Sunday, January 24, 2010

Do lawyers dream of electric suits?

While carrying out research for a fight on PAS, I came across this curiosity: the estate of Philip K Dick is planning to sue Google for using the word nexus as the name for its prudish new phone. You see, Dick had used the name for a brand of robot, in that book they made into that film, you know the one with the Dutch guy who used to be in the Guinness advertisements; yes, him.

I am not in the Intellectual Property business myself, but for the life of me I cannot think how the use of the word by Google would affect the Dick estate's rights. It is not as if anyone will get confused: I wanted a sixth-generation cyborg and all I got is this lousy phone. It is not as if Dick invented the word. It is probably about suing Google because they have a lot of money. In short, the Dicks are being dicks.

This case raises some interesting questions. Don't these people have enough money already? Are they not damaging the brand - is not Dick supposed to be a radical, not a corporation? What woman who would call herself Isa Dick? How long before I am accused of hating on Sci-Fi for taking the name of Dick in vain?

The answers to these and other questions will be revealed in the next episode of I Married a Metaphor from Outer Space. In the meantime, here's the Revillos, who came from Planet Retro.

20 comments:

Giovanni said...

We got you googling PKD, so that's progress. What you've stumbled upon alas has got nothing to do with genre politics but is a law well known to literary scholars: the greater the writer, the more dickish the estate. You don't want to get us started on the people who own the right to James Joyce's stuff.

Dave said...

I'd suggest this would be a useful link to research before prolonging the argument too much further.

Mind you, I'd probably have taken part myself except that, after a fruitless few attempts to sign up at Public Address and get myself a confirmation email, I eventually gave up in disgust (at Vodaphone more than at Public Address) so can only really snipe from the sidelines.

Paul said...

Giovanni, who said this had anything to do with genre politics.

Dave, quite. I am going to stop arguing and read a book.

HORansome said...

I believe part of the problem is that it is a "Nexus" phone running the "Android" OS; there seem to be reasonable grounds to say that Google might be trading on name associated with Dick's most successful (and still copyrighted and trademarked) work. Rumour also has it that Google will settle and pay out the estate.

Paul said...

It would be a rum business if the estate could maintain a copyright on those words, even in association, since neither was coined by Dick. In any case, I would have thought it better to take imitation as a form of flattery.

Giovanni said...

Giovanni, who said this had anything to do with genre politics.

Just trying to, you know, lighten the mood, but I see you're still quite determined to follow on Isa's footsteps.

HORansome said...

The book is under copyright; the word "nexus," as referring to a technological entity, is trademarked. Very important distinction. Under trademark law if you don't contest seeming violations of your trademark you lose the mark; all the Dick Estate is doing is protecting their intellectual property. Now, I'm no fan of IP, but that's the way it's done.

Paul said...

Giovanni, grow up.

Amanda said...

"Do lawyers dream of electric suits"- hahahaha! A moment of pure genius there, sir.

word verification: zingrefi. Seems apposite somehow

Paul said...

Amanda, thank you.

Matthew, I shall need something more prima facie than that. How can the estate hold a trademark on an imaginary product, and how can they take action against the manufacturer of a different product? How is it that the word 'nexus' is used by several businesses? I don't buy the 'we had so sue' argument; nobody is obliged to take action; they could have come to an amicable arrangement.

HORansome said...

Well, it's not up to me to educate you in trademark law (as to what can be trademarked and what cannot), so, long story short; the property that is 'Do Androids Dream of Electric Sheep,' which features Nexus model androids, is owned and leased by the Dick Estate to several different groups due to the book rights, the sequel rights, the film rights, et cetera, all being owned by a variety of different companies and their independent subsidiaries. Because of this complex arrangement they kind of have to defend the marks of the property so that a) they don't fall into the public domain and b) to ensure good business relationship with the other holders. It's very simplistic and naive to say 'Can't they all just get along?' (especially since the Dick Estate are dealing with Google, who certainly don't 'just get along' with others anyway); both the Dick Estate and Google are engaged in business and have to go through the processes that dictate what can and can't be done in their respective businesses.

