INTELLECTUAL PROPERTY AGEISM IS A GOOD THING

Over the last twenty years of litigating intellectual property (IP) cases, I’ve noticed something of a pattern: Whenever I’ve investigated, pursued, or defended copyright or trademark infringement claims (which typically involve online or electronic content nowadays), there’s usually been someone between the ages of 20 to 35 or so ultimately at the center of the infringement.

I’ve had some middle-aged infringers too, but not quite as often. It’s frequently been someone who falls within the age range of the younger Millennials and older Gen Z-ers. They are the ones in particular who can get themselves—and their employers, customers, and others—into trouble. Sometimes very costly trouble.

This observation is anecdotal, but that doesn’t mean it’s inaccurate. Certain guiding principles can still be gleaned from it. And it begs one question in particular: When creating or managing key content and IP, should a business exercise greater caution when hiring, supervising, relying upon, or using the skills of younger workers?

It’s a broad question. It not only encompasses a large demographic, but the content at issue is especially broad since it’s anything that can be found online: websites, photos, videos, social media, advertisements, software, podcasts, music, books, articles, and more. In addition, this question doesn’t just apply when a company hires employees directly, but also when it retains independent third-party vendors who provide content services, since they hire young workers as well. What should you do? More on that shortly.

Consideration, Not Discrimination

An important note at the outset though: I am NOT encouraging any discrimination against Gen Z-ers or Millennials by not hiring them because they may be unfamiliar with aspects of IP law (which is a very nuanced field). Indeed, it’s those same people who comprise a technologically savvy and sophisticated talent pool who can bring great value to a business due to their familiarity with new technologies.

I’m also not implying that only older generations respect IP rights. Given that Boston and Cambridge are hotbeds for innovation and entrepreneurship, I’ve worked with many young start-up founders who are acutely aware of the importance of IP rights. They want to do things properly—both when protecting their own IP as well as when using (or not using!) the content and IP of others.

Rather, I use the term “IP Ageism” to simply mean paying more attention to certain generational differences when potentially allowing a younger segment of the workforce to create and manage a company’s salient content. Understanding the differences and assessing these risks beforehand—regardless of how old you are—may save time, money, and a lot of aggravation down the road.

Age is Just a Number! Until It’s Not.

Notwithstanding my characterization, how is “ageism” formally defined? According to Merriam-Webster, it’s “prejudice or discrimination against a particular age-group and especially the elderly.” However, when it comes to IP issues, the “elderly”—you know, folks like me over the age of 50—may have the advantage, so I’ll focus on the younger generations here.

Is it really a form of unjust discrimination to use age as a criteria in certain instances? We already do that on many fronts. The Constitution forbids anyone under the age of 35 from being president. What’s wrong with a smart and motivated 33 year-old who wants to run for president now? Maybe nothing, but you have to be at least 35—end of story. A 20 year-old can’t buy a beer, even though he may be a more responsible drinker than some 29 year-olds. Here in Massachusetts, you must be 16 to get a driver’s license.

Thus, age is already an explicit consideration. It serves as a basic numerical presumption that someone has the minimal sound judgment to engage in certain activities. It’s imperfect at times, but why shouldn’t it be a threshold issue when a company formulates its IP policy and assesses the risks of content creation, management, and infringement? Especially if the judgment of its younger employees may be somewhat uninformed, lacking, or simply mistaken on IP issues? The short answer: Yes, age should be a factor.

“This Here’s a Story about Billy Joe and Bobbie Sue…”

In the late 70s or early 80s, I did something kind of odd by today’s standards when I wanted Steve Miller’s “Fly Like an Eagle” album. My mom drove me to a record store—Sam Goody, I think—where I actually walked in, selected the LP from the rack, and paid the cashier (in non-Bitcoin physical currency). Those were primitive times. I might have even run into Thomas Edison once while buying a phonograph.

Nowadays good luck even finding a brick & mortar record store. Most music purchases take place online and are nearly instantaneous. That’s the point: Almost all forms of content, from music to video to photographs to books and more, are available at our fingertips. The really good, current, must-have content usually costs money to obtain. But that’s not always how the younger generation sees it.

Why? The different eras in which we grew up is an obvious factor. However, it goes beyond the mere early exposure that younger generations have to technology and the internet. Boomers and Gen X-ers like myself have had to adapt as our professions have evolved and embraced these innovations as well. There’s more to it than that. For instance, during the pre-internet Mesozoic Era, it never occurred to me to hide the Steve Miller LP under my jacket and walk out of the store without paying for it.

Binary booty, however, is far easier and much faster to steal (and accords some anonymity). It doesn’t feel like theft to many Gen Z-ers or Millennials when there are many ways in cyberspace to obtain paid content for free with a swipe or mouse-click. It’s been nearly 25 years since the courts shut down Napster due to the large-scale music copyright infringement it had facilitated, but that’s ancient history to today’s youth. It might as well have been the French Revolution.

