The media is totally atwitter over the Anthony Weiner scandal. (In case you live under a rock in the US or overseas and don’t know about this, the short story is this: a US congressman was engaging in some cybersex with women online and sending tawdry photos of himself to these ladies. One of the photos got out and ever since, it’s been a media frenzy, with people calling for an end to his career.)
What does this have to do with your business?
I actually see a parallel between Weiner’s mistakes and the mistakes small business owners make with intellectual property (IP). Regular readers may remember that back in February I did a series of articles covering common issues with regard to intellectual property and creative entrepreneurs. I interviewed several legal experts and came away with two clear points:
1. IP law has some gray areas, some areas that aren’t intuitive and often the law doesn’t even matter, the people with the most money are usually the victors.
2. The easiest thing to do, when it comes to IP is keep your nose clean. Don’t instigate trouble if you don’t have to.
This is a lot like Anthony Weiner’s situation. He may or may not have broken the law, though signs right now point to no laws being broken. Whether he broke the law or not is beside the point. His embarrassing behavior is wreaking major havoc on his private and professional life. The same would be true if it came to light that you were doing something with someone else’s intellectual property that was deemed unsavory, either by the public or the IP rights owner.
So here’s my argument for taking stock of your current product offerings, and making double sure you’re not doing something that could land you in trouble:
1. There’s a good chance of getting caught eventually
Anthony Weiner probably thought no one would ever know he was messing around online. Similarly, if your plan to skirt IP law is that you won’t get caught, think again. When you put something online, either privately or on your website, there’s every chance the things you put out there will get seen by unintended audiences.
If your plan to sell bootleg Hello Kitty necklaces is something along the lines of “No one really knows about my little old Etsy shop”, think again. Nothing is safe from Googling eyes and if you’re doing something questionable, it will probably get noticed eventually.
2. Just because it’s “legal” doesn’t mean it’s not going to cause you legal headaches
The frustrating thing about our legal system, at least in the US, is that just because you haven’t broken a law, doesn’t mean people can’t make your life difficult. Even if it turns out Anthony Weiner has broken no laws, he’s already wasted so much time and energy on this nonsense. This is time and energy he could be spending on his job as a congressman.
Getting back to you, imagine you are technically on the right side of the law, at least in your opinion. Imagine you think what you’re doing is protected by parody or first sale doctrine. That won’t prevent an overzealous legal team from harassing you and taking you to court. Even if you could win, imagine the personal and financial toll fighting would entail. Imagine how time consuming a legal battle would be. Do you really want to waste your time, money and energy on that?
3. Just because you get away with it, it doesn’t make you less scummy
Let’s imagine the investigation against Anthony Weiner is not able to turn up any evidence of illegal activity. Will it make much of a difference for him? Legal wrong-doing aside, he’s paid a pretty hefty price in terms of his reputation and this could completely end his career. People are going to associate him with sending lewd photos to strangers for a long time to come.
If your business is publicly accused of trouncing someone else’s IP, you’re going to be associated with stealing someone else’s property, even if you are able to win a legal case over the issue. Winning in the court of public opinion can be more difficult and a bad reputation can ruin your business.
What about my rights as an artist?
I firmly believe that IP laws are too strict in the US and that people are overzealous about trying to enforce their IP rights. I think there’s plenty of IP bullying that goes on and I am all for free speech and free expression. All of that said, I’m also a business owner and advocate doing what’s profitable and causes you the fewest headaches. Testing the limits of IP law isn’t going to help on either of those counts.
Similarly, I actually don’t care that Anthony Weiner was engaging in cybersex. I think he has a right to a private life and I feel it’s none of my business. I don’t think his sexual proclivities have anything to do with his ability to do his job and I’d rather not hear about them. That said, I think it was a mistake of him to send out those lewd photos to strangers. Not because I think the act was wrong, but because I think the risk of getting caught was too high and the ensuing fall out makes it not worth whatever fun was had at the time.
Anthony Weiner’s fate isn’t dictated by this fairly progressive business blogger/voter who doesn’t live in his district, it’s dictated by general public opinion, the media and whatever dirt the investigative team can dig up on him. And the fate of your business, when it comes to toying with IP, isn’t controlled by me or you. It’s controlled by lawyers/judges, consumers and even how much money/time/energy you have to argue about it. If your goal is to keep your business profitable and avoid hassles, err on the side of conservative when it comes to these issues.