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As Will Shetterly points out, the same giant comics companies that want a government patent to collect rent on the English word “superhero” have throughout their history shown no reluctance to make extensive use of material from the public domain. Like ruling dynasties descended from pirates and outlaws, the media companies that built their fortunes on freely-available culture now want to charge us for it.
Marvel and DC’s behavior differs from the rest of Big Media only in its haplessly transparent crudity, par for the course in the world of comics, a field I once described as “combining the ethics of Hollywood, the social graces of science fiction fandom, and the Big Money of book publishing.” The central desire of most media companies today is to enclose as much of the cultural commons as possible, to replace normal operations of culture (like, you know, loaning a book to a friend) with transactions for which they can charge a fee.
I’ve long resisted the idea that the modern limitated-liability corporation, considered as an “individual” (as it is, under American law) is in fact—no matter how good and kind the people inside it—a sociopath. But the older I get and the more I see, the more I suspect that’s essentially the case.
I'd *like* to follow that second link, but looking at the address I think maybe not from work...
"Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and nobody to be kicked?" - Lord Chancellor Thurlow
Chris beats me to it. What do you expect when you create something that has all the rights and privileges of a citizen, but none of the duties and responsibilites, and is protected from the standard penalties?
Of course you'll get a sociopath. The system is optimized to the creation of such.
Paul: It's safe for work.
Very strange- I could have sworn that this was already the case, seeing as just about all the other companies use thinly veiled substitutes (Alan Moore's ABC line uses "Science Hero," for example).
Extra-Mega-Bonus Fun Fact: For at least several years, DC has not used the term "superhero" as their generic term for a character with super powers- they've been using the marginally more mature sounding "metahuman," cause their fan base has mostly grown up and apparently wants a clean break with the silly old days (well, not really- there's a current backlash against that, hillariously manifesting itself in DC's current crossover- which decries the overly serious excesses of the post silver-age comics in a title composed almost entirely of them)
I remember my Constitutional history professor saying that the worst Supreme Court decision never happened--Santa Clara County v. Southern Pacific, where the Clerk of the Court inserted as a "statement of fact" Chief Justice Waite's comment about corporations having rights under the 14th amendment and we were stuck with it as if it were a real decision ever since. My professor used to foam at the mouth about it.
And if I remember correctly Justice Waite relied on forged information from a former congressman who was one of the drafters of the amendment and who was at that time working for the railroad.
Semi-coincidentally, today's Diesel Sweeties is on point.
Some Public Domain characters which the Disney Corporation has appropriated and made lotsa moolah from -- to the point where kids might think Disney *created* them:
-Snow White and the Seven Dwarfs
-Cinderella
-The Sleeping Beauty(a.k.a. Aurora)
-The Little Mermaid
As for appropriating the word "superhero"... shouldn't the Marvel Corporation first of all appropriate the word SUPERVILLAIN? The word most befitting its corporate character, so to speak?
Actually, it's not entirely the corporations' fault. Instead, blame London silversmiths of the sixteenth through eighteenth century, and their influence on the modern law of trademark.
Trademark—unlike copyright—is a "defend it against all infringers or lose it" variety of intellectual property. That means that if Mattel wants to protect the mark "Barbie," it must vigorously assert that the notorious "Barbie Girl" infringes its trademark. If it doesn't, it could lose the right to enforce that mark against anyone.
This is not, by the way, a defense of the tactics frequently used by markholders in defending their marks. They tend to interpret "vigorous defender" as meaning "assh0le". They tend to neglect one of the main principles of strategy: proportional response. They tend to expend every bit of true good will they've built up over the years in protecting the accountancy fiction of "goodwill" in brand names (as opposed to the products/services themselves).
All of that said, as a matter of law Mattel had to lose the "Barbie Girl" case. Parody and satirization of a mark, and in particular of the attitudes of both the markholder and consumers of the related product, is a fair use (analogous to "fair use" in copyright law, but not really the same thing in detail). However, that it was a losing battle did not excuse Mattel from taking some ("vigorous") action expressing its disapproval—and, in the tradition of lawyers everywhere, that means at minimum a threatening form letter written 25 years ago in a language only partially resembling English that nobody now dares to change.
That's interesting, but it doesn't really undercut the observation that certain kinds of bad behavior are emergent properties of organizing human beings into these things we call "corporations."
Of course humans found ways to be assholes for centuries before the limited-liability corporation was devised, but it's hard to escape noticing the extent to which corporations don't just engage in socially destructive behavior, they're compelled to engage in socially destructive behavior. Even when they're run by people of good will.
I remember my Constitutional history professor saying that the worst Supreme Court decision never happened--Santa Clara County v. Southern Pacific, where the Clerk of the Court inserted as a "statement of fact" Chief Justice Waite's comment about corporations having rights under the 14th amendment and we were stuck with it as if it were a real decision ever since. My professor used to foam at the mouth about it.
Although my background knowledge in this area is admittedly weak, I would be inclined to also lay some blame at the feet of the Supreme Court decision that said that publically-held corporations could not let any other considerations outweigh that of financial benefit to their shareholders. (I can't remember which decision this is offhand, but I'm sure somehere here knows. It was from 1913 or somewhere in that vicinity.)
Of course, one could argue that corporations that pursue short-term financial benefit to their shareholders at the expense of physical or mental environmental considerations are in fact sacrificing long-term financial benefit, but that would be very hard to prove.
Some Public Domain characters which the Disney Corporation has appropriated and made lotsa moolah from -- to the point where kids might think Disney *created* them:
I'm googling for references right now, but I recall from a couple of years back, that Disney actually started sending cease & desist letters to authors using the traditional Beauty & The Beast fairy tale as the basis for story, play, or elsewise. They weren't just protecting their retold version and identifiable elements from that version, but claiming that ANY version based on the original fell under their copyright and trademark.
(1) Patrick, I wasn't intending to argue that unnatural persons (corporations and other business entities) tend to be, umm, just as honorable as natural persons (people). I can see how you might read my short comment that way, but it wasn't intended.
(2) Dan, that's a common misconception. It was not a US Supreme Court interpretation. Instead, it was dictum (a side comment) in a procedural matter involving an appeal from the New York Court of Appeals. The proper purpose of corporations is a matter of state, not federal, law; that's one of the many reasons that so many corporations are actually "citizens" of Delaware.
In any event, whether that decision still holds is open to question. At that time, corporations were required to have specific purposes stated in their charters, and activity not within that purpose was not shielded by all of the protections corporations provide for investors. Modern corporation statutes and charters allow a corporation to pursue "any lawful purpose"—one of the few phrases that one can find in all US-based corporation statutes. "Financial benefit to shareholders" remains one test for a publicly owned corporation—but only by indirection, based upon requirements of the Securities Act of 1934 (and would apply equally to non-corporate issuers of securities).
We now return you to something worthwhile. Like contemplating the problem of model releases in public settings.
And then there's Dan O'Neill, who fought Disney and won, no, lost, no, won...
I'm not sure if I'd consider the attempt to trademark "super-hero" as "socially destructive behavior" (in comparison, say, to Enron's capers). The odd thing is that Marvel's and DC's action seems both inane and rational. When businesses are given a tool to stifle competition, you can't expect them not to wield it.
Still, Marvel deserves a "no-prize" for this.
it's hard to escape noticing the extent to which corporations don't just engage in socially destructive behavior, they're compelled to engage in socially destructive behavior. Even when they're run by people of good will.
Well, there are two variations of what is compelling them to be this way.
The first is profit, which I don't have a problem with. But corporations are compelled to produce profit on a quarterly basis, to keep the stockholders happy, and to generally make more money than they did last quarter. I don't have a direct problem with wanting to make a profit, but the way some companies make sure their quarterly reports are good cause them to do things generally ascribed as either insane (avoiding purchasing needed equipment until next quarter because it will make the books look bad this quarter) or criminal (cooking the books to keep them looking good). Profit is fine. But when quarterly profit and quarterly reports become more important than what the company is actually doing on a day-to-day basis, and more importantly, on a long-term basis, then things run amuck.
The other bit of "compelling" is the corporate veil. The protection of individuals on the corporation from being held personally responsible for their decisions that affect company actions. I don't have a problem with some level of isolation between personal and corporate responsibilities, but I think it should be limited to financial considerations. Board members should be held personally accountable for their actions. The problem then becomes a matter of where to draw the line.
Unless someone is suggesting there should not even be a line?
The level of protection currently offered by the corporate veil seems to be too much. It allows individuals to act with impunity and to be protected from prosecution or punishment of any kind because of some legal document that says they didn't do the deed, the company did.
While I disagree with Plato's assertion that no man can resist being seduced by the Gyge's Ring of Invisibility, I do agree that social constructs should be designed to enable and reward responsible behaviour.
