Protecting What Is Invisible Yet Invaluable
“Intellectual property is the oil of the twenty-first century,” Mark Getty declared—the heir to an oil fortune who built an empire licensing photographs. The comparison cuts to the point: in a knowledge economy, the intangible—brand, code, design, content—often exceeds in value anything you can touch.
The Paradox of Ownership Without Possession
Thomas Jefferson, himself an inventor and the author of America’s first patent regulations, wrote: “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” Intellectual property is strange: you can steal it without depriving the owner. You can replicate it infinitely at no cost of production. It is property that defies the intuitions we have developed over millennia of dealing with physical things.
And that is precisely why it requires such meticulous legal protection. If you cannot rely on physical possession, you must rely on the law. And the law—in this domain more than any other—demands active defense.
The Brand as Trust Capital
David Ogilvy, the advertising legend, defined a brand as “the intangible sum of a product’s attributes: its name, packaging, price, history, reputation, and the way it’s advertised.” The trademark is the legal anchor of that sum—the point at which reputation becomes property protected by law.
Philip Kotler, the father of modern marketing, argued that a strong brand reduces the risk perceived by the consumer. People buy Nike, Apple, Mercedes because they know what to expect. That predictability has value. And it retains that value only so long as the brand remains exclusive.
When a competitor registers a similar mark, when counterfeits flood the market, when a cybersquatter occupies a domain bearing your name—that value leaks away. Every infringement is an erosion of capital built over years.
The Work and Its Shadows Online
Lawrence Lessig, the law professor and theorist of digital culture, described the Internet as a space in which “the default is copying.” Every page view is, technically, a copy in the browser’s memory. Every share is a multiplication. Copyright, created for a world of printing presses and print runs, collides with a reality in which copying is free and instantaneous.
For the entrepreneur operating online, this means a double challenge. On one side, protecting your own content: texts, graphics, code, databases. On the other, avoiding liability for the content of users. The hosting provider who fails to respond to infringement notices becomes complicit. The one who responds too zealously risks claims from users.
Tim O’Reilly, the technology publisher, advanced a provocative thesis: “Piracy is a tax on being undiscovered.” For small creators, lack of distribution is a greater threat than illegal copying. But for a business that has built its value on exclusivity, every unlicensed copy is a loss.
The Invention as Temporary Advantage
Joseph Schumpeter, the economist of innovation, saw economic progress as “creative destruction”—the continual replacement of the old by the new. A patent is legal protection for the temporary advantage an invention confers: twenty years of exclusivity in exchange for revealing to the world how something works.
But a patent is not automatic protection. It is, rather, a license to litigate. Peter Thiel, the co-founder of PayPal, observed that “competition is for losers”—true advantage lies in building a monopoly, however temporary. A patent can be an instrument for building such a monopoly. Or it can be a piece of paper that frightens no one, because the owner lacks the resources to enforce it.
James Dyson, the inventor and entrepreneur, went through 5,127 prototypes of his vacuum cleaner before arriving at a working model. Then he went through years of patent disputes with industry giants. “Patents are only worth what you’re prepared to spend to defend them,” he concluded.
The Contract as Foundation
Victor Hugo led the nineteenth-century campaign for international copyright protection. He understood that law without enforcement is fiction, and enforcement without clear contracts is chaos. Every transfer of rights, every license, every commission to create a work requires an agreement that leaves no room for doubt.
How often does a programmer discover that code written on commission does not, formally, belong to the commissioning party? How often does an agency learn that the graphic design it paid for remains subject to the creator’s moral rights? How often does a franchisee find that his trademark license does not cover the business he has just launched?
Richard Stallman, the founder of the free-software movement, built an entire legal philosophy around the precision of licenses. The GPL, the license he created, has generated hundreds of pages of legal analysis. Even a movement that, by design, rejects the traditional understanding of intellectual property rests on meticulously constructed agreements.
Skarbiec Law Firm
Since 2006, we have advised clients on intellectual-property matters—from trademark registration, through the negotiation of licensing agreements, to defense against infringement and representation in disputes. We built our experience internally as well, managing intellectual property within the Skarbiec group and Skarbiec Portal.
We know that intellectual property is often a company’s most valuable asset—and, at the same time, the one most vulnerable to erosion. Our task is to ensure that this value is protected as it deserves to be.
“In a world of unlimited copying, exclusivity is what has value,” the technology futurist Kevin Kelly wrote. Intellectual-property law is the instrument that creates and guards that exclusivity. Our task is to make it work for the client.
