Trademark thought experiment: when should intermediaries be cops? (Barista vs. Barbie)

A little trademark thought-experiment: under a proposed UN treaty, Internet Service Providers (as well as search engines, social media sites, online auctions, online games, and sites like Etsy and Thingiverse) will be responsible for detecting and interdicting trademark infringement and helping punish infringers by retaining and providing their personal information on demand from a trademark holder, without a court order.

Now, many coffee shops today are ISPs (that is, one of the kinds of intermediary targetted by this proposal). And many coffee shops today are the locus of trademark infringement -- say, when you walk in with your kid clutching a fake Barbie from a stalls market or a blanket in Santee Alley or on Broadway. If you applied this intermediary liability standard to the real world, every barista would have to be on the lookout for this kind of trademark infringement. If someone in the shop were to say, "Hey, I work for Mattel, and that Barbie's a fake!" it would be the barista's duty to leap over the counter and take away the fake Barbie.

But her responsibility wouldn't stop there: her employer would have to set up cameras and cash-register logs so that they could identify infringers later. So after you left with your kid (who is by now in tears, screaming for her lost Barbie) (or "Barbie") the barista would have to pull your name off your credit card receipt and hand it over to the random dude who says he works for Mattel, without seeing any ID (much less a court order). And she'd have to print out the photos and turn them over too.

Or she could refuse -- but if she's wrong and the Mattel guy is right, well, her boss will be on the hook for the trademark infringement, too. The barista had better be some trademark expert if she plans on refusing the request.

Many institutions are "intermediaries" for bad acts: kids ride the subway to parties where they drink before they're legally allowed to; is it the transit authority's job to police alcohol laws? Cruel pet owners hit their dogs with rolled up newspapers; adulterers meet in hotels; fraudsters use telephones, pens, photocopiers and envelopes. All these criminal acts are not subject to policing by intermediaries -- why should one industry's civil actions be the entire world's responsibility?


(Image: Abandoned Barbie, a Creative Commons Attribution (2.0) image from derekgavey's photostream)


  1. Responsibility for the criminal act should rest only with the perpetrator of the act. Responsibility for recognizing the criminal act, identifying the perpetrator, and reporting them to the authorities should rest only with the party whose rights/property were infringed upon.

    The end.

    1. Hmm, so then I should be able to set up a web site where I encourage people to upload copyrighted music, movies, and software (that, of course, they don’t own the rights to), and then charge other people to download them?

      And, of course, it’s not my responsibility to do anything about it when the rights holders complain – why would I when I’m making millions? And of course I don’t keep any logs of who uploaded what.

      That’s all perfectly ethical?

  2. The hotel is an especially good example. Imagine the kind of illegal things happening in hotel rooms.

  3. All I can say is that they’d better be hiring some tougher baristas, ’cause they’ll have to pry my counterfeit Barbie out of my cold, dead fingers! Bring it, coffee-slinger!

    Just how ridiculous does this have to get before Big Media gets hit with the Clue Stick?

  4. I guess the argument is that traditional ISPs already have this data, so why not make law enforcement easier? Aren’t we all on the same team? Don’t we want to protect the jobs of content producers? Perhaps you could think of it like when cops call up the phone company and get the name and address of a phone number. Do they need a court order for that?

    (Do not take this as my personal view. I’m just trying to think of how the legislators justify this in their minds).

    1. > when cops call up the phone company and get the name and address of a phone number. Do they need a court order for that?

      I sure as fuck hope so.

      1. nope they don’t – its called the phone book or reverse lookup. They do need an order to wiretap (or did depending on your jurisdiction) to determine if it is being used for illegal activity and they have to give the judge reasonable cause i.e. conspiracy…

  5. ‘YOU are using MY internet without my permission! I demand you cease and desist using my internet, or I will have my lawyers sue yer ass!”

  6. So where are the lobbyists, industry schoomzers and monitary influence for Google, Yahoo, Ebay/PayPal, AT&T, and other Intermediaries? I would think they might want to exert a little influence of their own if it means they’re going to have to dump so much time, effort, and money into policing their own content?

    Would some of the world largest and most lucrative companies allow themselves to be held liable for having to monitor everything that goes through them?

