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Thursday, July 11, 2002

Tarnishing The Goods

Martin Schwimmer has this fascinating observation about record companies serving fake songs on file sharing networks in order to discourage downloads:
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.

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