And back to the topic of Public Domain works being put into new proprietary works, the Ring of Gyges, a ring of invisibility that seduces its wearer to abuse and misuse its power, certainly has a certain familiarity to it.
I've seen a couple of blogs that seem to think that this is something that Marvel/DC are just now trying to do. Everyone realizes that this is about a trademark registration that was granted back in 1981, right?
The only thing new in this discussion is a that comic-themed kids' science exhibit sponsored by Marvel describes itself as a "Marvel(r) Super Heroes(tm) Science Exhibition". Cory Doctorow seems to be bothered by that little (tm), which strikes me as being a bit overly sensitive.
It's not uncommon for companies to put a (tm) symbol on anything that's vaguely trademarkable, to the extent that most people don't even notice the symbols any more. Take a look at, say, a Pizza Hut or other large restaurant chain menu, and you'll be surprised at how many phrases they seem to be claiming as their own.
And why not? It doesn't cost them anything to add that little symbol, and if they ever do decide they want to enforce any rights in a name or phrase, having *not* used the symbol is likely to be brought up by someone who will claim he didn't know it was a trademark when he started using it.
I'll get in line for the outrage when Marvel/DC actually start threatening people for things I consider harmless. The fact that a Marvel-sponsored event uses the (tm) symbol, however, is so commonplace a trademark usage that it's unremarkable.
But that little (tm) by the word Super Hero means that they are laying claim to the word Super Hero. This isn't a technicality or some legality that has no meaning in the real world. They put a NO TRESSPASSING sign on public property that everyone uses, and they appear intent on enforcing it.
And the thing about trademark is that it can last forever. it has no expiration date. As long as it can be enforced by the holder, it remains their property. Which makes me wonder if maybe its time to make a law that says all trademarks other than company names must expire after some period of time.
I wonder if Marvel is planning to trademark Judaism. After all, it was last year or the one before that Ben Grimm's religious background came out. Oh, and if you're wondering what the religious beliefs of the Hulk are, just go there.
I think Dan Blum's point is well taken -- corporations are not merely entitled to be sociopaths, but their managers can be sued into the ground if they fail to act as sociopaths.
Sadly enough, companies like Disney, Mattel or Marvel don't even act as intelligent sociopaths (which may make the argument of short-term vs longterm shareholder advantage moot). If you look at the famous crazy people, whether dictators or serial killers or whoever, they've all been capable of acting incredibly charming, ingratiating and even occasionally humble when the manipulative context calls for it. It's only stupid sociopaths (or intelligent ones who've been near the top for too long) who act like megalomaniacal children all the time.
> And the thing about trademark is that it can last forever. it has no expiration date. As long as it can be enforced by the holder, it remains their property.
Of course trademarks have an expiration date. The purpose of a trademark is to indicate the source of the products or services. If a name becomes generic, it effectively ceases to be a trademark.
That doesn't stop companies with such marks from trying to gently prod people who they think are using the name incorrectly (write a magazine article with uses Kleenex or Xerox as a generic noun for that type of product and you'll see what I mean), but it makes it unlikely that a company would seriously try to enforce their trademark (because that risks a court making a decision on the record that the mark is generic).
Trademarking a word isn't unusual; conside "Coke." If it's a beverage, it's a trademark of the Coca-Cola Company.
That doesn't mean they have any say about the stuff used in coke-fired furnaces, or the white powder people put up their noses. Trademarks are limited in their application.
As I understand it, the DC/Marvel joint trademark issued in 1981 only applies to certain uses of the word "superhero." Admittedly, they're the most common uses.
Anyway, this is very old news. It's been common knowledge among comics fans for decades.
After all, DC originally tried to claim ownership of the concept of a superhero -- back in the 1940s they sued just about every other comics publisher in the business, claiming all superheroes infringed the copyright on Superman. Which is why many publishers carefully avoided any use of the word "super" at all, calling their heroes "mystery men" instead.
DC lost most of those suits, won a few; that's how they got ownership of the original Captain Marvel.
Brian, there is a difference between a patent, which expires 20 years after it is awarded, and a trademark which doesn't have an expiration date. Trademarks only "expire" after the holder loses a lawsuit. if the holder sees an infringement, sues, and wins, they continue to hold the trademark. If they sue, and the other side can show the court that the word has entered common usage, then the holder loses the lawsuit and also loses exclusive use of the trademarked word. Which makes every lawsuit not just a question of what the holder lost because fo the infringer, but a matter of the holder losing ALL rights to the trademark. Which means when a suit is filed, the holder is going to bring out all their guns to bear on the infringer, regardless of the scale of infringement, but in line with an "all or nothing" attitude.
If you see no difference between these two scenarios, then, well, I don't know what to tell you.
I'd just say that Trademarks don't expire, they are lost.
Greg London wrote: I don't have a problem with some level of isolation between personal and corporate responsibilities, but I think it should be limited to financial considerations.
I incorporated my business about a decade ago. Prior to that, I operated for four years as a sole proprietorship. Incorporation provided two benefits: (1) a tax rate that was generally lower than applied to individuals, which gave me additional incentive to reinvest profits and grow the business, and (2) a shield between myself and my company, so that if someone sued the latter, my personal property wouldn't necessarily be at risk. I might lose the biz, in other words, but not the house.
My business has one employee--myself. To date I have not been tempted into sociopathic behavior. (Comment directed to paul, not Greg.)
I remember first seeing the claim that super hero was a trademark of Marvel and DC on the box of the old Marvel Super Heroes RPG -- the first one, published by TSR in 1984. So yeah, this is nothing new.
The fact that this is still an issue must be due to the shallow pockets of most comics publishers. I can't imagine DC's and Marvel's claim would survive in court.
Actually, according to the book (Corporation, right...I can't look it up at the moment) and the special that was done on it weren't the coporations as people actually pyscopaths?
Richard,
I think the two benefits you mention would qualify as "financial considerations" as I mentioned before. I don't have a problem with having a legally constructed firewall between your business finances and your personal finances. I don't think that such a barrier is a temptation to sociopathic behaviour.
So, unless I'm missing something, I believe we are in agreement.
Well, a corporate entity does not ever suffer dissolution upon the murder of humans, no matter whether it is or is not a recidivist!
They get out of taxes far better than your average human. They get a really fat dole, while humans are left to starve.
Seems that they just may be a more successful lifeform than thee and me.
If a corporation is regarded as a legal person, I think the idea that financial rewards to the stockholders should be the overriding consideration is pretty wrongheaded.
If one considers a stockholder's investment in a company as akin to a parent's investment of money, time and ego into a child, then making financial recompense the top consideration would be like raising children for the sole purpose of having them support you in your old age.
If our son ever got to a position where he'd be able to support his parents in their old age, I certainly wouldn't object. But I want more than that for him; I want him to be a good citizen, with standards and ethics and morality.
(I'd like him to be happy and satisfied in his life, too, but my inclination is to think that's more likely to be achieved thru having standards and ethics and morality than just thru trying to accumulate wealth.)
In other news: did you know there are these people who read science fiction, who call themselves Fans and Hold Conventions?
Budding rhetoriticians looking for tips on framing should pay careful attention to Patrick's language. Note the following:
1) At no point in his post does Patrick use the term "intellectual property", a phrase that allows media corporations to appeal to portray themselves as law-abiding property owners.
2) His metaphors are all strong, simple, and work to support his point: "ruling dynasties" (connoting unearned privilege), "pirates and outlaws" (turning the "pirate" label back on the media companies, nice!), and "enclosing the commons".
I think "monopoly" would have been a better term than "a government patent to collect rent", but aside from that, it's a great example of effective framing.
For folks who haven't followed the link:
Nope, this isn't new. Marvel and DC filed their trademark in 1979, and it's annoyed me ever since. As recently as 2004, they forced a small publisher to change the title of a book called Super Hero Happy Hour--no small inconvenience for a small publisher. The science museum nonsense was merely the last straw. (Hmm. Is that reference trademarked by Disney?)
The site is worksafe, if a picture of a guy in his longjohns is worksafe. The name refers to Warren Ellis's name for superheroes.
(2) Dan, that's a common misconception. It was not a US Supreme Court interpretation. Instead, it was dictum (a side comment) in a procedural matter involving an appeal from the New York Court of Appeals. The proper purpose of corporations is a matter of state, not federal, law; that's one of the many reasons that so many corporations are actually "citizens" of Delaware.In any event, whether that decision still holds is open to question. At that time, corporations were required to have specific purposes stated in their charters, and activity not within that purpose was not shielded by all of the protections corporations provide for investors. Modern corporation statutes and charters allow a corporation to pursue "any lawful purpose"—one of the few phrases that one can find in all US-based corporation statutes. "Financial benefit to shareholders" remains one test for a publicly owned corporation—but only by indirection, based upon requirements of the Securities Act of 1934 (and would apply equally to non-corporate issuers of securities).