    I’m sold the idea is ridiculous. But I’m not sure the comparison is too apt. The coffee shop is not helping the child find the “Barbie” or participating in its sale. It’s also not known whether or not the “Barbie” in question is convincing enough to pass for legitimate and believable Mattel merchandise. That is, unless the cork board on the back wall invited patrons out to a street sale where those illicit toys were being sold as knockoffs for deep discount or maybe one of the barristas there is selling them out of the shop for some extra spending money with or without the owners explicit knowledge. Okay, nevermind, it’s a Trenta of crazy.

    1. “So where are the lobbyists, industry schoomzers and monitary influence for Google, Yahoo, Ebay/PayPal, AT&T, and other Intermediaries?”

      They are certainly not absent, and the reason why we don’t have a million ‘n one laws like this already dictated by the likes of the RIAA/MPAA (aka MAFIAA) is because they usually get completely shot down. Many of them get shot down by ISPs on the grounds that what is being asked for is actually completely unpossible, but over the past few years, Google has probably done more than anyone in terms of protecting the internet from being taken over by Intellectual Property protection rackets. Not necessarily out of ambivalence, but their interests are aligned with the peoples’ a lot more than the MAFIAA et al.

  7. provoking analogies but a little simplistic. I think some of the issue relates to if the coffee shop was allowing a black market merchant to “sell” the fake barbies “in” the store – thus facilitating a breach of copyright. Same with the subway example if the teenagers were drinking “in” the subway.

    I agree that the ISP’s being liable for policing is heavy handed but I think the issue is facilitating.

    The fraudsters using a telephone is a much better example. The telephone companies are subject to court orders and so should the ISP’s. If the court order rule is lifted for the ISP’s then it also should for the telephone companies – let them try that one…

    If the hotel was allowing a bawdy house to operate they would be liable. I don’t think the cops need a search warrant to stop a john in the hallway or a hooker when leaving the room but it clearly is not the hotel’s legal responsibility to police what is happening within the rooms, unless they are made aware of the illegal activity in which case they would need to evict the tenant.

    The dog one is a little over the edge…

  8. Once upon a time, wiretapping someone’s phone required a court order. Back then, there was a concept called “unreasonable search and seizure”, which meant a cop couldn’t take your iPod unless he had a legally defensible reason.

    I’m so glad we’re all Freerâ„¢ now.

  9. Actually, you know what?

    You see someone selling crack to a 14yr old kid on the train, then yes I say you (&, by extension, the conductor etc) ARE under a moral obligation to do something about it.

    That hotel should do it’s best to make sure random loonies arn’t chopping hookers into bite sized bits in their hotel rooms.

    You see someone beating the tar out of their dog in the street? Bloody well help the dog.

    The world has become a place where nobody actually gives a shit about right & wrong anymore, so everyone says it is someone elses’ responsibily and nobody actually helps.


  10. I’m definitely in agreement that it’s crazy that ISP’s should be responsible for the content accessed on there network. The next, fair, step in this concept would be to say that if you provide infrastructure, you are responsible for all possible uses of your infrastructure.
    Take this example into the transport industry and manufacturers of vehicles or Governments who fund the constructions of roads should be liable if you use their infrastructure to get illegal goods. Use your car to drive to a an illegal gun sale- and suddenly Ford or the toll booth operator is liable for facilitating your access to criminal weapons and should be liable in a court of war!
    That said, the counter point, which most people are happy to ignore, is that copyright infringement is bad. For better or worse, copyright exists – and many people (artist’s included) want it to exist so that people are rewards for creativity. If you accept this to be true, then I think the better question for social and technology engineers is how to prevent these crimes? If not at the ISP level, what better way?
    Once upon a time, crime had a physical factor, and could be identified by observation and proven (more or less) through verbal description of the physical act. Now that things are digital, how do we legitimately stop theft? And just in case you claim it’s not theft, because it’s digital and nothing is “lost” – step into the future, when you DNA is available in a big old torrent and someone steals that (the ultimate bit of data) and clones you- do you not want to prevent that, even if the replica isn’t you, but, for all intents are purposes, is the same as you?

    1. “do you not want to prevent that, even if the replica isn’t you, but, for all intents are purposes, is the same as you?”

