Words Matter: The High Cost of Deal-Shaming IP Owners

Words can have profound impact. The term “patent troll,” coined by an Intel litigator, has done incalculable damage. First use is attributed to Peter Detkin, who is said to have deployed it in 2001 to belittle plaintiffs in a patent case involving the chipmaker.

Shortly after its appearance, Detkin emerged as what some in the tech world would consider a bad actor. He co-founded Intellectual Ventures, a company that raised $5.5 billion to acquire more than 40,000 patents and applications for sale, license or enforcement.

The IP community needs to be more vigilant about preventing parties of interest and the media from controlling the IP narrative. Conveying behavior they wish to depict as dubious is part of a larger financial strategy, and language is an integral part of it. Patent trolls have come to be seen as invention owners gone amuck. Demonizing individuals or entities that are unable to commercialize their inventions, or simply choose not to, is simply a tactic designed to mitigate licensing costs. Unfortunately, it is a dangerous one. That “patent troll” is a term that is widely accepted is our own fault. Those impacted include small to medium size businesses, universities, research institutions and especially independent inventors.

In the Court of Public Opinion

The T-word has been used to negatively predispose the public, lawmakers and the courts to patent licensing. The term has contributed significantly to making tech licensing arduous, if not impossible, costing businesses and investors billions of dollars, and creating an impediment to innovation and jobs that has yet to be fully measured. “Patent troll” has served to demean those who wish to license, no matter how fair or appropriate the circumstances. The name may be of somewhat less consequence to the legal community, where posturing of this nature is often a part of litigation. In the world of elected representatives, the courts and public opinion, however, you could say memeification is 9/10 of the law.

Possibly worse is another label many believe was coined by Colleen Chien, former Professor at Santa Clara School of Law: patent assertion entity (PAE). It suggests that any entity or person that does not practice the inventions it owns who attempts to license them are in the litigation business. The implication is that PAEs are established expressly to enforce their rights through litigation. While it is true that many patent owners are left no option but to sue, it is rarely their intention. They sue because it is the only way infringers take them seriously. The refusal of those who are practicing their inventions to negotiate in good faith leaves licensors with little choice.

Patent litigation is expensive, time-consuming and risky. It rarely represents the best return on investment. If licensors have any hope of prevailing, they must first identify and thoroughly vet exceptional patents whose claims are compellingly clear and convincing. Licensors resort to lawsuits because infringers today refuse to even discuss a deal. When confronted with a licensing request, the attitude of many potential defendants in the tech world is “So, sue me. [Your chance of collecting is miniscule. First, you need to get by the Patent Trial and Appeal Board (PTAB) at least once. If you succeed, my company has more litigation capital than you can imagine].”

This approach may benefit shareholder value. It does nothing to support innovation, businesses or jobs. It is questionably ethical, although most shareholders do not realize it. Corporations are increasingly mindful of diversity and inclusion, as they should be, and for the need for businesses to champion an eco-friendly environment – why not extend the same respect to innovation rights and inventors? Generative AI has awakened copyright holders and will continue to be a major factor in the future of content creation. Americans are angry that China is stealing their IP but can easily forgive domestic IP abuse so great it cannot be calculated.

Conscious Cultivation

The descriptive used by some for companies that routinely trample on the patent rights of others is “efficient infringer.” These businesses steal now and, if necessary, ask for forgiveness later. It makes financial sense given the cost of litigation and the price of taking a license to an invention they need. The term may be accurate, but it does not resonate like “patent troll”. “Serial infringer” has the potential. It implies repeat offender, which is what many of these businesses are, and it is associated with serial killers and others who commit heinous crimes routinely and without care for their victims.

Acceptance of “patent troll” is the result of several factors, not the least of which is conscious cultivation by the media and lobbying by tech companies and their representatives, who fear the potential pressure on their high profit margins from having to secure licenses for inventions they need from businesses they deem outside of their orbit. “Ankle biters” is a term that has been used. It paints as questionable those who would attempt to license their inventions but who – for lack of capital or experience – do not own or practice them.

Scott Kieff, professor of Law at George Washington Law School and former Commissioner at the International Trade Commission, a body that rules on international IP disputes, said on the “Understanding IP Matters” podcast recently that it cost one billion lobbying dollars to assure the patent-averse America Invents Act was passed in 2011. Wide acceptance of the term “patent troll” is no accident, although few realize it.

Patent licensing and enforcement improves the DNA of innovation, facilitates healthy competition and fuels commerce. In relative terms, it costs the largest companies a tiny fraction of their profits, perhaps a few pennies per share. It is less of a literal threat than a symbolic one, born out of paranoia for their business model and fear that someone is always coming up behind them. Patent licensing supports the important if imperfect meritocracy that is America and benefits the rule-of-law system that attracts both investors and individuals.

‘Stuffing Inside a Cushion’

Whether a catchall term or a something cultivated by publishers, studios, streaming giants, record labels and other distribution channels to provide wider and cheaper access to copyrighted material they require, the term “content creator” implies that creative expression is fungible—a mere product than can be sourced here or there with minor differences.