“Isn’t it free if it’s on the internet?” A few young clients accused of infringement have said absurd things like that to me over the years. They think if it can be easily accessed, they can therefore have it. Or better yet: “If they didn’t protect it, why’s that my problem?” I’ve had to explain, in commonsense non-virtual terms, that you can’t take someone’s car just because the door’s been left unlocked. I don’t recall having those conversations with my 50 year-old clients.

Such statements reflect how differently today’s youth view content and IP compared to older generations. It also explains why a disproportionate number of them have gotten into trouble far more frequently in my experience. Even with services like iTunes offering songs from only 69¢ to $1.39, there are young adults who still find ways to rationalize why they shouldn’t pay—but will spend $5 for their Starbucks lattes. At least they would still have the songs an hour later after nature runs its course with their lattes…

Back to Steve Miller. His classic song about two young bandits, “Take the Money and Run,” reflects a twentieth century mentality about what was worth stealing back then. Had he written it to embody today’s youthful values, he might have named it “Take the Content and Run” instead. Because that’s just what I’ve found many young people do, whether they realize it or not. Unlike Steve Miller’s version though, when only the two robbers broke the law, infringement can put others in legal jeopardy.

Okay, Boomer. Uh, What are Statutory Damages?

I represented a small company a few years ago who hired a young 20-something intern to manage its website. He copied a photograph of an airplane that he came across online and posted it on the site to help illustrate the company’s services. The photo, however, belonged to an apparently well-known aviation photographer, who understandably didn’t want his IP being used for free. Had the client licensed it instead, he would have been fine with its use. The photographer retained experienced Boston IP counsel.

In addition, because the photographer had registered the image at the Copyright Office prior to the alleged infringement, he was entitled to “statutory damages.” These are damages set by statute which range from $750 to $30,000 per infringed work but can increase markedly to $150,000 for intentional infringement. If it wasn’t registered, the photographer would need to prove actual damages, which are more uncertain and harder to do. He had a strong case (and knew it), despite some limited potential defenses and points about damages that we had raised in response.

We settled for over $18,000 for a photo that could have been licensed for a fraction of that. Had we gone to trial, the damages against the company could have been $30,000 or more, plus tens of thousands in legal fees (and possibly the photographer’s legal fees too). To be blunt: This was my client’s fault. It should have been monitoring its young intern and where he was getting the images from. Or instructing him at the outset of what not to do.

I’ve also been contacted by upset parents who receive demand letters from the Recording Industry Association of America claiming that a host of songs had been downloaded to their homes. It was almost always their Gen Z kids who did it. It cost one parent $3,000 to settle—which was a relative bargain since the statutory damages could have been ruinous had we fought it. It taught his 21 year-old son a valuable lesson outside the college classroom. And that $3,000 payment wasn’t exactly covered by his 529 plan.

I’ve had disputes involving young website developers who copy photos and other content from sites they come across and then casually incorporate them into their customers’ sites. It’s not the developer who gets the demand letter from the copyright holder seeking damages, but the business owner. When I represent the owner, I usually bring the developer into the dispute to indemnify my client since it’s technically the developer’s fault. But that can be futile if they have no assets, which leaves the client on the hook.

These are all more innocuous examples of infringement involving usually uninformed or unaware young adults who get other parties into trouble by not understanding what can happen. These third parties are often forced to ultimately bear the financial liability of an infringer’s misconduct. Not all infringement is so benign though.

Do Not Go Gentle into that Good….Courtroom

I’ve been both plaintiff’s and defense counsel where some youthful infringers knew that what they were doing was wrong, but simply didn’t care. They wanted to use that IP, so they just did. Consequences be damned! Whether this is rooted in a sense of youthful entitlement is a debate for another time, but it does tend to make a bad situation—or at least, not an overtly hostile one—much worse.

Technology is a funny thing. While it makes content easier to steal, it also makes it easier to track at times. The proliferation of online infringement has led to the creation of companies which specialize in helping IP owners find and identify infringers using a variety of technologies and methods. And once an infringer gets on an owner’s radar, court could be on the horizon but it’s not a given. There are usually ways to resolve the situation before things get that far.

If, however, an infringer is especially arrogant and brazen, they are asking to be sued. This is where it gets very expensive, very quickly. And IP owners don’t go gently into court. Even large companies with ample resources typically try to resolve these disputes without litigation when possible. But if they’re dealing with someone who shamelessly uses and exploits their IP and then ignores them, court is the next step. Think of it as a disciplinarian father who’s not giving his rambunctious son “time-outs” anymore; sterner discipline is required. And he’s got his belt in one hand…

Trade secret misappropriation is another IP violation. I had a case involving a 31 year-old who quite proudly stole my client’s entire customer database and took it to a competitor that welcomed him with open arms. The client was understandably angry at both his audacity and refusal to give it back. So we filed suit, which they fought, and eventually obtained a judgment for almost $1.1 million that drove all defendants, including our smug and youthful IP thief, into bankruptcy. How’s that for a participation trophy?

