One Troll Down… Many More To Go – by “Anna D”

Righthaven is a copyright holding company that has been menacing website owners in Nevada, Colorado, and South Carolina for the past year, filing lawsuits against them on grounds of copyright infringement of newspaper material. The company started suing in 2010 after signing a confidential agreement with Stephens Media, LLC (publisher of the Las Vegas Review-Journal), and it has subsequently filed 265 cases of copyright violation on behalf of Stephens Media and, Media News Group, and Stevo Deisgn Inc. Righthaven also has an agreement with WEHCO Media, but has not brought any suits on their behalf.

The troll got some bad press after suing the Las Vegas Review-Journal‘s own sources, a reporter writing about a Righthaven lawsuit, charities (including a non-profit supporting immigrants rights), and poor bloggers (including a 20-year old on disability). The Las Vegas Review-Journal has responded to the public criticism without remorse. On the topic of copyright infringers, Review Journal columnist Vin Suprymowicz is quoted as saying, “I hate them with a passion. Lawsuits? They should have their godd**ned hands cut off and nailed to the wall of City Hall,” and a threat from the publisher, Sherman Frederick, seems equally ominous: “I’m asking you nicely once again– don’t steal our content. Or, I promise you, you will meet my little friend called Righthaven.”

So the “little friend” trolled on, pressing for domain name forfeiture and $75,000 before even sending a DMCA takedown notice to the website owner. Even though many cases were dismissed on the basis of fair use, and the average settlement was probably $3,500 (much lower than the requested $75,000 but still a substantial sum for many hobby bloggers), Righthaven was tireless.

The Electronic Frontier Foundation stepped in to challenge the sham after Righthaven sued Democratic Underground (a political satire and commentary blog). EFF provided the Democratic Underground with lawyers, and, last Friday, these lawyers convinced a federal district court to unseal Righthaven and Stephens Media’s “Strategic Alliance Agreement.” The court found that, under the agreement, the Review Journal was pocketing half of the litigation proceeds and Righthaven’s lawsuits were resting on very shaky legal grounds. In its lawsuits, Righthaven had alleged that 1) it held the exclusive right to reproduce the work in question, 2) it held the exclusive right to prepare derivative works, 3) it held the exclusive right to distribute copies of the work, and 4) it held the exclusive right to publicly display the work. Unfortunately for Righthaven, according to the confidential agreement, the Las Vegas Review-Journal had not actually conferred any of these rights. It only gave Righthaven “the right to sue,” which simply does not exist.

The Court made the Agreement public, giving all other defendents Righthaven had sued a powerful legal weapon and, essentially, spelling the demise of the Righthaven troll.

This image taken from here.

We can celebrate the death of Righthaven, but we’ve still got many more trolls on the loose, and the court’s decision in this case hurt many of them. This case was special because Righthaven and the Las Vegas Review-Journal set up a shoddy legal document in which no intellectual property rights were actually transferred, and their operation only lasted as long as it did (a little over a year) because they managed to keep the document under wraps.

But other trolls are already or now will be smarter. As long as they actually own the rights (we’ve heard of sample troll Bridgeport Music), they can track down and extort the ignorant and, often, the innocent (fair users).

What policy could we enact to protect ourselves against this other kind of troll? To start with, I’d vote for making copyrights non-transferable (except in the case of works for hire and, possibly, for kin), though still licensable. To me, this seems reasonable. We’d still be incentivizing creators, and thus “promot[ing] the Progress of Science and useful Arts,” but we’d stop allowing non-creators to build entire business models on the exploitation of our IP system and the people that don’t understand it.

Will Classesv2 be taken down with COICA? – by “JeeYoung K”

Course packets are slowly disappearing from the Yale Campus. This term, I did not have to buy a single course packet for any of my classes, because all the course material was uploaded online. For some of them, course materials were uploaded to the resources section in Classesv2 site and for others, the links to the reading were posted on a separate site like this one. Even TYCO, which has a near monopoly on selling course packets to Yale students, in an interview with the Yale Daily News has said that it is diversifying its business to survive the decreasing demand for printed course packets.

Even as course material begins to migrate from offline to online, the copyright issues that surround distributing course material have remained the same. Most of the time, including copyrighted works in the course material, whether they are uploaded files or printed packets, are not likely to be cases of copyright infringement, because educational uses often fall under the fair use exception.