      Don’t be ridiculous. If she doesn’t share my values and memories, she isn’t me. I don’t see why I should be worried about somebody else sharing the same DNA. Identical twins share a lot more than the same DNA – the usually share the same uterine environment, the same parents, the same neighborhood growing up, etc. and they remain distinct people.

      “That said, the counter point, which most people are happy to ignore, is that copyright infringement is bad.”

      I don’t find this claim plausible either.

  11. I would pull the coffee shop altogether and make it a supermarket that’s selling both genuine and fake Barbies.

  12. There is nothing *to* discuss. It is painfully clear that holding such intermediaries responsible for such policing and enforcement is insane. And yes, this applies to copyright as well.

    The way we approach copyright is insane. The thought experiment makes this abundantly clear. Monied interests, however, hold the power and are allowed to force this insanity on others. That is the problem that needs to be discussed. Good luck with that.

  13. What do you mean “adulterers meet in hotels”? Are there any countries that are not fundamentalistic islamic countries, where adultery is a crime?

    1. Yeah, I wasn’t aware adultery was a crime. Then why isn’t (insert favourite celebrity here) in jail?

  14. Imagine if [likely scenario].
    Now imagine if [fairly unlikely scenario with tenuous link to first scenario].
    Now imagine if [wandering into batsh*t insane territory.]
    And now imagine if [bow drawn so far its atomic structure breaks down].


    1. Exactly! Haven’t we learned by now that solid-world metaphors just don’t work when applied to virtual space?

      Any minute now and someone will start comparing this all to cars.

  15. I think the people involved hope to kill two birds with one stone:

    1. First, pay off the intellectual “property” cartels which finance their election campaigns, and

    2. Second, set up the infrastructure for censorship and/or further attacks on whistleblowers.

  16. Cory, though I completely agree, I think you are setting yourself up for a semantic argument with your particular explanation of this analogy. If you are witness to a murder, is it not your legal responsibility to call the police, even though it is not your rights being infringed upon?

    The point you’ve stated: “All these criminal acts are not subject to policing by intermediaries — why should one industry’s civil actions be the entire world’s responsibility?” is not correct. All criminal actions *are* in fact subject to policing by intermediaries. And if you bear witness to a criminal act, it is your responsibility to report it.

    However, the reasonable interpretation of that witness is left to you as the observer, regardless of what anyone else says.

    I think a better example would be someone in a coffee shop pulling a barista off to the side, pointing at someone across the room and saying, “that person over there murdered my mother.”

    Not only can the barista *not* attest to the truthfulness of that statement by their own witness, they would also not be held responsible if they did not take a picture of the accused and collect their personal information. Nor would they be held responsible for letting the accused leave the store even if they were actually guilty. It’s not within the authority of citizens to make those decisions. At best, the barista would be responsible for handing the accuser a telephone and telling them to call the police.

    Not only that, but it is *never* a third party’s responsibility to *take action* against an accused in the real world. Even if you physically witness a murder taking place, you can’t be held accountable if you don’t take action to stop it, or even if you didn’t take a picture of the murderer if you have a camera on you. Even though these things may help, you are held accountable only for reporting the crime to authorities. There is good reason for this, primarily so that the third party is not legally forced into a situation where they are required to place themselves in a position where someone may seek retribution against them for complying with the law.

    Again, this has nothing to do with the concept that if the barista had borne witness to the crime and could [em]reasonably[/em] interpret that a crime had taken place, they would be responsible for reporting it. It has everything to do with the fact that an occurance of copyright infringement is not something that anyone but the rights holder has the means to reasonably interpret, therefore, no other party should be held responsible for its taking place, nor be held responsible to take action against any accused (including storing personal information, especially doing so as a presumptuous measure).

    The argument here should really be that none of these intermediaries (ISP’s, search engines, coffee shops) should be considered reasonably able to make the decision by their own accord that copyright infringement has occured. Not because reporting crime isn’t everyone’s responsibility, because it is.

    I think the point that should be made is that no law should be able to require people to act as law enforcement. ISP’s, search engines, and coffee shops should not be involuntarily drafted into the police force, especially not at the behest of industry lobbyists. If we’re in a situation where copyright law can only be effectively enforced by doing so, then it’s copyright law that needs to be updated, not the basic rights of citizens.