Paul said...

Matthew, it is up to you to make a reasonable and defensible argument; you of all people should know that.

I think you are confusing copyright and trademarks. I do not think you understand either. And yes, they could all just get along; the 'we must sue to stop our property becoming generic' line is an IP lawyer's standard excuse for being evil.

HORansome said...

You mistake the burden of proof in this situation; it isn't up to me to defend the status quo but rather for people who say it shouldn't work that way to explain the why and how of it (without just engaging in vague hand-waving).

I'm also not mistaking copyright for trademarks or vice versa. IP is a specialty of my primary supervisor and we talk about these distinctions an awful lot.

Paul said...

In which case, you will be able to tell me how the Dick estate can hold a trademark on a word which Dick did not invent, which also been given to many other products and over which the estate of Karl Marx would have far greater claim.

In framing your answer, you might like to consider the following: the Dick estate does not own a trademark for the name 'Nexus.'

Paul said...

Besides, if what you were saying were correct in principle, then J M Barrie's estate would be able to sue anyone called Wendy.

HORansome said...

The answer to the first is simple; you can hold a mark on a word you did not invent if the thing to which it applies is novel; i.e. if I, and only I, mark some x as being a y, then my usage is novel and can be marked this is why McDonald's often sues other food chains, mostly in Scotland, for using their mark). Whilst many McDonalds have sold food, the mark (with some exceptions and exemptions) belongs to a rather large American corporation.

(You should see the large number of trademarks Garrison Keiller has for non-existent things, services, names and the like. He's a trademark empire, that man from Lake Woebegon).

The answer to the second is more complex. The Dick Estate might well think they (or a subsidiary) have a mark on Nexus (I cant speak for the estate) or they might be in the process of claiming one; you can, in some cases, gain a mark if you can show that someone is using your usage (such as the case of an Android phone called a Nexus One). This is tricky but it can and has been done before, mostly in America.

As for the Wendy comment; you are either trolling on your own blog (if so, well done) or can't see a difference between a mark and a name (then, for shame, sir, for shame).

Paul said...

McDonalds' claims are based on the possibility of confusion - that one might think Alistair McDonald's bar and grill in Stornoway is somehow connected with their 'restaurants.' Dick did not make robots; he just wrote about them using words that already were in common use. It would be difficult to make a similar claim stand up.

What Dick's lawyers are doing is putting forward a claim without any merit in the hope of getting a substantial sum to go away. Corporations get this sort of claim all the time and often they settle because the costs of defending the claim in court would be greater.

If Dick's lawyers were smarter and possessed forethought, they would have used the area denial technique of Keillor: trademark everything, because you would not want anyone opening a Chatterbox Cafe.

My Barrie comment was flippant. However his estate might have a claim against the Wendy's chain of hamburger restaurants.

Giovanni said...

Corporations get this sort of claim all the time and often they settle because the costs of defending the claim in court would be greater.

Actually, the lawyers and assorted experts interviewed in the coverage agree that it wasn't a clear-cut case. One of them offered by way of example the fact that Verizon approached Lucas to clear the use of the word Droid before using it in one of its products, which would seem comparable. Still, I can't accept that this makes the situation in any way sane, especially given the nature of the works involved. Isa's "Electric Shepherd" company could have just so easily have been written by her dad into one of his stories - and they wouldn't have been the good guys.

Paul said...

Aye, there's the rub: these cases are never straightforward. The Droid claim, however, is different in that Dick had some claim to coining the word.

The thought of a dystopian future of corporations and IP lawyers would turn anyone to drugs.

Anonymous said...

Actually, PKD was more a rather confused schizophrenic gnostic toward the end of his life, although his "Man in the High Castle" was one of the classics of sixties New Wave SF- a brilliant, multilayered work set in an alternate world where Nazi Germany and Imperial Japan won WW2, with predictable consequences in the former case, but not so much in the latter...

Craig Y