Thanks for the correction - I figured someone would be able to provide actual information on the subject.
I have to say, though, that even if it is actually questionable if the decision still holds, it certainly seems as if everyone acts as if it does. Of course this (the promotion of shareholder financial gain over everything else) could be (and probably is in large part) driven by other factors, such as the extremely short-term focus of too many stock analysts (as mentioned above).
Emma noted:
I remember my Constitutional history professor saying that the worst Supreme Court decision never happened--Santa Clara County v. Southern Pacific, where the Clerk of the Court inserted as a "statement of fact" Chief Justice Waite's comment about corporations having rights under the 14th amendment and we were stuck with it as if it were a real decision ever since. My professor used to foam at the mouth about it.
And if I remember correctly Justice Waite relied on forged information from a former congressman who was one of the drafters of the amendment and who was at that time working for the railroad.
. . . that's a common misconception. It was not a US Supreme Court interpretation. Instead, it was dictum (a side comment) in a procedural matter involving an appeal from the New York Court of Appeals. The proper purpose of corporations is a matter of state, not federal, law; that's one of the many reasons that so many corporations are actually "citizens" of Delaware.
Some Public Domain characters which the Disney Corporation has appropriated and made lotsa moolah from -- to the point where kids might think Disney *created* them:
That's interesting, but it doesn't really undercut the observation that certain kinds of bad behavior are emergent properties of organizing human beings into these things we call "corporations."
Scorpio wrote:
Seems that they just may be a more successful lifeform than thee and me.
Sounds like you've been reading Accelerando.
Patrick writes: "I’ve long resisted the idea that the modern limitated-liability corporation, considered as an “individual” (as it is, under American law) is in fact—no matter how good and kind the people inside it—a sociopath. But the older I get and the more I see, the more I suspect that’s essentially the case."
All my doubts were erased by the twelve months I spent working for Enron Broadband Switching Systems after it acquired the startup company I joined in May 2000. I've had almost five years to recover from that, and— as others here have observed— I have plainly not gotten any less bitter.
More bitter, actually, if my recent posts are any indication of my state of mind.
Perhaps a finding that DC and Marvel are colluding in restraint of trade when they claim joint ownership with cross-licensing would be a fair resolution? CF Adam Smith on what capitalists do when they get together.
the modern limitated-liability corporation
Query - I take it the reference is to corporations in general with their limited liability for shareholders? That is Corporate Name Inc. and not to the relatively new usage (with associated recent legislation) in the United States of a limited liability corporation that is John Doe LLC.?
Oddly enough I am in more or less complete agreement with our host that publicly held corporations are sociopaths at best amoral.
I like the Naval Institute/Clancy fuss over rights in the Red October universe as an example of a system of associations with artificial responsibilities such that the system leads individuals to act as part of a collective against their own best judgement. This compares with some of examples cited exthread of easy dealings with actual creators and hard dealings with subsequent rights holders
I have known some closely held businesses in the corporate form where the business was closely identified with ownership and the business reflected the owner's personality - early Ford for a horrible example but some that were small businesses - arguably paternalistic but where all the stakeholders of ownership, workers and community were weighted in corporate decision making. Perhaps Malden Mills according to published reports was an example of this on the national level or even IBM in the old days when it was all Watson at the top.
The only thing that keeps me from being an anarcho-syndicalist is a firm conviction that all faceless associations are sociopaths and most with a face as well. Sovets with a small s are Soviets with a big S.
Sadly I see government as equally a faceless association - das buro steht immer.
that DC and Marvel are colluding in restraint of trade when they claim joint ownership with cross-licensing
Hm, ya know, I wonder if Trademark can even be co-owned by two separate companies. If it can't then their approach is clearly unsupported by teh law and they would have to drop it.
If it had to be either DC owns the trademark OR Marvel owns the trademark, then I'm sure you would see the non-owner suddenly reverse their stance on the trademarkability of the word "Super Hero". I assume that neither company is actually paying the other one for licensing.
Any good trademark and anti-trust lawyers here?
Seeing this again has made me curious about just how and when the word "superhero" appeared in the English vernacular. I don't recall seeing it in my childhood/adolescent comic book reading period -- which extends from around 1950 to 1962. The phrase "superpowers" is used commonly, in that era. It's possible that "superhero" was used in issues of the Justice League of America, but I don't remember it.
I don't remember that Fredric Wertham used it, either, in "Seduction of the Innocent, (c. 1953). Lawrence Watt Evans may know whether the word was ever used in the '40s (in issues of All-Star Comics).
My first recollection of seeing the word "superhero" in a comic book is in Spiderman. My guess is that Stan Lee may actually have coined it -- but that's only my weak, unassisted memory. I do remember seeing "flashy-underwear heros" much earlier (I think Kirby and Simon used that in their 1950s "Fighting American" -- a great Captain America pastiche.)
Then too I've been associated with some corporations that were unquestionably crazy but often these were 501(c)(3) or other such organizations that actually drained money from their core members. Insanity was not so much an emergent property as prominently displayed. Payoff was certainly not pecuniary.
Would it be better to limit corporations to a public purpose - government charters? - and make businesses solo, closely held or limited/unlimited partnerships? That would be the end of corporate retained earnings and Sub(S) issues of taxation or double taxation - instead of taxing corporations individuals could be taxed on imputed profits (profits distributed and also called by the partnership?) as part of the individual income tax? It would be harder to get venture capital with no participation though.
Hard cases make bad laws. Perhaps a code law system of copyright and patent and trade mark and intellectual property in general would be better? That is a system not bound by precedent in this area would allow easier distinction on a case by case basis (granted cases are easily distinguished by the facts see the Florida vote in 2000).
Sadly it would be as easy for an Intellectual Property Commission to suffer the capture theory of regulation as for a Congressional staffer to slip words into law overnight.
I just had a horrible thought:
If Disney grabbed Victor Hugo's THE HUNCHBACK OF THE NOTRE DAME and turned it into "Disney's The Hunchback of Notre Dame(tm)"... maybe that's what the corporation will continue to do with every single work of literature that goes into the Public Domain over time!
Toward the end of this century, expect to see the following freshly "appropriated properties":
Disney's FOUNDATION(tm)
Disney's THE STARS MY DESTINATION(tm)
Disney's WAITING FOR GODOT(tm)
Disney's THE LORD OF THE RINGS(tm)
Come to think of it, there might be a bloody fight between corporations over who gets to grab the last title on the list...
Ok, why doesn't the DC copyright page list "Super Hero" as one of its protected terms?
http://www.dccomics.com/about/?action=copyrights
Ok, why doesn't the DC copyright page list "Super Hero" as one of its protected terms?
They do.
"Except as noted, all books, titles, characters, character names, slogans, logos, and related indicia are trademarks of and copyright DC Comics and/or WildStorm Productions, an imprint of DC Comics."
Since the trademark is owned by DC, it won't be on the exceptions list.
Seeing this again has made me curious about just how and when the word "superhero" appeared in the English vernacular.
I've been wondering the same. The earliest example I'm sure of is The Legion of Superheroes.
I've decided to continue the strip for a while at a less frightening address: Captain Copyleft. So far, the site is only a copy of the original. I'll probably post another bit of Supervman's story in a day or two.
The answer to "when" appears to be 1942. See Citations for superhero n..
Ah, good. The earliest I could find was the song "Super Heroes" from The Rocky Horror Picture Show (1975).
America seems riddled with examples of ridiculous trademark claims -- commonplace words and phrases with that little "TM" symbol attached.
How can anyone publish a dictionary?
will, that link is awesome. unfortunately, I just burned a chunk of time looking up various words. But still, awesome.
It's not true that trademark requires defense against all infringers or lose it. Trademark requires that you defend it against enough infringers that it remains non-generic. IOW, Disney could probably have let that daycare center paint Mickey on the walls without losing the Mickey trademark.
But in Marvel/DC's case, even the "trademarks have to be defended or they are lost" defense is pointless. "Superhero" is ALREADY generic. Marvel/DV are attempting to take a word in the public domain and enclose it by getting the world to treat a generic term as a proprietary one.
note to self: never use the words "never" or "all" in a sentence because it always comes back to haunt you...
On second thought, I think my original post is actually accurate.
Trademarks only "expire" after the holder loses a lawsuit. if the holder sees an infringement, sues, and wins, they continue to hold the trademark. If they sue, and the other side can show the court that the word has entered common usage, then the holder loses the lawsuit and also loses exclusive use of the trademarked word. Which makes every lawsuit not just a question of what the holder lost because fo the infringer, but a matter of the holder losing ALL rights to the trademark. Which means when a suit is filed, the holder is going to bring out all their guns to bear on the infringer, regardless of the scale of infringement, but in line with an "all or nothing" attitude.
