The Soapbox XII: The Convenient Truth

[jaydisc]

HasTak don't do accessory kits for Transformers. So the potential for loss of revenue is miniscule, if at all. The potential for loss of revenue is MUCH greater from KOs.

This is arguable. Hasbro re-release toys with new accessories. And when you're talking about a $100 toy with a new movie accurate accessory, the potential of loss of revenue is more than miniscule. KOs rarely affect Hasbro revenue directly, rather the second hand market. So, depending on the KO and the custom you're discussing, that's simply not true.

How is it like selling a Mercedes Logo? Where are the registered trademarks on fan produced items? If you want to bring branding into it, show us the branding on the fan produced items which are designed to take the place of HasTak products. Otherwise you're drawing a very long bow.

Because they're selling a likeness that is owned by someone else. However, I concede that logo was a poor example in that it's now being confused by the branding/packaging, which was not the intention. Just because accessory industries are welcomed, that does not give the accessory manufacturers license to infringe. Interoperability? Fine. We're not talking about interoperability though.... yet...

Most if not all fan accessories do NOT use copyrighted or trademarked images/names on their packaging. Copyright does not extend to items designed to work with a branded item, unless they mislead the consumer into believing the item is genuine or licensed. City Commander is specifically designed to fit a HasTak branded item, just as a Calidad cartridge is designed to work in a HP printer. It will _refer to_ HP on the packaging, and is directly competing with HP for business. If anything, the producer of the generic cartridge is closer to a copyright infringement, since they've reverse engineered the print head and such. And that's wholly dependent on HP's patented product and IP.

Either way, producing a product to fit another specific product is not, in itself, violating copyright. If it were, the generic printer cartridge manufacturers would have been out of business a LONG time ago.

The cases you're referring to, as I remember it, was about interoperability (and I remember it being Lexmark, not HP ). As I recollect it, Lexmark was a printer manufacturer that started putting microchips in their cartridges. The printer would then authenticate the cartridges as genuine and allow their use. It was done to block out competing cartridge manufacturers. In America, there is something called the DMCA, which I have referred to a few other times in different discussions. The Digital Millennium Copyright Act forbids the reverse engineering of a system intended for security. This was the claim Lexmark used against the competitor who reverse engineered the protocols occurring between their chips and their printers. It was already a stretch because it was clearly designed as an anti-competitive measure, not for security, but regardless, in the end, the competitor won, and I believe that the DMCA was even later amended to include this exception, which is that reverse engineering is acceptable, granted it is for the goal of interoperability. So, it was not a case of Lexmark saying you stole our design or likeness, but rather that their security protocol was reverse-engineered.

There have been similar cases with Lego trying to block other brick makers from making their bricks fit with Lego. However, I'm not as aware of those results.

It is readily possible to make accessories that provide interoperability without stealing likeness (at least that I'm aware of), like the Fans Project Gas Can.

Yeah and those who are actively buying KOs, while fully aware that they're buying KOs, aren't able to point the finger at KO producers. I don't think anyone's disputing that. What we're discussing is the KOers intention to deceive. Sure, most of us know that the KOs are just that, but the producer is setting out to produce something deceptive, and are flagrantly using HasTak's IP to do it..

You're pointing to the fact that many KO buyers are aware of the fact it's a KO. That doesn't get the producer off the hook, since the producer's intention still remains to produce something that's counterfeit.

But I'm not trying to get anyone off the hook. I think this is the disconnection between us. On the surface, I would not disagree with any one of your statements focused at either industry (for want of a better word). Where the disagreement arises from me, is that I feel that any claim against or defense of either, can easily and readily applied to the other. So, again, it's not the actual position that any one is taking for one or the other that I disagree with. We're all welcome to those opinions. It's what I see as a lack of consistency.

I buy fan-made items. I love them. I look forward to Fans Project stuff more than I look forward to Hasbro stuff.

I don't buy KOs. I don't really buy vintage toys either. But I think that for me to publicly deride KOs is hypocritical because there are folks who buy KOs for the same reasons I buy fan-made customs.

As for the ethical arguments presented, there's a huge gulf in intention between a fan item produced to supplement a HasTak item and a KO designed to take the place of one. The fact remains most fan items - while produced for profit - aren't designed to take the place of HasTak products as KOs are. Sure there are fan items which do take the place of HasTak items/step on IP (the Drift toy is an example), but that's closer to a KO, the way it deals with HasTak's IP.

(bolding mine)

KO Sunstreaker, Springer and others are also not designed to take the place of any [currently or expected to be available] products from HasTak.

I don't see why those who claim there is a difference are being shot down with such determination. Why encourage a discussion only to dig one's heels in when presented with alternate points of view? Those defending the original viewpoint are heading further and further into legal hypotheses to defend the original point of view, which was more about ethics than legality.

I don't see any difference in the "heel digging" from either side. I just see continuous disconnected. My interpretation of the original point was not that it was about the ethics and legality of either, but the lack of consistency we apply. So, as you continue to try and show a differentiation between the two, I'm giving you conflicting examples of similarity.

I'm not trying to point the finger at STL (and it's nothing personal), by the way, but this thread feels more like a crusade to put across one viewpoint than an attempt to generate meaningful discussion. I'm generally a fan of the soapboxes, but in this case I can't help but feeling the original argument just doesn't stack up at all - no matter how it's reworded.

I think this opinion is just the result of you disagreeing.

This topic was always going to be problematic for a few reasons.

1. People are really emotional about KOs.
2. The topic suggests that people are rationalizing an inconsistency due to a deep seeded belief. That's always going to be difficult to discuss.

Having said that, noone has responded to my point about the fan items which specifically avoid IP, as well as my reference to the printer cartridge companies, whose reverse engineering has been proven to be legally valid (and which offers a strong parallel).

I don't believe that reverse engineering for interoperability is comparable to profiting from the likeness of someone else's character. No one is suggesting that because City Command FITS SNUGGLY around Hasbro's toy, it is an infringement. The claim is that its sales have benefited because it represents someone else's copyrighted character.