One especially reckless and arrogant young client retained me to defend him after he blatantly used several registered trademarks of a large national company to sell his own services. He continued doing so even after being warned by the company to stop, which he ignored and didn’t take seriously for some reason. Not surprisingly, he was sued by their very expensive and aggressive large law firm.

He finally realized that his conduct had consequences; it matured (aged?) him rather quickly. But there wasn’t much I could do by then given the clearly willful and extensive nature of his infringement—“douchebaggery” isn’t a valid legal defense—except to try and contain the financial fallout. Like copyright, trademark law also awards statutory damages in some instances. And legal fees still accrue quickly even when legitimate defenses exist.

While such gratuitous infringement isn’t the exclusive conceit of youth, experience has shown me that it’s more likely to occur with Gen Z-ers and Millennials than it is with those of us who didn’t grow up online. This sort of unnecessary IP risk-taking can at times not only become another party’s liability, but when the infringement is willful, it’s often very expensive to resolve.

Age Before Wisdom? Or Wisdom before Age?

Cases like these over the years have informed my perspective that age should be a factor when determining who creates and manages content and IP. Hiring younger employees, or retaining outside vendors who hire them, requires implementing some safeguards (and are typically absent in small companies). It starts with asking the right questions at the outset.

Asking someone’s age in an employment context has pitfalls even when it’s legal to do. And it’s not hard to ascertain anyway when so many young people overshare their lives on social media. Rather, asking specific IP-related questions can provide much greater insight on whether they should handle key content at all. Or if they can at least be trained and monitored to do it properly. Consider these ten sample questions (even if a few seem very basic):

• Are you aware that using someone else’s content—such as photos, video, music, audio, and written copy—when you don’t pay or have permission could be infringement?
• Do you know what copyright infringement and trademark infringement are?
• Have you ever copied or downloaded music, videos, photos, or other content without first determining if it’s legal to do?
• Have you ever copied or downloaded music, videos, photos, or other content for free that you should have purchased?
• Have you ever looked for or used websites, software, or apps that allow you to download content for free which you would otherwise have to purchase elsewhere?
• What type of content do you copy or download for your own use, or post on social media?
• Where do you get your content from?
• What’s your step-by-step process for creating your own content? (I won’t discuss generative AI input and output now, but you can read my post about it here.)
• Do other people contribute ideas and material when you create content?
• Have you ever been involved in any disputes or lawsuits, whether at work or otherwise, involving allegations of infringement or misappropriation of another party’s content or IP?

The questions should be tailored to your situation. And yes, people can certainly lie when answering them (which opens a different can of worms). They’re still important to ask though to gauge reactions and evaluate responses.

If, for instance, someone admits to copying pictures or downloading music for free when they should have paid, it shouldn’t automatically disqualify an otherwise suitable candidate—more have done it than will admit to it. It just stresses the importance of implementing effective IP policies. Also, not all copying is infringement. Content might be in the public domain, or permissively licensed (e.g., Creative Commons), or subject to defenses such as fair use, or in flux if the state of the law is unsettled, or might not even be copyrightable in the first place (like AI-generated content, which I discuss here). Asking the right questions and doing your homework is key.

For vendors, consider asking if it has: IP policies for screening and monitoring its employees, as well as for content creation, usage, and clearance; ever disciplined or fired workers for infringement; and been involved in any IP disputes or lawsuits. Whatever you decide to ask, the main point is that outsourcing content creation and management does not mean you’re in the clear. You still need to ensure problems won’t arise later. And young people can be a major source of liability, as some clients have learned the hard way. I’m not being alarmist, but only sharing what I’ve often seen in my practice.

A 46 year-old can and does infringe too; they should be screened and monitored like all employees. But a 26 year-old who grew up with a fleeting attention span after being continually immersed in a content-rich, dopamine-fueled internet ecosystem where instinctive shortcuts are as easy as swiping a screen, should perhaps be scrutinized more closely. After all, if a 26 year-old can’t be president but a 46 year-old can….maybe there’s something to that restriction?

Therefore, age is a reasonable consideration where content is concerned. If you don’t at least evaluate the potential IP risk of the Gen Z-er or Millennial who’s pitching you on their creativity and how much they can help your business, it may come back to bite you later. Our IP laws can be harsh and unforgiving at times—regardless of your sincere plea to the court that you were unaware of the infringement. It brings to mind some cover song lyrics by The Clash from another ancient LP that I bought as a teen: “I fought the law and the law won.”