This isn't exactly the same as "trademark requires defense against all infringers or lose it". It was more a "if you get an infringement big enough to require a lawsuit, then losing that lawsuit means you may very well lose the trademark too if the alleged infringer can show teh word has entered common usage." But I could have been more clear.
never use the words "never" or "all" in a sentence because it always comes back to haunt you...
That should have read:
never use the words "never" or "always" in a sentence because it always comes back to haunt you...
damn it.
And my post was in response to Brian who said
It's not uncommon for companies to put a (tm) symbol on anything that's vaguely trademarkable, to the extent that most people don't even notice the symbols any more. Take a look at, say, a Pizza Hut or other large restaurant chain menu, and you'll be surprised at how many phrases they seem to be claiming as their own.
And why not? It doesn't cost them anything to add that little symbol, and if they ever do decide they want to enforce any rights in a name or phrase, having *not* used the symbol is likely to be brought up by someone who will claim he didn't know it was a trademark when he started using it.
I'll get in line for the outrage when Marvel/DC actually start threatening people for things I consider harmless. The fact that a Marvel-sponsored event uses the (tm) symbol, however, is so commonplace a trademark usage that it's unremarkable.
So, my point was more that Trademarking something IS a big deal because it never expires, not that DC/Marvel was doing a "trademarks have to be defended or they are lost" approach.
I also stated early on that these guys were putting a NO TRESSPASSING sign on land already being used by the public.
I forgot about the Legion of Superheroes!
My hunch is that the two-word phrase "Super Hero" doesn't enter the vernacular until later. (Archie and Jugghead?) The hyphenates "super-hero" and "super-heroic" may predate Siegel and Shuster.
Should have noticed, the DC Legion usage is a hyphenate. Maybe my guess was right about Stan Lee having the first single-word usage.
I'm fairly sure Frederic Wertham didn't use the term "superhero" in Seduction of the Innocent; I don't know if he might have somewhere else.
But Dr. Wertham's use of English -- which wasn't his first language, after all -- was often eccentric; he considered superhero comics (whatever he called them) and horror comics to both be subgenres of crime comics.
and wasn't "Superman" first used by Nietzche....
(ducking)
Although it's unlikely to become an issue here, just for completeness trademarks can also be lost by abandonment. If a company stops using them for a period of years, it may not be able to recover exclusive rights to them in its field of business. (Which is probably a good thing, even if it means that my cousins and I will never be rich beyond our wildest dreams.)
I wonder when the descendants of Noah Webster will come to collect on all of our conversations.
I just had a horrible thought:...
Disney's THE LORD OF THE RINGS(tm)
Personally, I can't wait to see the skating Balrog in the ice show.
Mike: Now that's going to haunt my dreams. Along with the seven Gimlis...
There's also the time TSR, who had the license for Indiana Jones, printed up stuff with a ™ symbol next to the word N*zi. (This later morphed into "Did you hear TSR tried to trademark 'N*zi'?")
and wasn't "Superman" first used by Nietzche....
Actually an interesting question, since "superman" is of course a translation of the German "übermensch", nowadays often translated as "overman". But when did the first translation with "superman" appear? Fairly early: this 1891 translation uses it.
But the current habit of using "overman" leads to the obvious solution in case the Forces of Good loose this particular copyfight: all the independents should start calling their heroes "overheroes."
Hopefully it won't come to that...
In the book/movie The Corporation, Joel Bakan basically says that yes, corporations are sociopaths.
Likewise for Indiana Jones, they claimed a trademark on Thuggee™.
George Bernard Shaw's Man and Superman predates the comic too. I was bitterly disappointed by the play when I read it as a 12 year old, though I confess that some of its moments have stayed with me, particularly Don Juan's argument that heaven is pretty boring compared to hell -- strong stuff for a good Catholic boy.
The TSR use of trademarks there was acutally for the distinctive likenesses of those particular Nazis, or the people who portrayed them for the art work.
For readers of the Private Eye letters page, about a year ago:
"portakabin".
"Products of your imagination™"
I recall that as being another TSR effort, though my recollection is that it was something akin to an advertising slogan.
Aren't trademarks supposed to be limited in scope? I know the mobile phone company Orange has a trademark on a particular orange colour, but only applying to quite limited uses, such as advertising mobile phones.
Actually, there's an excellent argument that DC and Marvel have lost the ability to claim "superhero" through failure to police the term in role-playing games. The original version of Dungeons & Dragons used the term "superhero" as the "level title" for eighth-level fighters in 1974, and my hazy recollection is that such a use was inherited from predecessor games (my copy of Chainmail is in storage, so I can't check it). That would at minimum carve out an area of use that is outside of any trademark claim.
Trademark is a very strange beast. It is usually classed as "intellectual property," but it is not authorized by the Intellectual Property Clause (Article I, § 8, cl. 8) of the Constitution. It arose as a consumer-protection statute (with elements of protection for the holder from unfair competition and counterfeiting) during the Renaissance, and by the time of the Enlightenment had begun its transformation from a public right—originally enforced by the criminal authorities, in fact—to a property-like right. If trademark is "property" it is more like a freehold than the term-for-years constructs of copyright and patent.
This episode of Extreme Esoterica brought to you without benefit of caffeine.
it is not authorized by the Intellectual Property Clause (Article I, § 8, cl. 8) of the Constitution
Well, keep in mind that said article isn't "the Intellectual Property clause", because it doesn't mention the phrase "Intellectual Property". That phrase is a much more recent invention (1970's I think). It's a "copyright/patent" clause, or (my preference) a "To Promote Progress in Science and Useful Arts" clause.
I prefer the last one because when people argue that copyright or patent exists so that someone can make money, it's good to go back to the original clause in teh constitution and point out: No, it isn't.
Aren't trademarks supposed to be limited in scope?
Yes. There was a music company a long time ago called "Apple". When Apple (tm) Computers came along, there was a big battle over who could have the "Apple" trademark. The result was that "Apple Music" would be used by the original music company, and "Apple Computers" would be used by the new computer company.
And they lived together in harmony for a while.
Then Apple started the whole iTunes/iPod business, and the original "Apple Music" company complained of the broken treaty.
I don't know what exactly happened, but Apple computer company is still selling music, but I think they settled it by making sure they don't put "Apple" and "Music" next to each other on their website.
So, I think DC/Marvel are overextending themselves a bit here. However, since it would take a successful lawsuit to change that, and since I don't have the money, it is just my opinion. I am not a lawyer. This is not legal advice. I do not have the finances to support a lawsuit. blah blah blah.
Re: Corporations as sociopaths -- I'm gathering that the problem perceived with corporations isn't their existence (I think we all grant that there are endeavors too big for one person or a small group of people who trust each other), but the liability limitation. I have to ask, then: has anyone here tried to imagine a modern-day world with modern-day legal culture without limited liability?
I'm trying now, and it isn't pretty. The corporate veil doesn't just apply to executives. If I get the wrong product in the mail, I can track down the guy who took my order on the phone and take him to small claims court. If my new car's transmission goes out, I could set out to ruin the lives of everyone on shift in the factory that day. If I don't understand the instructions for my VCR, I sue the guy who wrote the manual. And if the siding on my house turns out to be crap, I arrest the guy who installed it as an accomplice.
The only winners I can see in this scenario are the insurance companies, because everyone will be required to carry umbrella liability insurance -- it'll be as important as health insurance. Only they'll find it very hard to find staff, because the customer service representatives will probably get named in every lawsuit for giving confusing coverage information over the phone.
I sense that there's a middle ground here, but I'm not smart enough to figure out what it is. I don't think it's "Only hold the executives liable" -- it isn't really fair to them either to lose their houses because somebody thinks their iPod headphones are too loud. There are already exceptions to the corporate veil for egregious misconduct -- perhaps that should simply be better enforced? I don't know.
If anyone has a better idea, I'd love to hear it. I'm not being rhetorical. I seriously can't think of any way to achieve most of the cool stuff of the past century without structures that allow very large groups to pool effort without fear of major personal reprisal for minor work errors. It may be that we just have to put up with sociopathic corporations -- and keep them away from our daughters.
One followup thought: if corporations are sociopaths, what are governments?
You can at least sue a corporation and sometimes win.
Uh, governments are enablers?
Steve --
The problem isn't limited libability for the corporation; it's on the one hand, no liability for the officers of the corporation, and granting full individual human rights to corportations, on the other.