The prospect of Combating Online Infringement and Counterfeits Act (COICA), however, poses a new challenge for professors and students who want to share course material. The bill purports to authorize the U.S. government to shut down sites “dedicated to infringing activities.” The intention is to shut down sites the main purpose of which is to engage in sales of counterfeit goods, but the bill is likely to be used more broadly to target hosting sites in general and Classesv2 may not be an exception.

As the New York Times reported, even under the current law, the U.S. government has  seized websites that facilitate file sharing (and some of them did not even host the content themselves). In at least one of these cases, the Immigration and Customs Enforcement has arrested someone for criminal copyright infringement for a domain which at the time of the arrest only had embedded content from other sites. If the bill passes, the scope of the government’s crackdown is likely to only increase. In a post about COICA, the Electronic Frontier Foundation has listed hosting sites such as Dropbox and Rapidshare as potential targets of the bill. Then, who is to say that Classesv2 is to be excluded? Who is it to say that the Yale Law & Tech site is not to be seized?

One may find the idea of Classesv2 site being redirected to the government’s seizure notice ridiculous. Of course, the scenario is only a hypothetical, but it still highlights potential problems with COICA. First, it is not practical. The seized sites could simply change their domain names. Can you imagine Yale playing a cat and mouse game with the Department of Justice? Second, it conflicts with the safe harbor created by Section 512 of Digital Millennium Copyright Act. The Section 512 protects online service providers from becoming liable for copyright infringements by their users as long as they have a system of taking down infringing materials expeditiously. It has been proposed to amend the bill to provide greater protection to internet service providers, but the bill as it stands does not and has a potential to shut down useful services which have substantial non-infringing uses. Third, the bill overlooks fair use and friends and family exceptions. It is difficult to tell whether a particular content is being shared for fair use purposes or among friends and family and can only be determined on a case-by-case basis. By shutting down entire websites, COICA has the potential to depress free speech by not leaving room for users who use the site for non-infringing purposes to make their cases.

If the bill were to pass, we might have to go back to using good old course packets. Just imagine not having any excuse to have your laptop out and check your gmail during class. We must stop the COICA bill.


Are you a Clarence Thomas or a Ruth Bader Ginsburg? – by “Ryan W”

Are you a Ruth Bader Ginsburg, a Clarence Thomas or an Elena Kagan?? Now you can rep your favorite Supreme Court Justice with a JUSTICE SIGNATURE mug. This week’s topic of Trademarks and Brands on the internet got me interested in names— more specifically signatures— and their potential for use in a visual identity. Signatures are generally not trademark-able, and the visual language used on supreme court documents is in the public domain, as it was created by government employees. Yalies should definitely show some Sonia Sotomayor pride by drinking their morning coffee from a Justice Signature mug, featuring Justice Sotomayor’s *real* signature.



Stoller the Troller – by “Charles A”


Perhaps one of the most infamous trademark trolls is Larry Stoller. As part of the new line of “intellectual property entrepreneurs”, Stoller’s entire business strategy was to amass a portfolio of ambiguous trademarks he would then use to pursue and threaten as many offenders as possible. Below is a sample of just some of the trademarks Stoller registered.




Stoller is most famously known for aggressively pursuing his trademark of the word “stealth”. In 2005 he entered a legal battle with Sony’s Columbia Pictures after their release of the summer movie Stealth. Stoller sent a cease and desist letter to Sony claiming to have registered and owned the rights to the movie title and insisted that the title of the movie be changed. While he wasn’t successful with this particular venture, other big companies such as Kmart, JVC, and Panasonic have chosen to remove the term stealth from certain portions of their websites and products rather than deal with Stoller at all. Regardless of whether or not these companies feel as though they have a legitimate case, it’s simply easier to settle as many issues as possible outside of course. As one Panasonic lawyer stated “if you can solve problems without going to court, you’re better off”. If even huge corporations aren’t always willing to fight for their actual right’s, how much more can we expect of the smaller companies and start ups who receive a threatening cease and desist order from people like Stoller. This is clearly not in the service of the consumer.

Once again we have another example of an area of IP law that is being abused by trolls for pure economic benefit. Trademark trolls, like patent trolls, are abusing a system meant to protect the consumer and stimulate innovation.  While Stoller wasn’t very successful in his ventures (he was recently stripped of all his trademarks and banned from making any further claims) this is exactly the kind of practice that companies like Intellectual Ventures are turning into a viable industry. The end consumer needs to be put back at the forefront of lawmaking to ensure that practices such as these do not continue.