      1. I am saying that breaking the law is like breaking the law, and our approach to it should be consistent; feel free to use your intellect and replace any instance of a particular crime in my post with a different crime (some other fine examples: doing drugs, or vandalism).

        But thank you for trolling, anyways :)

        1. Sorry this is late, I forgot I posted here.

          Anyway, not trolling. In a post about IP theft, you brought in the murder analogy. I believe much of the debate on this topic revolves around the perceived versus real damage downloading causes, bringing into question the logic of treating it as a crime. There isn’t any such debate about murder. It is a poor analogy.

          /insert snarky send off here/

  17. When it came to library e-books, Cory says that analogizing to the real world is wrong, because it mistakenly elevates a bug to a feature (i.e., the lack of durability for physical books is a bug, and e-books shouldn’t be made to disappear after 21 uses).

    But this cuts both ways: the fact that it is cost-prohibitive for baristas to monitor for illegal acts (not just piracy) in-store is a bug of the real world, and if it was possible for baristas to cheaply and effectively monitor laws in real life, we would probably want them to. For example, do we think that baristas should stand idly by if someone assaults/rapes/murders another person in the store, or do we think the barista should do something? In this case, we probably think they should do something because these are types of infractions easy to monitor and report.

    Just as technology makes it easy to create durable e-books, it makes it easy and not unduly burdensome to monitor crimes committed on the internet (and, like it or not, copyright infringement is a crime). This monitoring technology goes beyond copyright infringement, and could be conceivably be used to prevent click-jacking, spam, malware, etc., etc. If ISPs were required to prevent these sorts of infractions I doubt many would be angry. Of course, the copyright holders have outsize lobbying power and substantial regulatory capture compared to the other computer crimes described, but this is not an argument against actually requiring ISP monitoring, it is an argument against the prevailing political system.

    1. Imnop, your post is exactly why I wrote mine, and I still disagree with your conclusion.

      While I would certainly want a barista to do something (at least report to the police) if a violent crime was taking place in their store, I would never want a barista to record my fingerprint, credit card number, full name, and phone number in perpetuity on the presumption that I was possibly committing otherwise unseen crimes — and with a legal requirement to not only provide access to that information to anyone making the claim that I did so, but bar me from further use of the coffee shop unless I wage a costly legal battle to clear my name.

      Additionally, I argue that, while a barista is generally in the position to reasonably deduce by their observations that a violent crime is taking place in their store, an ISP is not in the position to reasonably deduce by monitoring that illegal activity is taking place. It is not easy for them to make a determination if someone is illegally downloading something. And because of that, this type of law would require collection and storage of significant amounts of non-infringing information, as well. Citizens and businesses should not be responsible for invading my privacy (through archival of personally identifiable information) and acting with the authority of what, in real life, would require law enforcement or the courts to decide. All to be abused at the whims of the accusatory party.

      And especially when that archive of personal data itself is terribly insecure. I am not willing to give up the liberty I should have in my ability to use the Internet, just like I don’t want someone monitoring how many times and on what days I go to my local park “just in case something bad happens there” and to expressly allow people to make bogus accusations about me committing crimes in order to shut me out (see: Righthaven). Laws like this turn the copyright industry into an authorized mafia, soon to require payment for “protection” from “thugs.”

      I don’t know what Cory’s arguments are on E-books, but I think analogizing to the real world is fine. I do caution what kind of analogies get made, though — do you make the analogy that in the real world books deteriorate, or do you make the analogy that in the real world we rebuke (and sometimes punish) people who make any kind of products with artificial decay and/or scarcity built in? Or do you make both analogies and then defend the one that most benefits society as a whole?

  18. Faulty presumption number 1#: Information = matter. Wrong. It doesn’t even = energy. Gahh, toadies for landlords still exist…

  19. I question the wisdom of making the legal system’s job easier. There are good reasons for “burden” of proof.

    Adultery in hotels you say? I’m no Rockefeller. I do all my adultering in cheap motels. Real quiet like to avoid detection by motel intermediaries.