Making the officers of the corporation personally criminally liable for criminal acts undertaken by the corporation would be a help, but what's really important is to get the constitutional amendment that says 'corporations are not natural persons, and do not have the rights of natural persons. In specific, no corporation at any time possesses any civil right; no right of privacy, no right of freedom from search, no right of free speech, and no rights of representation, assembly, or to petition for redress from grievance'.
The longer term problem of producing a corporate model that's not an unaccountable autocracy -- and pretty much all the widely adopted models out there are just that -- will help, but so long as you've got a large, rich entity that has all of the rights and none of the responsibilities, combined with a naturally autocratic form of organization, they're a profound threat to personal liberty and representative government.
Steve,
I don't think it's the liability protection that is considered the problem. I think its more when the individuals within a corporation act in a criminal way, it seems like it is almost impossible to prosecute the individuals. The short history of tobacco companies seems to say that, yeah, even though the individuals in the corporation knew they were making an addictive product that killed people, even though they hid that information, even though they spiked their product to make it more addictive, even though these individuals did all that, none of them will ever be held accountable as individuals. The company is held responsible for the acts of the individual.
This means, essentially, that a corporation is a "commons" to the individuals who are part of it. And that means corporations will tend to commit the "Tragedy of the commons". But rather than have individuals over-fish a commonly shared ocean and all suffer, you have individuals over-greeding a commonly held company, and the shareholders suffer.
The tragedy of teh commons happens because individuals do not pay the full price of their actions. That payment is spread out over all those who share the commons.
What I think needs to be done to fix this is that corporations need to retain their basic financial firewall: shareholders who own part of the company can only be held financially liable for the money they put into their shares.
For financial matters, such as a corporation borrowing money to build a factory, if the corporation defaults on the loan, then the personal assets of shareholders are protected from the loan collectors.
But when things go beyond the mere financial, when individuals within a corporation begin to act in a way that would get an individual thrown in jail, or at the very least, held personally accountable for their actions, then the corporation cannot be used as a shield to protect them.
Corporations should also be completely prohibited from making any sort of political donations, political lobbying, political advertising, etc. Individuals can lobby and donate, but corporations should be stripped of any political influence. Corporations have no right to free speech. people do.
C.E. Petit notes:
The original version of Dungeons & Dragons used the term "superhero" as the "level title" for eighth-level fighters in 1974, and my hazy recollection is that such a use was inherited from predecessor games (my copy of Chainmail is in storage, so I can't check it).
Yes, the Chainmail fantasy supplement section had superheroes. Single-figure units that could kick tremendous ass. Probably not the spandex-wearing kind, however. I believe they represented guys like Conan.
Conan, certainly. I don't recall if there were any similar characters from the sword-&-sworcery literature that was available in the early seventies.
I sold off two sets of Chainmail rules a couple of years ago. Amazing what they went for....
Stefan, Chainmail was the original game, a mostly medieval wargame played with miniatures, which had assorted significant individuals.
Dungeons & Dragons started as a supplement to Chainmail, and the combat system was almost incomprehensible without access to those rules. So everybody and their dog tried to write their own combat system.
Just to drive everyone crazy (but I really do think it's a better name), I moved the blog that started this to Captain Copyfight. I like copyleft, but it's only part of the solution.
And I promise not to change the address again.
I added a copy of the accepted trademark to my post on the origin of "superhero."
Stefan is correct in that Chainmail had a fantasy-oriented section at the end of the rules booklet. I've never played D&D, though; did Chainmail have much of an influence on it? (I kn ow that Gygax was involved with both.)
Just an oddball caveat to the discussion:
Trademark validity doesn't neccessarily hinge on when a word came into use. "Apple" came into use long before "Apple Computers" or "Apple Music" decided to use it to identify their individual businesses.
In the case of DC/Marvel and "Super Hero", though, they appear to be attempting to trademark the word "Apple" to describe an edible fruit with a red skin. i.e. they trademarked a word for its common meaning, not a word to identify their particular product or company.
So, while trademark allows already existing words to be used to identify a company or its products, trademark cannot be claimed on the common, universal meaning of the word. You can trademark "Apple" for your computers, but you can't trademark "apple" and take every fruit seller to court.
So, the point of establishing when "Super Hero" was first used is to establish that mankind named the fruit "apple" first, then Marvel/DC attempted to trademark the word when used to describe the fruit.
When I think of it that way, it becomes abundantly clear that any judge (or bureaucrat in the trademark office) who ever supported DC/marvel in this nonsense should be slapped around for a while.
It is entirely equivalent to DC/Marvel going to the trademark office and saying:
"Yeah, we'd like to trademark the phrase 'comic book' to describe our particular product."
An existing term with a common, universal meaning, and these guys want to put a lock on it and charge a usage fee.
Richard Anderson:
Uh, governments are enablers?
And a corporation isn't?
That's a nice computer you're using. I trust that it was assembled by a local craftsman using entirely homemade parts. Who was the artisan? I'd like to send a courier to commission one from him, after I've done my part on the treadmill for the local power co-op.
Richard:
Read what Dave wrote a few entries up.
I got into D&D when it was Chainmail, a box of three books in a brown box, and two supplements. (Actually, the set I eventually bought had a white box . . . the "brown box" set was so rare that it was accepted practice to buy photocopies.) I still have them all, signed by Gygax.
Yeah, these books had two parallel combat systems, one based on d20s and d6s and the other grafted on from the Chainmail miniatures rules. A "superhero" was the equivalent of something like eight normal figures, each of which represented x men.
* * *
To make this vaguely topical: TSR got into trouble with copyright matters early on. D&D mentioned hobbits. One of their supplements referenced Lovecraft material by name. And they had a miniatures rules book, now fabulously rare, based on ERB's Mars critters. (And the monster statistic charts in the original D&D rules listed Martian monsters.)
Geez, Steve, I knew I should've added ": )" after my comment.
I'm intrigued, though, with Graydon's point: that corporations represent a "profound threat to personal liberty and representative government." It's hard for me to see how an indirect threat -- corporations, after all, cannot vote -- can also be a "profound" threat. Corporations can certainly try to influence the democratic process through lobbying and campaign contributions, but these are actions that organizations undertake irrespective of their corporate structure.
Stefan, I recognize that I might've vaporized many brain cells over the last three decades, but I'm positive that the original Chainmail was a single, unboxed book that had a yellow (goldenrod?) cover. I bought it at about the same time I bought Tractics, which was boxed, and Hardtack, which was likewise a single book.
Graydon:
...what's really important is to get the constitutional amendment that says 'corporations are not natural persons, and do not have the rights of natural persons. In specific, no corporation at any time possesses any civil right; no right of privacy, no right of freedom from search, no right of free speech, and no rights of representation, assembly, or to petition for redress from grievance'.
So your solution to make corporate fair is to ensure that they have no reliable ability to issue statements or publications, keep any information confidential, hold events, prosecute criminal or civil cases with cause, or keep people off their property. (It was quite generous of you, BTW, to leave them with the right to property.)
If you think the answer is to ban corporations, just say so. Wiping them out by stripping them of the ability to do anything is an inefficient way to go about it. Also totally unjustified.
...so long as you've got a large, rich entity that has all of the rights and none of the responsibilities, combined with a naturally autocratic form of organization, they're a profound threat to personal liberty and representative government.
It's completely wrong to say that corporations have no responsibilities. You can hold a corporation accountable for criminal and civil violations just as you can hold any individual accountable. Limited liability applies (when it applies) to the individuals within the corporation, not the corporation itself, which is treated as a natural person in court on either side -- plaintiff or defendant.
About the only thing the legal system can't do to a corporation that it can do to a person is throw it in jail. But it can put a stop to any and all corporate activities, which leads to a similar end result.
"I'm positive that the original Chainmail was a single, unboxed book that had a yellow (goldenrod?) cover."
Yes, Chainmail was a seperate product. There were several editions. The one I have is a spiral* bound digest size booklet with a silver cover.
You may have an earlier or later edition.
* Well, not spiral, but loose pages held together with one of those curled plastic things with tongues that fit in slots in the edges of the paper.
corporations, after all, cannot vote
I was going to give you a link for Common Cause's "Soft Money Laundromat", but it appears they've taken it down. Anyone know what the heck happened to it?
As long as corporations can donate soft money, they have direct influence in the political process.
Stefan: I think that's called "comb-bound."
You can hold a corporation accountable for criminal and civil violations just as you can hold any individual accountable.
But it isn't the same. When individuals who work for a corporation make immoral or illegal decisions, the corporation often seems to buffer them from personal prosecution.
All these accounting scandals and Martha Stewart is the one to go to jail? People on the boards of tobacco companies knew for years that their products were fatal but buried the information. Have any of these people been personally held responsible? Suing the company is not the same as arresting the lying bastard who did the deed.