Original New York Times article


The TDRA and Being “Famous” – by “Misbah U”

The Trademark Dilution Revision Act of 2006 (TDRA) was signed in 2006 by President Bush as an amendment to the Federal Trademark Dilution Act of 1995;  it further clarified the standard proof trademark owners must meet in order to claim dilution of the famous TM, how use by another can “dilute” a trademark, and finally, it made it easier for owners to prove dilution.

Specifically, the TDRA defined a trademark to be “famous” if it is “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” The owner of such a famous TM can thus prevent its use by others that can be proven to be “diluting” the mark. Diluting, under the TDRA, occurs when the famous mark is “blurred” or “tarnished” as a result of an “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” Essentially, with this Act, it was made clear that owners can stop potential dilution without showing that the current diluting use is actually causing harm.

Recently, trademark parodies have been at the forefront of cases involving the TDRA. In my opinion, despite further specifying the original Federal Trademark Dilution Act, courts remain conflicted and inconsistent when it comes to interpreting the TDRA—especially when it comes to trademark parodies which, naturally, aim to reference prominent trademarks.

For example, with the Louis Vuitton Malletier, S.A. v. Haute Diggity Dog (4th circuit, 2007) case, Louis Vuitton, a manufacturer of high end luxury luggage, leather products, and other accessories, claimed trademark infringement and dilution against Haute Diggity Dog because of its Chewy Vuiton plush dog toys that were modeled after the LV handbag. Here, despite acknowledging that Chewy Vuiton had indeed based their design and name off of Louis Vuitton, the Court went on to find that Haute Diggity Dog was actually engaged in a successful parody, and, as intended, it would be perceived as such:

“Finally, the juxtaposition of the similar and dissimilar—the irreverent representation and the idealized image of an LVM handbag—immediately conveys a joking and amusing parody. The furry little ‘Chewy Vuiton’ imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog… The satire is unmistakable. The dog toy is a comment on the rich and famous, on the LOUIS VUITTON name and related marks, and on conspicuous consumption in general.”

Similarly, with the Charbucks case (Starbucks Corp. v. Wolfe’s Borough Coffee Inc.), the Second Circuit found there was no likelihood of dilution—even though Starbucks claimed that Charbucks for coffee products was likely to blur the distinctiveness and/or harm Starbucks’ reputation. This decision was heavily based on the TDRA. Interestingly, when weighing the degree of similarity, the court stated that the marks be substantially similar (and thus created a new requirement) in order to attain protection against dilution via blurring. Moreover, in terms of the “intent to create an association,” the court accounted for bad faith when it came to determining whether there was an actual intention behind unlawfully associating with a well-known trademark.   At the end of day, despite Starbucks’ appeal Charbucks wasn’t found to be likely of diluting the Starbucks TM.

With Hershey Co. v. Art Van Furniture, Inc., however, Michigan’s largest furniture retailer, Art Van began an online campaign where visitors could vote for their favorite couch design—one of which happened to be a brown sofa, emerging from a wrapper, with “ART VAN” centered across. Hershey decided to file a lawsuit claiming that it’s chocolate bar packaging was being diluted and infringed upon. Art Van, of course, argued that this was merely a parody and its amusing nature would therefore diffuse any risk of it being mistaken as a sponsorship, for example. Fortunately for famous TM owners here, the district court rejected the parody defense (differing it from Chewy Vuiton mentioned above) by stating that Michigan retailer’s design was “neither similar nor different enough to convey a satirical message…it’s not biting.” Thus, playing on someone else’s trademark as a parody is by no means a guaranteed defense.


As of November 2010, I think Facebook vs. Lamebook is one case that will be particularly interesting to follow given past cases where parodies have been established as defense. is a parody compendium of funny facebook content that recently decided to sue in the federal district court of Western Texas, after seeking 1st amendment protections, so that Facebook couldn’t go ahead and file against them first. Facebook, however, ignored this and filed an infringement and dilution suit in Northern California. Only time will tell how the parody defense will play out here—and if privacy issues, which haven’t been addressed by either side as of yet, are raised (even though Lamebook obscures identifying information).