  20. I freelanced at Mattel for a few months. If their security procedures and non-disclosure agreements are any indication I bet they’d LOVE to have the power described in that scenario. Honestly, you’d think they were running the Manhattan Project in there.

    Also: Cory, I don’t think adulterers meeting in hotels counts as a “criminal” act… at least not in most western countries.

  21. It’s worth pointing out that under these types of proposals, an ISP usually has a customer lower limit, of usually a couple hundred thousand customers. This means that it wouldn’t affect the coffee shop’s operations, but probably the people who provide their broadband.

    These proposals usually get shot down quite quickly on the grounds that there is no due process.

  22. I believe the issue is that the RIAA has found suing their customers a rather expensive, money-losing prospect. This is simply an attempt to offload the cost of enforcement on to the ISPs (and by extension the people who pay to use the Internet). ISPs also have much more money that they can sued for (than the typical downloader) if they fail to police copyright infringement as well as the RIAA would like.

  23. “why should one industry’s civil actions be the entire world’s responsibility?”

    Because otherwise the crime isn’t enforceable.

    Is there a legal term equivalent to “bad code smell”?

  24. Whenever I log on to the internet via my local library or via the diner down the street, I have to click through a couple of pop ups where I agree not to use their internet connection for any “unlawful acts” such as but not limited to downloading pornography, identity theft, stalking etc. And by clicking “ok” I more or less agree that usage of their ISP is a privilege, not a right, that can be taken away at any time if i violate the terms of service.

    I actually think that’s a fair and proper amount of policeing, all things considered, since it makes the whole thing a matter of personal discression between me and the ISP provider.

    If the ISP provider wants to rat me out to the cops, then that’s their prerogative, since it’s their service. I don´t think there should be a law making it mandatory, nor do I think there should be a law preventing it.

    In fact I think we tread down a very dangerous path when we start replacing personal responsability with legislation.
    In the end it creates a moral vaccum where we have to look at the law for all decisions.

  25. Wow! This could have many tentacles. So, to keep people from photocopying protected articles from, say a magazine, the Copier manufacturer woud have an internet interface built into the copier. Then software would capture every single document put on the bed of the copier. Then the copier would query the internet for every single article, book, essay, etc. EVER WRITTEN, to make sure the print being copied wasn’t infringing.

    THEN if the copier manufacturer found infringement, they would have to remotely disconnect the copier, confiscate it, and notify the copyright holder and the authorities.

    I can see copiers getting A LOT more expensive, and used a lot less.

  26. This is much more like pawn or resale laws then running a coffee shop.

    Occasionally unscrupulous people sell stolen goods to resellers or pawn shops. Resellers are required to maintain some of the information from the people they buy from and are then required to provide this information if an item they bought is suspected of being stolen. It is in the benefit of the reseller to avoid buying stolen materials because all stolen goods must be surrendered and the requirements get more strictly enforced if it is found you are trading stolen goods (you have to take down more information, you have to quarantine anything bought for 30 days, and on and on).

    These trademarks work the same way. The providers are making available stolen good (from the opinion of the trademark owners). It is up to the providers to keep things legitimate in order to keep the police out of their hair. In both cases sometimes the provider or reseller will have to make tough choices and deny service to an honest patron or make a mistake and facilitate the distribution of illegal goods, but that is the cost of doing business. By making a good faith effort they are able to stay reputable and stay profitable.

  27. I have long maintained that forcing ISPs to be responsible for what goes on over their networks will have the unfortunate side effect (for government) of making the various governments (Fed, State, local, etc) 3rd-party criminally liable for *every* moving violation, drunk driving death, every kilo of smuggled contraband, kidnapping, and so on, merely because it involves the InterState Highway system. I honestly can’t see a challenge against this sort of suit standing up in court, since they will both be the exact same sort of situation, and the government will be forced to hang by its own petard.

  28. IANAL, but:

    1) Copyright infringement is *not* illegal (unless it involves the circumvention of DRM). It’s civil, not criminal and thus can, in many states, be validly analogized to “adultery”.

    2) The US gov’t is immune to civil lawsuits.

  29. This has nothing to do with some kid in a coffee shop with a doll. Watch out guys and gals…your yahoo information is up for grabs now.

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