>Never attribute to malice what you can attribute to a corporate lawyer.
Are corporate lawyers not the physical manifestation of malice itself?
Are corporate lawyers not the physical manifestation of malice itself?
My wife is a corporate lawyer, so ive seen a little bit of these shenanigans from her perspective. And it pretty much boils down to this: there are certain risks lawyers can take and keep their jobs, and risks they will lose their jobs over. Like everyone else, they do not enjoy unemployment.
Saying “this business idea is fine, go for it” and it succeeds? They get no credit. Saying “I don’t think this is legal,” ugh, lawyers are always too cautious, but its par for the course sonit doesn’t reflect badly on them. Saying “go for it” and get nailed in an enforcement action? Unemployed and unemployable.
Likewise, when it comes to protecting IP, as required by law. They can’t -not- do it: it’s their job, explicitly, to protect the IP. Deciding “we will not pursue the correct course of legal action to (legally) protect our clients rights to protect their branding” isn’t in their purview, that belongs to the execs (who Are the ones that make those decisions). Any lawyer that decided that on their own? They’d better hope it -never- has -any- consequences, because... unemployed and unemployable.
It’s easy to blame lawyers for protecting their clients rights, but all they do is navigate the system. They don’t make the system[1], and they don’t pull the trigger
[1] there is a meme that lawyers build the legal system, as opposed to, you know, legislators, lobbyists, special interest groups, etc. I find it poorly related to reality.
Justice has always been for sale. What's happened is that the price has increased to the point where most of us can't afford it.
How to defend a trademark is also a business decision. Dollars to donuts says that Oracle's corporate lawyers have "defend Oracle IP" as a generic goal, and that they know that suing a big player over infringement of their JavaScript (tm) mark would be the sort of business decision that requires senior executive approval, but sending out cease&desist letters to nobodies almost certainly requires no executive approval. This is standard corporate organization and operation. But this too is how you get into PR problems, for example, and corporate lawyers don't really think about that.
Now, whether Oracle should or should not be taking these actions to defend the JavaScript (tm) mark -- I don't know. That's their business, and it's a business decision. That the law and courts don't look askance at small-scale enforcement of rapidly-becoming-generic marks is a completely separate problem for some other day. Corporate lawyers should make sure that this is what the business wants. If Oracle as a business has decided that this is what it wants, fine, and I'm ready to believe that they have, but I find it a lot easier to believe that this is just a small decision made by their legal department in something of a vacuum.
When I said “defend as required by law,” I meant “defend the IP in the specific manner dictated by our laws,” not that one is obligated to defend it at all. Eg, suing people to prevent IP from becoming generic is the defense that is recognized in our legal tradition - thus, if they are to defend it, the conservative must follow this route.
It's absolutely clear that suing, say, Google, over JavaScript mark misuse would be a big deal business decision at Oracle, while sending a cease&desist letter over some piddly app in the iOS store is almost certainly not. But there is a cost to the latter, in that it destroys goodwill to be overly and unnecessarily aggressive in enforcement of a mark that arguably is now generic. This should be a business decision, not a legal one.