Finding Superman in Cyberspace (Poisoned Flowers, Pt. 1): Resolving Focal Point and Trademark Disputes on the Internet and in Cyberspace by Rewriting Code

102 Pages Posted: 23 Mar 2012

See all articles by Thomas Folsom

Thomas Folsom

Regent University School of Law

Date Written: March 13, 2012

Abstract

In an objective cyberspace that relies on a virtual map featuring dynamically coded focal points functioning as markers and spoilers, addresses, magnets, roadblocks or detours, there is an opportunity to describe norms, to distinguish forms of offensive conduct in respect of new technological uses beyond trademark, and to prescribe effective, modest, and technologically reasonable remedies. I propose that conduct which: (a) alters the virtual map, (b) plants deceptive focal points, (c) ambushes a user of focal points with uninvited, invasive, or false invitations, or (d) expropriates, blocks, or spoils focal points otherwise available should be an actionable focal point offense.

I also propose a modified set of trademark likelihood-of-confusion factors for "invisible and attenuated" new technological uses in cyberspace and I explicitly link the trademark-style and focal-point style offenses into one unified theory. My proposal relies on modest remedies--reasonable technological accommodations--that use countervailing code to remediate the problems caused by offending code, and it limits the extent of secondary liability. I thereeby preserve a robust and freely navigable cyberspace with minimal regulatory interference and with maximum freedom to use search terms and other focal point landmarks as legitimate aids to navigation.

Incidentally, I define an objective code world having a number of discrete places, and I propose a technique for desiging transformed laws appropriate for it. To help explain and illustrate the power of coded exceptionalism in a coded world, I use Professor Lessig's well-known example of poisoned flowers in cyberspace, to which I add the problem of "finding superman" in cyberspace. I likewise use Judge Easterbrook's observations about the law of the horse, to which I add the special problems of coded horses (or, as it were, "magic horses") in a coded world.I am proposing specific steps to align laws, code, norms, prices, and architecture in an objective code world. I import some concepts from game theory to do so.

Keywords: focal points, trademarks, cyberspace, law of the horse, poisonous flowers, intellectual property, new technological uses, law and economics

JEL Classification: C70, O34

Suggested Citation

Folsom, Thomas C., Finding Superman in Cyberspace (Poisoned Flowers, Pt. 1): Resolving Focal Point and Trademark Disputes on the Internet and in Cyberspace by Rewriting Code (March 13, 2012). McGeorge Law Review, Vol. 43, No. 2, Winter 2012, Available at SSRN: https://ssrn.com/abstract=2027088

Thomas C. Folsom (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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