It turns out not everyone can be “winning.” – by “Sarah C”

Charlie Sheen has just filed for trademark protection on 22 catchphrases including:

“Duh, winning” – “Vatican Assassin” – “Tiger Blood” – “Rock Star from Mars” – “Cobra Venom” – “Adonis DNA” – “Sober Valley Village” – “Sheen’s Goddesses” – “I’m not bipolar, I’m bi-winning.” – “My Violent Torpedo of Truth”

…to name a few. I guess not that he’s not getting his 1.8 million an episode from Two and a Half Men, he needs some extra cash? Until researching Sheen’s mission to trademark his phrases, I was unaware of how many other people, show, etc. have trademarked some pretty obvious statements. Donald Trump trademarked “you’re fired.” Paris Hilton, “that’s hot.” Emeril Lagasse, “bam!” It seems strange that by simply repeating a phrase publically, there is a basis  for ownership.

It seems that this need to trademark nearly everything has extended beyond traditionally trademarked materials. For example, T-Mobile trademarked the color magenta. In this case, the company “has been the owner of the color mark No. 395 52 630 ‘magenta’ since September 12, 2000 which was registered on the basis of a proven secondary meaning (for goods and services in the field of telecommunications.)” I have two problems with this:

1. When I see a color, I do not associate it with a corporation, nor do I think it’s “off-limits.” And when did colors ever prove to have secondary meaning?

2. Doesn’t the field of telecommunications encompass nearly all media? Internet, telephone, television, radio, cable…

This made me wonder, should trademark have a “novel and nonobvious” clause as well? If even patent provisions have become relatively lax on their nonobvious clause, what’s next for trademark law? While this seems to make much more sense, upon further consideration, I realized that it’s unlikely to actually work when put into practice. Trademark covers such a vast area of material that requiring novelty and nonobviousness would not serve the same purpose as patent law does (although trademarking colors still seems kind of abusive).

From a governmental point of view, laws like this serve to protect the consumer from confusion in the market and buying inferior products by mistake. Yet, some individuals argue that trademark owners should lose their right to sue infringers entirely, on the basis that consumers know what they are getting themselves into when they are buying a fraudulent product. This school of thought assumes a certain degree of intelligence among consumers, stating that they would be able to distinguish between the real and the fake.

But, I have doubts. I’ve found that most vendors of “knock-off” products are seeking to make a profit (just as the legitimate companies are) by scaling up the price of knock-off products to not much less than  retail of an authentic one. I know I have difficulty distinguishing real items from fake ones, so what’s stopping replica sellers from charging the same price as the authentic?

Determining the nonobviousness is probably entirely too subjective to judge for trademarks. Even things that seem obvious – Apple for instance – are not necessarily obvious to its field. Apple is not obvious for computers, nor is Blackberry obvious for cellphones. Examining novelty is another obstacle. For example, take the Nike checkmark, or “swoosh.” That is not novel in a sense, but it’s become commonly associated with Nike.

The tension here is that even with something as simple as a checkmark, a company is forced to obtain a trademark to prevent millions of others from ripping off their design, which would result in enormous losses in revenues for the original company. People are certainly doing it now (watches, handbags, etc.), albeit illegally, but unless that mark was viably available, they could do it with impunity.

In cases such as these, I definitely see the benefits of trademark. Although recent trends of trademarking common phrases and even color are certainly pushing it, instituting a clause requiring novelty and nonobviousness, like that of patent law, appears to be too complicated and unjustified.

Luxury Brands Forced to Bear the Burden of Infringement Monitoring: Tiffany v. eBay – by “Kendall W”


The rapid development of the Internet has enabled various new ways for sellers to connect to buyers and to expand their businesses past geographical barriers.  But, as commerce advanced so did the forums for counterfeiting and infringement.  Similar to the Google and Louis Vuitton trademark case, Tiffany v. eBay brings to light yet another instance of infringement via the Internet.

In this case, Tiffany’s asserted that eBay “actively advertised the availability of Tiffany merchandise” on their website, which is in no way an authorized vendor of the brand.  The allegations against eBay included direct trademark infringement under federal and common law; contributory trademark infringement under the federal and common law; unfair competition under federal and common law; false advertising under the Lanham Act; trademark dilution under federal law; and contributory dilution.

