The Future of Intellectual Property on the Internet

Eric Goldman, Epinions, Inc.

 

1.                  Patents

 

        The patent process is broken: monopolistic burden-shifting based on registration-style review, and defendants incur major costs

        The PTO has made recent changes to tighten up the review (better searches, more review)

        Internet business methods are indistinguishable from business practices

        The future:

(1)    Convert the patent system to a registration system, but weaken the benefits of a patent; or

(2)    Raise the bar for issuance of patents, or

(3)    Limit the scope of patenting business practices, or

(4)    Expect idiosyncratic individual benefits and bad societal results (land grabs, extortion)

 

2.                  Trade Secrets

 

        The abuse of NDAs and confidentiality clauses

        The inevitable disclosure doctrine as an anti-competitive device

 

3.                  Trademarks and Domain Names

 

        The paramount importance of branding?

        The death of branding?

        Which is the bigger asset: domain names or trademarks?

        Namespace crowding

        The future:

(1)    Many years of continued confusion as the Internet overlays geographic- and industry-based trademarks

(2)    Then, crowded namespaces will lead to complex trademarks or an active secondary market

 

4.                  Copyrights

 

        The Internet is the perfect machine for infringing copyrights

        Users have become socialized to make microinfringements

        Companies make rational business decisions to infringe

        Diagonal competition has driven the marginal pricing of many copyrighted works to zero

        Technology exists to meter/control copyright usage, but itís not widely adopted

        Distributed technology has made enforcement impossible

        Copyright owners continue to look for intermediaries to hold responsible

        The future:

(1)    Users grow accustomed to ignoring copyright law

(2)    Entire copyright-based industries are exposed as manufacturing and distribution operations and thus rearchitected

(3)    Distributed technology makes it impossible to control copyrights

(4)    Ancillary sales become a core revenue stream, thus reinforcing the importance of branding

 

5.                  Factual Information

 

        Today, factual databases can be protected through a patchwork quilt of laws: trade secret, hot news, copyright, contracts and trespass

        Special interests continue to lobby Congress for more protection

        The trespass doctrine is just beginning to be explored as an intellectual property synthetic

        The future:

(1)    Data aggregation industries will likely be rearchitected

(2)    As more firms realize the value of unprotectable information, trespass will be a strong alternative to new legislation

 

 

About the Speaker: Eric Goldman is General Counsel of Epinions (http://www.epinions.com), a leading website for trusted consumer advice, ratings and reviews, and an adjunct professor of cyberspace law at Santa Clara University School of Law.He was formerly an attorney at Cooley Godward LLP, Palo Alto, CA.He can be reached at eric@epinions.com.