Bad people are drawn to positions where they are removed from direct responsibility for their actions, where they can act with personal impunity, and corporations act as such a shield.
It is the attraction of Gyge's Ring that draw those who most want to abuse its power.
The original Chainmail rules, IIRC, were focused solely on miniatures and had zip to do with role-playing games. The fantasy section at that time focused on supplemental rules that would allow players to include sword-&-sworcery characters in battles. I bought the booklet around 1971 or '72, although I could be off by a year or two either way. Sounds as if later iterations represented a nascent D&D.
Greg, can't any organization give "soft money," irrespective of whether they're corporations? The issue of influence might relate more to size rather than structure.
Stefan Jones:
To make this vaguely topical: TSR got into trouble with copyright matters early on. D&D mentioned hobbits. One of their supplements referenced Lovecraft material by name. And they had a miniatures rules book, now fabulously rare, based on ERB's Mars critters. (And the monster statistic charts in the original D&D rules listed Martian monsters.)
And of course, in keeping with the Disneyesque circle of irony, after a strong period of growth and invention they spent more than a decade in a state of extreme copyright paranoia, suing anyone and anything who dared to publicly refer to D&D properties, post game material online, or interest people in playing it. (By that point the company was no longer run by people who played games.) This was actually a good stroke of luck for the rest of the role-playing industry, as a number of better and more original games thrived from smaller companies run by people who supported their fans.
To me the really amazing thing about D&D is that under Wizards of the Coast they seem to have at least partially gotten over that paranoia. D&D 3rd Edition and its rules system were released under an "open gaming license" that allows anyone in the world to freely copy, adapt, build on, or create entirely new games from their material, provided that they don't reveal:
1.) The exact steps for creating a character ("Pick a race and class, roll some ability scores, choose related stuff, write it all down"); or
2.) The exact methods for increasing a character's level from x to y ("Acquire x*1000 more experience points.")
Those two restrictions were supposed to make sure people had to buy the D&D Player's Handbook regardless of what game they were actually playing.
It sounds bizarre, but it worked. They've taken over the industry again, or what's left of it, and more and more classic games and settings are being converted to Wizards' d20 game system. I think that's a shame because a lot of the other systems were more fun, but I have to admit that the simplicity has made it easier for a lot of people to get back to the game.
Greg London:
As long as corporations can donate soft money, they have direct influence in the political process.
What you have just said is that people are stupid, and that their votes correlate with candidates' money. I fail to see how this is a structural or philosophical problem with corporations. Fix it at the governmental level by getting rid of soft money, or fix it at the personal level by making people less stupid.
But it isn't the same. When individuals who work for a corporation make immoral or illegal decisions, the corporation often seems to buffer them from personal prosecution.
Yes, Greg. That's what limited liability means. You said upthread that you didn't think liability protection was the problem.
It's also not absolute. The corporate veil can be pierced, although courts are not prone to do it lightly. It's why Lay and Skilling are on trial right now. They made illegal and immoral decisions and now they are personally dealing with the consequences. You could make a case that it doesn't happen often enough, or that the penalties aren't sufficiently stringent, but I would not agree that it's "almost impossible" as you said previously.
All these accounting scandals and Martha Stewart is the one to go to jail? People on the boards of tobacco companies knew for years that their products were fatal but buried the information.
You're conflating three different things here. Martha Stewart didn't go to jail for an accounting scandal, but for insider trading. And yes, executives in several of those companies were personally prosecuted for accounting malfeasance.
As for tobacco: if you can post here a list of the names of individuals who broke the law and what laws they broke, then perhaps that might shed a little light. I agree that it's one of the two or three most immoral industries on the planet, but you don't go to jail for being immoral or working for an immoral company. You go to jail for doing things that are illegal, and not every immoral act has a specific law against it. "They're scum, so they ought to be in jail" is an insupportable charge.
They've taken over the industry again, or what's left of it, and more and more classic games and settings are being converted to Wizards' d20 game system. I think that's a shame because a lot of the other systems were more fun, but I have to admit that the simplicity has made it easier for a lot of people to get back to the game.
"True, but. " There was a huge D20 boom for a while, which has now started to go bust.
A number of games which were essentially dead got brought back to life as D20 games. Which is, I guess, "classics".
A few games which may have been survivable [Call of Cthulhu comes to mind] got converted in the desire for money and influence.
[Semi-unsupported idealism may follow.]
The thing about gamers is, they're kitbashers by nature. So once they get back in the game, they say "D20+X isn't that great a mechanic." And they build or find another mechanic and use that instead.
And that's how every other RPG started, and that's how they're getting rediscovered.
I hope we don't have another round of fantasy heartbreakers.
(Warning: Ron Edwards does a LOT of framing. I'm not sure I buy his theories, but to argue them means redefining his language. )
What you have just said is that people are stupid, and that their votes correlate with candidates' money
And what you have just said is that campaigning has nothing to do with getting elected. If campaigning and campaign money have nothing to do with getting elected, then outlaw ALL donations, personal and corporate, as a waste of money. But to allow corporate campaign donations and to say "it doesn't effect the elections" simply says that you're full of shit.
That's what limited liability means. You said upthread that you didn't think liability protection was the problem.
I said upthread that I don't have a problem with limited financial liability. Meaning if you buy stock, you can't lose more money than your stock. That's about it. Anything other than that, and people should be held personally responsible for their actions.
You go to jail for doing things that are illegal, and not every immoral act has a specific law against it.
If you know that your product will kill people, one every 8 seconds is the current statistic I hear for tobacco, and YOU BURY THAT FACT WHILE SELLING YOUR PRODUCT FOR DECADES, should your company pay a lawsuit settlement, or should you go to jail?
I say you go to jail for shit like that.
But please, tell me how the corporate veil, which exists solely to encourage business and the BENEFITS it brings to the economy, should shield these kinds of assholes.
The corporate veil was created to encourage business for the benefits good business brings to the PUBLIC. Anyone who forgets that and thinks it should be a shield for ANY wrongdoing on the part of the corporate members is a f*ck*ng moron.
Even if you want to argue from the moronic position that selling a product that you KNOW will kill most of your customers is not illegal, that doesn't mean we should continue to treat the corporate veil as some sort of corporate RIGHT. It's a priveledge granted solely to bring an overall benefit to teh whole public. When it is treated as a right and benefits the corporations far more than it benefits teh PUBLIC, then the PUBLIC SHOULD REVOKE THE PRIVELEDGE.
"The corporate veil doesn't just apply to executives. If I get the wrong product in the mail, I can track down the guy who took my order on the phone and take him to small claims court."
There are two threads on the limited liability discussion, one argues about criminal penalties, one argues about civil penalties. What you are arguing about here are all civil penalties.
I for one think the corporation functions fine for civil penalties, what it does not do is function fine for transfering criminal penalties to the people making criminal decisions and using the corporation as a shield to do so. As per Greg's example of the cigarettes.
However that it does not function fine for transfering criminal penalties is, I think, basically a problem of will. If an enterprising DA had pressed second degree murder charges against various Tobacco executives would the corporate shield have been enough to stop him. I think not.
There have been criminal convictions in the U.S of corporate officers who committed crimes on behalf of the corporation, in some cases those crimes were crimes of instigation. Although generally these cases are few and far between, the penalties have been minimal, and it seems that if a crime gets laid at the feet of an employee the corporation seldomly suffers as much as it would if it were laid solely on the corporation.
Greg, I have to disagree with your comments on the IP Clause. Up above, you said:
"Well, keep in mind that said article isn't "the Intellectual Property clause", because it doesn't mention the phrase "Intellectual Property". That phrase is a much more recent invention (1970's I think). It's a "copyright/patent" clause, or (my preference) a "To Promote Progress in Science and Useful Arts" clause."
Quibble: The term "intellectual property" was used in the early part of the twentieth century, and probably well before then, to refer to copyright and patent law. The confusion comes because trademark law has since been imported into that general category in common usage, but not in constitutional authorization.
"I prefer the last one because when people argue that copyright or patent exists so that someone can make money, it's good to go back to the original clause in teh [sic] constitution and point out: No, it isn't."
Here we have a profound disagreement. The clause reads:
[The Congress shall have power...] To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
An "exclusive Right" is a monopoly; this is the same language as that used in the Statute of Monopolies from early 18th-century England. Under the Statute of Monopolies, the sole legal purpose for a monopoly (or letter patent) was to allow the holder to benefit economically. This is confirmed both by the way the clause is structured and by the debates recorded in Madison's notes and in the Federalist and Antifederalist Papers.
What is more interesting is that the IP Clause is the only power of Congress not related to military affairs that specifies both the means and the end of the grant of power.
C.E.