The Court outright rejected Tiffany’s direct infringement claims, which I do agree is the least sound of the arguments, contending that eBay, and any other vendor, should be free to use “Tiffany” to accurately describe a jewelry that is, technically, from the Tiffany collection.  To this, Tiffany rightfully argued that eBay should be held liable for the rampant sales of counterfeit Tiffany jewelry on their website.  Because all Tiffany’s merchandise sold on the site is not counterfeit, and because eBay quickly takes down listings when Tiffany’s sends directed notes, the United States District Court for the Southern District of New York ruled in favor of eBay, stating that “the law is clear: it is the trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites.”

Aside from direct trademark infringement charges, eBay should seemingly be held liable for contributory trademark infringement, trademark dilution and contributory dilution.  The eBay platform cultivates a context catering to a variety of sellers, sometimes anonymous, which allows them to very easily and intentionally sell second-hand and counterfeit goods.  The website knowingly makes it overly easy to do this.  In this sense, eBay is enabling and facilitating trademark infringement and the charge of contributory trademark infringement seems applicable.  In addition, sellers on eBay are peddling used or fake Tiffany’s jewelry.  Tiffany is a considered a luxury brand, and it’s jewelry something not easily attainable by the general population.  The company has spent time and resources to develop a high-end brand, and sellers on eBay undermine the brand and diminish value.  In this way, eBay should be held liable for trademark dilution and contributory dilution.

The ruling in this case basically holds that, regardless of the fact that Tiffany and other luxury brand companies have invested enormous resources into developing their brand, they are nonetheless responsible for monitoring all activity and counterfeit activity pertaining to their brand.  This extensive responsibility is unreasonable considering the scope of the Internet and marketplace websites such as eBay, and the ruling in this case reinforces the illicit and explicit exploitation of luxury brand companies via the Internet.  Ebay should bear the burden of monitoring the activity on their website because it is just that, their website.  In the interest of integrity and accountability as well as wanting to facilitate the exchange of quality goods, they should monitor the transactions taking place on their site and should screen the sellers.

Why Isn’t a Car Website – by “Daniel A”


If you visit you’ll wonder why you aren’t able to see, learn about, and purchase the newest models of Nissan automobiles. That’s because the website actually belongs to a small North Carolina based computer reseller and has been the centerpiece of a now decade-long trademark infringement case against a man who continues to claim that he has every right to use and maintain to promote and sell his products.

According to his website, as far back as 1980, when Nissan Automobile was actually Datsun, Uzi Nissan has been operating businesses under his surname. In 1991 he founded Nissan Computer Corporation to sell “computer hardware, computer maintenance, networking, computer training and other consulting services related to computers.” On June 4, 1994 he registered the domain name to promote his computer hardware and peripherals business and two years later he registered to use to promote his internet services business.

In December 1999 Nissan Motor filed a $10 million lawsuit against Nissan Computer claiming cyber-squatting, trademark infringement, and trademark dilution. What resulted was a decade-long legal battle which exposed just how far large companies are willing to go in order to obtain and protect a veritable web presence. According to Nissan Computer’s website, the first round of summary judgments led to rulings in favor of Nissan Computer on all claims with except for the dilution claim. This led Nissan Motor to file a second round of summary judgments with some interesting results. The court actually changed the date for judging the “fame” standard from 1991 to 1994 and then ruled that by 1994 Nissan Motor was indeed famous and that Nissan Computer had diluted its trademark.

The case continued to a final injunction which allowed Nissan Computer Corporation to maintain control of the domains and so long as it neither advertised nor mentioned/made disparaging comments about Nissan Motor. Nissan Motor then filed a series of appeals that ultimately resulted in the same judgment in favor of Nissan Computer Corporation

Probably the most interesting takeaway from this entire fiasco is the fact that the internet has grown so rapidly and so dramatically in the past decade and a half which has led large and moneyed organizations to pour resources into maintaining and protecting their web presences. While Nissan Computer Corporation’s claim to both and are very legitimate, Nissan Motor’s interest in both domains is so great that it is willing to pour vast amounts of legal resources into effectively bullying a small company into handing them over. Although the web is an open platform it operates within the same laws and constraints of society which can find interesting ways to favor those in power or with access to substantial resources…like trademark infringement lawsuits.

You Don’t Bing Google, But You Google Bing. Right? – by “Daniel E”



For a long long time, companies have been extremely uptight, pleading people not to promote the “genericide” of their trademark. Genericide occurs when a trademark becomes the colloquial or generic description for, or synonymous with, a general class of product or service. The trademark loses its “secondary meaning” loses its secondary meaning and such loss can be caused by turning a trademark into a verb.

