rarely invoked to celebrate these connotations. Instead, the term implies, intentionally or not, that people who practice copyright and trademark law are less capable of hard work than patent practitioners. Given the oppression faced by women and people of color in legal practice, little could be further from the truth. This Essay traces problems with presenting patents as hard, as well as the shortcomings of sidelining copyrights and trademarks as soft. It concludes that the term “soft IP” must be retired and replaced. Sometimes, the right decision is specificity. But there is another alternative. Lawyers can opt for a more sweeping term: “intellectual property.

Teaching Doctrine for Justice Readiness

Clinics strive to teach students lawyering skills. But clinics should also teach students how to use those skills to confront injustice and promote justice, an approach Jane Aiken refers to as “justice readiness.” Casework for clients presents many opportunities for students to become justice ready, but not all matters do so equally. Clinics come with built-in limitations. Some matters involve injustices in one area of law while leaving others untouched. And others don’t require creative advocacy for justice. Casework remains a powerful driver of justice readiness, but it cannot do the job alone. Teaching students doctrine through a social justice lens can bridge the justice readiness gap. This Essay introduces two new pedagogical approaches cultivated within Georgetown’s new Intellectual Property and Information Policy Clinic that do just that: Doctrine x Social Justice and Deep Dives. Doctrine x Social Justice uses cutting-edge social justice case studies that illustrate themes of injustice and creatively explore lawyers’ bending the law toward justice to teach underlying doctrine in nine substantive areas of intellectual property law and information policy, setting students up to observe themes of (in)justice within the field. And Deep Dives empower students to create their own Doctrine x Social Justice sessions by using current issues of law and policy to explore underlying doctrine. Together, these approaches provide a fresh way of teaching doctrine for justice readiness

How Copyright Law Can Fix Artificial Intelligence\u27s Implicit Bias Problem

As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its oftenhomogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. This Article is the first to examine perhaps the most powerful law impacting AI bias: copyright. Artificial intelligence often learns to “think” by reading, viewing, and listening to copies of human works. This Article first explores the problem of bias through the lens of copyright doctrine, looking at how the law’s exclusion of access to certain copyrighted source materials may create or promote biased AI systems. Copyright law limits bias mitigation techniques, such as testing AI through reverse engineering, algorithmic accountability processes, and competing to convert customers. The rules of copyright law also privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased. Second, it examines how a different part of copyright law—the fair use doctrine—has traditionally been used to address similar concerns in other technological fields, and asks whether it is equally capable of addressing them in the field of AI bias. The Article ultimately concludes that it is, in large part because the normative values embedded within traditional fair use ultimately align with the goals of mitigating AI bias and, quite literally, creating fairer AI systems

Trademarks as Surveillance Transparency

We know very little about the technologies that watch us. From cell site simulators to predictive policing algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to engage in meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including contract and intellectual property law. But the public needs a free, public, and easily accessible source of information about corporate technologies that might be used to watch us. To date, the literature has overlooked a free, extensive, and easily accessible source of information about surveillance technologies hidden in plain sight: federal trademark filings.This Essay examines the powerful and unexplored role of trademark law in exercising oversight within and beyond surveillance. Trademark law promotes access to information, and the federal trademark application process—long overlooked by scholars—demands extensive public disclosures that reveal a wealth of information about surveillance technologies. This Essay leverages examples from real trademark applications to explore how journalists, researchers, and civil society can use the detailed disclosures in trademark applications for transparency. I conclude that trademark law can be a powerful tool for correcting longstanding information asymmetries between the watchers and the watched by empowering the public to watch back

Open Source Perfume

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment to democratizing perfumery, this Article draws on personal experience to pioneer the use of open source hardware certification—which extends the open source ethos into tangible products, broadly called “hardware”—which provides additional infrastructure for forfeiting rights in branding, works, components, and know-how to share scents that are made to be sampled. Together, these interventions can fuel fragrances that are free: free to make, free to sample, and free from gatekeeping. Open perfume ought to be the next free culture frontier, and this Article helps chart a course toward its expansion

Using Copyright to Combat Revenge Porn

Over the past several years, the phenomenon of “revenge porn” – defined as sexually explicit images that are publicly shared online, without the consent of the pictured individual – has attracted national attention. Victims of revenge porn often suffer devastating consequences, including losing their jobs, but have had limited success using tort laws to prevent the spread of their images. Victims need a remedy that provides takedown procedures, civil liability for uploaders and websites, and the threat of money damages. Copyright law provides all of these remedies. Because an estimated 80 percent of revenge porn images are “selfies,” meaning that the subject and the photographer are one in the same, the vast majority of victims can use copyright law to protect themselves. Although copyright is not a perfect solution, it provides a powerful tool to combat revenge porn

Defragging Feminist Cyberlaw

In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which alternately amplifies and abridges the feminist values of consent, safety, and accessibility. Cyberlaw simply hasn’t been understood that way—until now. In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how feminist values shape cyberspace and the laws that govern it. Consent impacts copyright law and fair use, the Digital Millennium Copyright Act (DMCA), criminal laws, and free speech. Each of those laws is informed by the invasive act of sharing nonconsensual intimate imagery, better known as “revenge porn.” Two other laws, the Americans with Disabilities Act (ADA) and the recent amendments to Communications Decency Act (CDA) § 230, are crucial to promoting web accessibility for all people, including disabled people and sex workers. And safety influences privacy law and the Computer Fraud and Abuse Act, which affect the rights of pregnant people and targets of online harassment. This Article concludes that feminist cyberlaw is a new term, but feminism has always been foundational to making sense of cyberlaw

Disrupting Data Cartels by Editing Wikipedia

Legal discourse in the digital public square is driven by memoranda, motions, briefs, contracts, legislation, testimony, and judicial opinions. And as lawyers are taught from their first day of law school, the strength of these genres of legal communication is built on authority. But finding that authority often depends on a duopoly of for-profit legal research resources: Westlaw and Lexis. Although contemporary legal practice relies on these databases, they are far from ethically neutral. Not only are these “data cartels” expensive-- creating significant access to justice challenges--they also are controlled by parent companies that profit by providing information to Immigration and Customs Enforcement that is used to surveil, arrest, and deport immigrants, creating a sense of ethical unease in the colloquial sense. One way to make legal research (and by extension, legal practice) more publicly and ethically accessible is to find ways to increase the availability of alternative and supplemental options to research authority. That said, the challenge is that there are not enough free, public alternatives. Wikipedia has the power to disrupt these data cartels and increase public access to legal information. The non-profit, publicly-funded encyclopedia that anyone can edit is already the silent first stop for many legal researchers including judges, lawyers, and the public. With expert editing by law students and junior lawyers Wikipedia could become much more than a first step. This Essay builds on the scholarly literature and multiple years of classroom experience to suggest that law students are particularly well-positioned to challenge the singular reliance on data cartels by reimagining Wikipedia\u27s place in law and legal education. Further, teaching law students how to use and maintain Wikipedia sidesteps colloquial ethical issues raised by data cartels and produces concrete benefits for students: editing Wikipedia creates substantive opportunities to investigate different genres of legal writing, allows integration of students\u27 legal research and writing skills into practice, and instills ethical service obligations and provides professional identity formation opportunities during students\u27 formative years. With proper training, law students can grow as lawyers and legal writers while also making significant and meaningful contributions to the accessibility of legal knowledge during law school and beyond by creating and editing Wikipedia articles that are free, accurate, and ethical sources of that knowledge