Copyright and patent law allows creators to make money off their works. But the reason copyrights and patents exist, the requirement they must meet to remain constitutionally acceptable, is that they must, in the end, Promote Progress of Science and the Useful Arts.
If they just let creators make money, but do nothing to promote science and the useful arts, then they are not constitutional. There was a supreme court ruling a few decades back that said exactly this. (I'll dig around for it)
So, when I said: "when people argue that copyright or patent exists so that someone can make money, it's good to go back to the original clause in teh [sic] constitution and point out: No, it isn't."
I was emphasizing the final measure of what makes it constitutional or not: i.e. that it must Promote Progress. It is not enough for creators to make money on their works for copyright or patent law to be constitutional. The overall question as to why copyright/patent law exists in the US is to promote progress, not make money. They promote progress by making money, but if they don't promote progress, if they only make money, then it doesn't meet the constitutional requirements.
Although generally these cases are few and far between, the penalties have been minimal, and it seems that if a crime gets laid at the feet of an employee the corporation seldomly suffers as much as it would if it were laid solely on the corporation.
I'm not convinced that prosecution of individuals is simply a "matter of will". I also have a problem with the above statement which seems to present personal accountability versus corporate accountability as an "either/or" situation. As if we have to choose to hold the corporation accountable, OR we hold the individual responsible.
I would have no problem seeing tobacco companies paying the fines that they've paid, and seeing a number of corporate officers thrown in jail for their actions. If it really is a matter of will, then why hasn't any DA's pursued past officers for their actions? It would seem that there has been a change of attitude towards tobacco. There is no statute of limitations for murder is there? I suppose it depends on the state you live in.
Greg, I'm curious as to which types of conceivably copyrightable property do not fall under the definition of promoting "the Progress of Science and the useful Arts."
Seems to me the reason for the "natural monopoly" provided by a copyright (or patent) is to create the financial incentive that's usually needed for the person doing the inventing. Might it be that copyright becomes meaningless without the making of money?
Richard,
One example is software patents. They do not promote progress, in the sense of requiring people discover something new about the world to get a patent, they only require someone take an already existing process and hook a computer up to do what had previously been done by mechanical components. Software patents also are more of an inhibition to software development, rather than Promoting Progress in software devlopment, because patents are 20 years and are completely insurmountable from a functionality point of view. While copyright protects the specific code that Microsoft wrote, it allows Linux to write functionally equivalent code, as long as Linux does it on their own, without using Microsoft's expression. Software patents mean that once Microsoft patents their software, Linux cannot implement functionally equivalent software no matter what, for 20 years.
There was a case before the supreme court in 1981 that granted the first software patent. The dissenting view written by one judge was clear that the particular application showed no Promoting of Progress, and that software patents in general appear to be completely unwarranted based on the progress being made without them.
"The broad question whether computer programs should be given patent protection involves policy considerations that this Court is not authorized to address. ... That question is not only difficult and important, but apparently also one that may be affected by institutional bias. ... Industry representatives have taken positions properly motivated by their economic self-interest. Notwithstanding fervent argument that patent protection is essential for the growth of the software industry, commentators have noted that "this industry is growing by leaps and bounds without it."
http://www.digital-law-online.com/cases/209PQ1.htm
That would be one example of IP law that I say does not meet the constitutional requirement of Promoting Progress in Science and the Useful Arts.
The anti-circumvention clause of teh Digital Millenium Copyright Act is another, disallowing fair use copying, preventing reverse engineering, and generally granting far too powerful of a monopoly to the copyright holder.
Another would be the Copyright Term Extension Act. Copyrigth terms are so F-ing long right now that they have reached the point that Progress is not only not promoted, but it is actively stiffled. Works that would have entered the Public Domain decades ago, have remained protected under copyright because terms have been extended and re-extended.
How is that for starters?
Steve Eley: One followup thought: if corporations are sociopaths, what are governments?
You can at least sue a corporation and sometimes win.
Yes, and you can also sue a government; your chances of winning relate to the size of the entity, not just its public position. cf local news:
* The least-known Bulger (John) lost a suit to get back his pension, taken because he perjured himself about his criminal brother (Whitey). The court ruled that it was his job as court clerk to ensure the validity of oaths, so the perjury was job-related malfeasance; \but/
* His famous brother Billy (formerly state senator, formerly UMass boss) has so far won his suit to have his housing allowance included in the salary his pension is based on. (This is still being appealed, but there's no guarantee he will lose.)
Greg: You're forgetting, inter alia, the definition of murder (requires intent) and your arguments on a neighboring thread about what constitutes knowledge.
The rules for college athletics encourage proper behavior by penalizing the program (sometimes severely) for violations of the recruiting rules. Corporations do get severely fined (although the Bush administration has done a good job of not collecting the judgments), and some are even destroyed by their misbehavior (heard of Arthur Anderson recently?).
You're forgetting, inter alia, the definition of murder (requires intent)
I was a jury member on a murder/attempted murder trial a couple of months ago. What I recall seems to say that if a guy knows that his product will kill people and he hides this information and sells his product, then the DA could argue that intent was present. It may not stick, but having seen a jury on a murder trial in actual progress, I can tell you that it just might. If the DA wanted to improve his odds, he could probably try for something like manslaughter. manslaughter wasn't a charge in our trial, so I'm not as familiar with it, but I don't think intent is needed, just recklessness. and that should fly. Then bring him up on multiple counts, one for each death that you can track down, and you've got an interesting case.
Only question is would the tobacco company make some fat soft-money donations to the state governor, and then the govorner pull the DA off the case.
There was that anti-trust case that Microsoft lost, and a big fat fine they had to pay, but when "W" came into power, they made a fat donation, and surprise, they never pursued collection.
Greg, thanks for the response. My only difficulty is that according to the case you cite, the Supreme Court indeed found software patents to be constitutional. To be more precise in my language: I'm wondering which types of conceivably copyrightable property have been legally determined to not promote "the Progress of Science and the useful Arts."
That's Arthur Andersen. Please don't tarnish the family name!
Richard, if the law has been determined to be unconstitutional, it has already been struck down, and it isn't a concern of mine anymore. I have a problem with several current laws that I believe do NOT promote progress. If you want some laws that have been legally determined to not promote progress, I'd have to check the history books.
I do know that there were a number of cases prior to the 1981 software patent case that reinforced the position that mathematics, logic, and software could not be patented. I believe they were usually in the form of Guy applied for software patent, patent office turned him down, guy appeals to court, court sides with patent office.
There is nothing different in teh 1981 case that justifies a change of course. The dissenting opinion says that the application is similar to another case that was rejected some years prior.
The 1981 decision allowed people to get patents for software that was connected to physical processes.
Then Bruce Lehman was appointed patent commissioner by Clinton, and his first bureaucratic act was to decree that the patent office would accept software patents of any kind. The guy made his living off of software companies before being appointed the position, and he ended up getting paid lots of money by them after.
I recall something vaguely about one of the first court cases that determined that copyright law could not be interpreted as a strict exclusive right to the author. Other people had a right to Fair Use of a copyrighted work. It was a case way before VCR's or photocopiers or any electornic gizmo affecting copyright came about, and had somethign to do with one author quoting bits of another author's book without permission. The courts found that the law, which didn't allow fair use, nonetheless must allow it because Progress required it. Criticism, parody, and educational uses demanded Fair Use of copyrighted works.
Some time much later, examples of "Fair Use" were then codified into the law (I can't recall the exact year)
Most of the Court's history around copyright shows the courts expanding what was allowed by Fair Use. The Betamax decision being a famous exmample. copyright holders argued that the law did not allow people to copy TV shows with their VCR's. The courts disagreed, saying it would be too much of a monopoly.
That's all I cna think of off the top of my head.
Supreme Court indeed found software patents to be constitutional.
They found software, when connected to a physical process, to be patentable. In this particular case it was software controlling a rubber-curing machine. The machine didn't actually do anything new with the curing process. nothing new about rubber-curing had been discovered. All teh applicant did was take an existing process that had been done mechanically and replace some mechanics with software.
I don't know if teh courts have ever weighed in on the "Promote Progress" question with regard to software patents. And as time passes, I believe evidence is accumulating to show that it doesn't, and at some point, the Supreme court may reverse its position.
One can only hope.
Greg, the Lempel-Ziv-Welch compression algorithm was granted a patent in 1981, so clearly the patent office was granting software/math patents before Bruce Lehman came on board.
And I have a hard time seeing LZW compression as "someone tak[ing] an already existing process and hook[ing] a computer up to do what had previously been done by mechanical components."
In his own bio, Lehman brags
Lehman worked for nine years in the U.S. House of Representatives as counsel to the Committee on the Judiciary and chief counsel to the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. Lehman was the Committee's principal legal adviser in the drafting of the 1976 Copyright Act, the 1980 Computer Software Amendments, and 1982 Amendments to the Patent Laws.