Photoshop It

Skype Me


Tweet? (more on this later)

In the 1990s, Xerox spent thousands of dollars in a campaign to urge consumers to use “photocopy” rather than “xerox” documents. As an article in the New York Times says, “The fear was that if ‘to xerox something’ became another way of saying, ‘to photocopy something,’ the term would end up defining not what Xerox is (a company that makes a distinctive brand of copiers), but what Xerox’s products do (make photocopies). In the process, the difference between Xerox and its competitors would begin to melt away.”


But today in the digital age, the genericide of trademarks may not be such a bad thing. When your company’s name is used as a verb, it is partly a sign that “you’ve made it.” You are a dominant company in the marketplace and your influence is likely to spread. (Dictionary)


Even when I tried to use Bing as my primary search engine, I would have friends send me emails and run up to me telling me to “google” (v) a video or news article. Long behold, I was back on “Google” (n) 100% of the time.


“The risk of becoming generic is so low, and the benefits of being on the top of someone’s mind are so high,” says Rebecca Tushnet, an expert on trademark law at Georgetown University.

Nonetheless, some companies in this digital age are still concerned with genericide. In an effort to control its brand name, Twitter trademarked the term “tweet.” When users posts something on twitter they issue a “tweet.” By taking this action, Twitter has enhanced its control on the term “Twitter” and has provided a term users can use to describe what they do through Twitter’s services – “tweet.”

Personally, I understand the concerns of corporations and owners of trademarks. Nonetheless, having your trademark be used as a verb is actually a good sign for your company. Verbs are active. Verbs are precise. And sometimes, verbs are just catchy.

Verbs are Catchy


The Certified Original Human – by “Nathan B”

There may never be another you,” notes the website of the DNAid art project, “but if there ever should be, would you have any legal rights to the original design?” The answer seems like it should be simple enough: of course we own the rights to our own DNA- it’s a part of ourselves that helps fundamentally define who we are. And even if we didn’t necessarily own the rights to our personal genetic code, it’s not like anyone else could.

Experimental artist Larry Miller, however, disagrees. Miller was alarmed by the emergence of genetic patents following the Supreme Court’s 1980 decision in Diamond v. Chakrabartry, which held that living beings and their DNA could be patented under U.S. law; he worried that as genetic technology became more and more prevalent, our rights over the code which makes us us would erode. As a response in 1989, Miller became the first person on record to copyright his own DNA.

Larry Miller's Genetic Copyright Certificate (click the image to make your own)

He was now a Certified Original Human- a man whose genome was no one’s but his own.

Miller wasn’t content to stop with just protecting his own genes- several years later he made the “Genetic Copyright Certificate” and encouraged others to assert their ownership over their DNA. He sought to generate dialogue over the expanding role that genetic engineering was playing in a society where GMOs were doing everything from feeding us to curing disease.  His genomic rights evangelism expanded as thousands “copyrighted” their genes and word spread via the internet, news media and even, for a time, coffee cups (which is all well and good until Starbucks decides the next logical step in expansion is to do to your DNA what they’ve done to every street corner in NYC).

Who owns your DNA?

The work of genetic artists like Larry Miller certainly raises questions, but does it offer us any answers? The copyrights he helped create have never been legally tested, but would they hold up if they were? The Register of Copyrights explains that “copyright exists from the moment the work is created,” but does that mean we’ve always owned our genes and Miller was just the first to point that out?

Further, supposing that these were enforcible, how would that happen? If someone creates a genetic copy of us (or any other derivative work based on our genome), can they claim fair use? Can we send a cease-and-desist letter (and what would it mean for an organism to “cease and desist” using another’s genes)?  Can we ask them for royalty checks?

These are confusing questions, to be sure, but that’s Miller’s whole idea. He wants to make us ask the awkward and unclear questions about where genetic intellectual property is leading us. He wants us to be confused. He wants us to be concerned.

Even the moniker offered by DNAid, “Certified Original Human,” ends up offering more questions than it answers. If our genes are derived from our parents, can any of us be considered “original?” Even if we can, why should we claim copyright over our DNA if we didn’t create it? After all, it’s our genes that make us- not the other way around.

At least, not yet.