“To hear people talk about ‘content’ makes me feel like the stuffing inside a sofa cushion,” Oscar-winning actor Emma Thompson said in conversation with head of CAA Bryan Lourd at the Royal Television Society conference, IndieWire reported via Variety. “‘Content,’ what do you mean ‘content’? It’s just rude, actually. It’s just a rude word for creative people.”

Thompson added:

“I know there are students in the audience: you don’t want to hear your stories described as ‘content’ or your acting or your producing described as ‘content.’ That’s just like coffee grounds in the sink or something. It’s, I think, a very misleading word. And I think it’s one of the things that maybe the language around the way in which we speak to one another, and the way in which the executives speak to creatives, the way in which we have to understand one another and combine better.”

Many believe that “content creator” reduces the output of members of the creative industries to product, which may in fact be how publishers and studio heads choose to see it. At a minimum, it is not a term of respect or endearment. At worst, suggests Adam Mossoff, Professor of Law at George Mason’s Antonin Scalia School of Law, Senior Fellow at the Hudson Institute and board member of the Center for Intellectual Property Understanding, businesses that want to depress the value of copyrighted works know how they need to characterize them.

“Thompson’s not only right about the implications of the phrasing,” wrote Jason Bailey in The New York Times recently. He continued:

“She’s right about the real-world impact of what is, make no mistake, a devaluing of the creative process. Those who defend its use will insist that we need some kind of catchall phrase for the things we watch, as previously crisp lines have blurred between movies and television, between home and theatrical exhibition and between legacy and social media.

“But these paradigm shifts require more clarity in our language, not less. A phrase like ‘streaming movie’ or ‘theatrical release’ or “documentary podcast” communicates what, where and why with far more precision than gibberish like ‘content,’ and if you want to put everything under one tent, ‘entertainment’ is right there.”

“But studio and streaming executives, who are perhaps the primary users and abusers of the term, love to talk about ‘content’ because it’s so wildly diminutive. It’s a quick and easy way to minimize what writers, directors and actors do, to act as though entertainment (or, dare I say it, art) is simply churned out — and could be churned out by anyone, sentient or not.”

Creativity is a challenge in an increasingly AI world, one in which the four-month film actors’ strike continues to be waged largely because of the threat of putting a performer’s name, likeness and image before the person. If you can have a young Harrison Ford’s face and voice for less, why pay top dollar for the real one?

“Apparently, 33 of my books have been used as training material for their wordsmithing computer programs,” writes celebrated novelist Margaret Atwood in The Atlantic. “Once fully trained, the bot may be given a command—“Write a Margaret Atwood novel”—and the thing will glurp forth 50,000 words, like soft ice cream spiraling out of its dispenser, that will be indistinguishable from something I might grind out. (But minus the typos.) I myself can then be dispensed with—murdered by my replica, as it were—because, to quote a vulgar saying of my youth, who needs the cow when the milk’s free?”

Atwood, winner of numerous literary prizes, is also the inventor of The LongPen, a patented remote signing device conceived in 2004 and debuted in 2006. It allows a person to write remotely anywhere in the world via tablet PC and the Internet and a robotic hand. It also supports an audio and video conversation between the endpoints, such as a fan and author, while a book is being signed.

Accurate Enough or Outraged?

Some respondents on Reddit have said that the term “content creator” is dumb, and we should stop using it. Others are not so sure.

Below are excerpts from Reddit’s series of responses to the “content creator” language controversy. Some believe it was accurate enough, while others are outraged.

“I absolutely despise the term ‘content creator’, every time I hear some streamer or YouTuber get called a “content creator” I lose 10 brain cells from this goofy ass corporatist term. It’s such a vague term that doesn’t mean anything and takes away the integrity that comes from the actual industry they’re in.”

“It’s like calling a chef a ‘nutrient processor’. Sure, it’s technically what he does, but so does McDonalds.”

“It sounds bad but is actually an entry level marketing job. I was a content creator before moving up to marketing coordinator. It was all in-house work for companies. Content creator is what they call the “camera guy who writes and edits” but does not make decisions. Even for a pro, it’s not a great title to be stuck with, but it’s a start.”

“Its not a great sounding term but it is the most accurate description for them. Being ‘some internet guy’ just doesn’t look that good or sound that well though. Neither is ‘YouTuber’ or ‘Twitch Streamer’ as well understood by anyone above the age of 40. Especially because people on the internet can make all sorts of niche content.’”

We Can Do Better

Used in the same sentence with inventor, “content creator” sounds stiff and bereft, even if it is convenient. The name may be literally accurate, but it is reductive and reflects poorly on creators and distributors alike. Surely, the IP community can do better.

Below are a few possibilities. Readers – please tell us what you think in the comments below, and let’s get a dialogue going. Better language needs to evolve from participation and use. It will not happen overnight or on its own.

A few proposed alternatives:

• Creative industry member (CIM)
• Career creator (CC)
• Creative expression professional (CEP)
• Person engaged in the creative industries (PECI)

Use in a sentence:

• e.g. This webinar is intended for inventors and others engaged in the creative industries.
• e.g. America is distinguished by its long history of invention, creative expression professionals and a reliable IP system.

As if participation in the attempted naming is not incentive enough, the Center for Intellectual Property Understanding (CIPU) will post a summary of the responses.

This article was updated on Nov. 6 to correct a typo in the first paragraph – 2022 should have been 2001.