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All content by Kyle E. Mitchell, who is not your attorney.

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Overkilldoing IP law wrong, and getting away with it

I help a lot of clients opt out of intellectual property systems.

Some came up in Open Source software. Some baked in academe. Some grew up in the arts, on the periphery of the economy. My kind of people.

For whatever reason, they find themselves doing work that creates IP rights. But they’d rather opt out of those rights than wield the leverage they afford. Often for very valid business reasons. Sometimes out of naked self-interest, enlightened though it may be.

They’ve seen the value that spreads in communities that ignore IP, or check it at the door. They see the value on offer in traditional, IP-based business models. They choose the former.

A pattern recurs in help for those clients. Thinking about intellectual property at all, when you’re accustomed to ignoring it, is a whole lot of homework. The hardest problem is often whether work even produces IP in the first place. But assuming it does, we can often come up with a pretty good legal tool for disarming it.

If the tool is easy enough to use, the answer to:

Does this create worrisome IP rights?

becomes:

Use the tool and forget about it.

The tool is easier to use than questions about IP law are to answer. Or rather, there are more people available adept with the tool than read in the law. So use the tool on everything that might conceivably pose a threat. If you think IP is a fire, and fire extinguishers are cheap, blast everything that flickers, everything suspiciously warm, just in case. It’s cheap insurance, if one flame can burn your house down.

That’s IP overkill. Sometimes there’s no IP to put out in the first place. Licensing, waiving, dedicating or otherwise snuffing it out doesn’t make legal sense. Attempting to anyway looks sloppy, or green, to those in the know. A fireman comes home from work to find his wife throwing water on a dying light bulb, trying to save the house. That’s you. But your house isn’t burning down tonight.

In the aggregate, overkill is also a lot of needless work. If everyone knew when not to bother, they’d trouble themselves a lot less. But the price of that inefficiency is easy to pay when it buys the difference between not understanding the system and getting burned by it, and not understanding the system and getting what you want, anyway.

We see this with open source software licenses and contribution terms. We see it with content licenses applied to databases, lists, facts. It works.

On the legal engineering side, be on the lookout. Sometimes overkill just costs less than you do. You need to be ready to tell a client:

Asking me that is expensive. Just use the tool instead.

It’s hard to take pride, among other lawyers, in putting that to practice. But it’s often absolutely right by the client. Do right by enough clients, you’ll get your chance to hit the hard problem. Just you wait.

But on the community side, beware of what overkill teaches about law. Community members learn by inference. They work backwards from how they see legal tools applied, to how they think law works.

Nobody escapes the law, or the IP system, completely. Eventually, all long-lived communities have to deal with it, repeatedly. Assholes happen to every good community. And threats often come from outside, from those who’ve invested into the system.

Overkill doesn’t prepare a community to deal tactfully with those situations. Preparing for them, ahead of time requires a much more disciplined, concerted, forward-looking effort. Make that effort.

Your thoughts and feedback are always welcome by e-mail.

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