So, don't tell me he wasn't sticking his fingers in the pie in 1981. He admits working on computer software amendments in 1980.
Just checked the OED SF Citation Project, and the earliest reference to "superhero" was a 1942 issue of Supersnipe Comics -- which is a product of neither Marvel or DC.
Of course, Disney used the word "superhero" in last summer's movie Sky High (and they've got those kids on contract for sequels or a possible TV spinoff), so it could be a battle of the titans.
Lis, yup. People with deep pockets might pay Marvel and DC to use "superhero." But I think the greater benefit to having the word is making life tougher for the competition. It's a little as if Pepsi and Coke decided to trademark Cola.
After moving to Captain Copyfight, I thought someone might want the original SuperUnderwearPERvertHERO address. So I'm eBaying it to benefit Creative Commons.
You're forgetting, inter alia, the definition of murder (requires intent)
What is intended can vary or the intent can be imputed. Consider the Colorado case in which a woman was convicted for a murder committed by a co-conspirator while she was in police custody - IIRC subsequently reversed on some ground and a new trial granted. Consider also felony cases in which the intent to get drunk or to use drugs was sufficient intent for a finding of intent to murder - that is no lack of mens rea and a general disinclination to allow bad actors to argue lack of capacity to form the intent when the lack of capacity was self induced. The general topic is larded with cases distinguished on the facts.(obs SF Larry Niven and going off medication from an auto-doc)
Further criminal law is very much a matter of local law and personal jurisdiction, for purposes of criminal law, on a bad actor in an out of state corporation can be hard to establish. Consider arguendo that criminal liability properly lies for tobacco in the examples mentioned supra - given a smoker's death in Alaska it seems unlikely that Alaska could claim criminal jurisdiction on a researcher/executive in the tobacco country or a man in a gray flannel suit in New York.
The Wild Bunch as well as the Pinkertons had a naturally autocratic form of organization and could be called a profound threat to personal liberty and representative government. cf the Barbary Pirates or robber barons both old and new style.
Lis, yup. People with deep pockets might pay Marvel and DC to use "superhero."
Actually, I rather assumed Disney would fight like the dickens to avoid paying any royalties, thus breaking the trademark for the good of all.
Lis, pirates understand self-interest. Disney will sidestep "superhero" or they'll pay to license it for the same reason the Democrats will lose repeatedly in the Electoral College and do nothing to change it.
Patrick, I don't think corporations are compelled to engage in sociopathic behavior. They get too much slack for doing so, but that's a much milder claim.
Even though corporations are supposed to seek profit as thoroughly as possible, no one really knows how to do that. Costo isn't getting sued or otherwise legally punished for treating its employees better than Walmart.
I said:
"Although generally these cases are few and far between, the penalties have been minimal, and it seems that if a crime gets laid at the feet of an employee the corporation seldomly suffers as much as it would if it were laid solely on the corporation. "
Greg says:
"
I'm not convinced that prosecution of individuals is simply a "matter of will". I also have a problem with the above statement which seems to present personal accountability versus corporate accountability as an "either/or" situation. "
I repeat:
"and it seems that if a crime gets laid at the feet of an employee the corporation seldomly suffers as much as it would if it were laid solely on the corporation. "
With explanation that I have a hard time seeing as at all necessary:
My statement of 'it seems' means that in examining the current state of such prosecutions in the U.S then all indications are that the system is set up to make the either/or distinction you complain of. It should be evident that I am not making an eithor/or distinction as a matter of logic or morality, but as a matter of real world observation.
As for the matter of will it was noted in the recent Sony DRM case by an expert in Computer law that Sony could be prosecuted under federal anti-hacking statutes, but that this would never happen to a major corporation. This strikes me as a 'matter of will' problem.
As for the intent problem of murder, it might be difficult to get a Second Degree Murder conviction in the tobacco case (which was what I recommended), however it is common in the U.S to overstate the case slightly and plea-bargain down to what the actual outcome would be, in other words: Manslaughter.
If Disney grabbed Victor Hugo's THE HUNCHBACK OF THE NOTRE DAME and turned it into "Disney's The Hunchback of Notre Dame(tm)"... maybe that's what the corporation will continue to do with every single work of literature that goes into the Public Domain over time!
I think it's more likely that they'll just keep doing all they can to stop any work every going into the public domain ever again.
Greg, I'm afraid you've gone overboard. Only the statute (or other exercise of Congress's power) must promote progress—not every individual attempt by an author or inventor to avail him/herself of the statute's advantages. (And don't bother looking up that case—it's since been abrogated.) What that means is that the statute does not become unconstitutional because it is possible for an individual "beneficiary" to twist it to a purpose that is arguably inconsistent with the mandated purpose. It might be dumb; it might be overreaching; courts might need to reign in such excesses under Article III (the "judicial power"); it might well create treaty problems (see Article II); but it doesn't exceed Congress's powers under the US Constitution.
Although this sounds like it's splitting hairs, it runs into a critical difference between our constitutional system and its European ancestors. The US Constitution is founded on the idea of simultaneously granting and limiting government power while reserving all other discretion to individuals. In this context, that means that Congress has the power to establish an IP system that gives individuals exclusive rights over their innovations for a limited time. Note, though, that it doesn't give anyone rights through crown fiat. I'm afraid that your position depends upon the latter view, which is inconsistent with the constitutional premises. (And I'm signing off at this point because things have gone too far afield in this particular topic; this is an area in which I do scholarly legal work, so I'd like to think I know a little bit about it, but Greg is entitled to continue being wrong ;-) .)
Only the statute (or other exercise of Congress's power) must promote progress—not every individual attempt by an author or inventor
I was talking about the statutes, not the individuals. There are a number of IP laws currently in place that inhibit progress rather than promote it. copyright terms are continuously extended, preventing any derivatives from becomeing freely available. software patents are a farce. and the anti-circumvention clause in the DMCA grants powers that would make a railroad baron salivate. These laws inhibit progress, but the constitution demands that they promote it, so they are unconstitutional.
Normally I wouldn't mind the "entitled to be wrong" swipe so much, but it's just that you fabricated my entire position.
Some Court decisions around IP law having to satisfy the constitution's requirement that the law must Promote Progress:
1882 - Atlantic Works v. Brady - The Supreme Court rules in a Patent case that a Patent cannot be an obvious extension of already existing Inventions and Discoveries. If insignificant discoveries are patented, it actually IMPEDES PROGRESS, not PROMOTES it.
"It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends to obstruct rather than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith."
1966 – Graham v. John Deere – The Supreme Court ruled that the incentive system of patents is constitutional only to the extent that it promotes progress. Awarding patents simply because someone can make a profit on it is unconstitutional.
"Congress, in the exercise of the patent power, may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to , or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must "promote the Progress of useful Arts." This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity requires reference to a standard written into the Constitution."
Richard,
My last post above, with the two Court cases, are partial answers to your question.
my link got mangled. seeing if this one works.
People have mentioned TSR, but the true victim of the roleplaying games was Champions, which was (and still is) the best comic book roleplaying system in print.
But it is "The Super Roleplaying Game" because they could not use the term "superhero" in the title because they got a cease & desist letter from Marvel/DC claiming ownership of the term. This was years before either company had their own licensed product on the market, which was allowed to use the term.
Lawrence Watt Evans:
"I'm fairly sure Frederic Wertham didn't use the term "superhero" in Seduction of the Innocent; I don't know if he might have somewhere else."
For anyone interested, Wertham uses "superheroic" once, but not superhero (or super hero, or super-hero):
"The normal concept for a boy is to wish to become a man, not a superman, and to live with a girl rather than with a superheroic he-man."
I've tried to read the whole thing, but his assertions about women drive me insane.
Joanna, that reads as though Wertham would be frothing at the mouth over Batman/Robin slash.
Is Wertham's language expressing a view that might be behind all those improbably top-heavy spandex-clad women?
Not to be cheeky, but slash fiction was probably exactly what Wertham had on his mind: on the issue of sidekicks,
"Even when Wonder Woman adopts a girl there are Lesbian overtones."
Dave Bell: "Is Wertham's language expressing a view that might be behind all those improbably top-heavy spandex-clad women?"
Wertham on superwomen: "They do not work. They are not homemakers. They do not bring up a family. Mother-love is entirely absent." (He intends this as a criticism).
IMO, this and the "I don't know many ladies" mentality that leads to the spandex clad superwomen are two sides of the same coin.
I don't know if there are any legal implications, but there was an early RPG with "superhero" actually in the title: Superhero 2044.
Ah!, the one death penalty that I could support; the corporate death penalty.