11
Jul/02

The Trademark Implications of Spoofing Music Downloads – Self-Tarnishment?


Thursday’s Wall Street Journal has an article on “spoofed songs” on file-sharing services such as Morpheus or Kazaa.  The article suggests that the record companies are now uploading defective versions of their own songs (3 minutes of static for example), so as to frustrate users from utilizing the free services.  The “major record labels neither confirm nor deny the contention” however Cary Sherman of the RIAA implicitly approved the practice, stating that copyright owners ought to be able to do “whatever they can that’s lawful to protect their rights.”

“Spoofing” by the rights owner raises two sets of questions, one as to trademark implications of spoofing and one as to whether the practice can be extended to the “real world” counterfeits.

If the record companies are in fact spoofing, then the practice, from a trademark point of view, is unique (to me at least).  The owner (or licensee) of the artist’s trademark is intentionally distributing an inferior or defective version of the product associated with that trademark, deceiving the user (albeit a non-paying one), in the hopes that the experience will tarnish not the trademark owner but the means of distribution.  While it seems metaphysically impossible for the trademark owner to counterfeit or infringe itself, self-tarnishment seems possible (to say the least).  Also of interest is whether the free services will respond by filtering out spoofs and advertise that they offer only real unauthorized copies.

The question then arises whether spoofing can be extended to the real world in order to disrupt counterfeit operations.  An intractable problem  fighting counterfeits is that consumers knowingly buy low-quality fakes, i.e. $30 Rolexes.  It seems that the insertion of not low-quality but no-quality fakes is one of the few ways of disrupting this market.  However it seems like playing with dynamite if it becomes known that the trademark owner is responsible for the fakes. 

UPDATE: See this Washington Post article for info on a pending bill to “legalize” spoofing and other practices.

 

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