# Can an illegal site assert intellectual property rights?
**URL:** https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541
**Category:** Factual Questions
**Created:** [December 9, 2012, 10:50pm UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541 "2012-12-09T22:50:03Z")
**Posts on this page:** 16
**Page:** 1
### Author:  [@ricksummon](https://boards.straightdope.com/u/ricksummon)
#### Post date: [December 9, 2012, 10:50pm UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/1 "2012-12-09T22:50:03Z")
Let’s say a TV network decided to make a show about the [Silk Road,](http://en.wikipedia.org/wiki/Silk_Road_(marketplace)) an online black market that sells illegal drugs. Could a lawyer show up one day, claim to be representing the Silk Road, and sue the network for violating their IP rights? More specifically, could the lawyer do this without revealing the real names of his clients, and, thus, exposing them to criminal prosecution?
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### Author:  [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)
#### Post date: [December 10, 2012, 12:03am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/2 "2012-12-10T00:03:35Z")
This doesn’t make sense to me. What kind of “show about” the Silk Road would violate IP? IP rights in what sense?
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 10, 2012, 12:47am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/3 "2012-12-10T00:47:47Z")
Yeah, what kind of intellectual property rights did you have in mind? It doesn’t violate any rights of _X_ to choose _X_ as the topic of a work.
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### Author:  [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)
#### Post date: [December 10, 2012, 1:16am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/4 "2012-12-10T01:16:07Z")
Bones: “How do you get a permit to do a damned illegal thing?”
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### Author:  [@dstarfire](https://boards.straightdope.com/u/dstarfire)
#### Post date: [December 10, 2012, 1:24am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/5 "2012-12-10T01:24:01Z")
Probably not. Here in the US, there’s a legal standard that you can’t profit from a criminal act. I can’t give you an actual cite, but I do recall the laws were changed a few years back to prevent criminals from getting huge book deals after their high-profile trials.
Secondly, the only IP that exists without registration is the copyright. Trademarks, patents and the like all require registration before you receive any sort of protection.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 10, 2012, 1:26am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/6 "2012-12-10T01:26:54Z")
> [@dstarfire](#):
>
> Probably not. Here in the US, there’s a legal standard that you can’t profit from a criminal act. I can’t give you an actual cite, but I do recall the laws were changed a few years back to prevent criminals from getting huge book deals after their high-profile trials.
Again, this is irrelevant unless we can establish what kind of IP the OP had in mind.
> [@](#):
>
> Secondly, the only IP that exists without registration is the copyright. Trademarks, patents and the like all require registration before you receive any sort of protection.
Not true. Copyrights, trademarks, trade dress, and trade secrets are all protectable without registration.
And there is no registration in patents. You have to be granted a patent.
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### Author:  [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)
#### Post date: [December 10, 2012, 1:45am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/7 "2012-12-10T01:45:08Z")
> [@Acsenray](#):
>
> Not true. Copyrights, trademarks, trade dress, and trade secrets are all protectable without registration.
Copyrights, yes (though registration gives you additional options), but trademarks require registration in the US. Why would companies pay to register trademarks if registration isn’t required to protect the work?
Trade secrets have no protection at all. Why do you think that Coke keeps their recipe a top secret? If anyone found it out, they can manufacture cola that tastes just like Coke with impunity.
As for the OP, what rights would be violated? Even assuming Silk Road registered their trademarks, trademarks only apply to commerce: if another drug dealer tried to sell drugs under the Silk Road name.\* You are perfectly free to use any trademark in any work – fiction or nonfiction – without asking permission, so long as you use the trademark correctly (and, as a practical matter, you can use it incorrectly without the trademark owner doing anything other than to send you a letter pointing it out\*\*).
You do not have to get permission to use a trademark in a TV show, movie, or book. Freedom of speech trumps trademark protection.
\*We won’t get into the absurdity of that situation.
\*\*The letter protects the trademark because you can show you defended it. The fact that you’re not using it in commerce means they have no legal case, and they wouldn’t take you to court anyway because . . . what if they lose? Why blow the trademark protection over the use in an article?
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### Author:  [@DrDeth](https://boards.straightdope.com/u/DrDeth)
#### Post date: [December 10, 2012, 2:29am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/8 "2012-12-10T02:29:17Z")
Well, I have heard that fanfic, although technically illegal in some cases, would be protected under copyright anyway.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 10, 2012, 2:40am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/9 "2012-12-10T02:40:51Z")
> [@RealityChuck](#):
>
> Copyrights, yes (though registration gives you additional options), but trademarks require registration in the US.
No, they don’t.
> [@](#):
>
> Why would companies pay to register trademarks if registration isn’t required to protect the work?
Among other things registering a trademark gets you certain presumptions of law that make it easier to establish that you have trademark rights and also gives you some advantages on territorial question.
> [@](#):
>
> Trade secrets have no protection at all.
Wrong. Trade secrets are not protected by federal law, but they are protected by state law. Most, if not all, states have adopted some version of the Uniform Trade Secrets Act.
> [@](#):
>
> Why do you think that Coke keeps their recipe a top secret?
Because in order to have a trade secret that is protected under statutory trade secrets law, _it has to be a secret_—Among the things you have to show in order to successfully lay a claim of misappropriation of trade secrets are that (1) the secret is not already known to your competitors, and (2) you have taken reasonable steps to keep it secret.
> [@](#):
>
> If anyone found it out, they can manufacture cola that tastes just like Coke with impunity.
They can anyway, so long as they don’t obtain the formula in violation of trade secrets law.
> [@](#):
>
> You are perfectly free to use any trademark in any work – fiction or nonfiction – without asking permission, so long as you use the trademark correctly (and, as a practical matter, you can use it incorrectly without the trademark owner doing anything other than to send you a letter pointing it out\*\*).
Wrong. The law does not recognize any such thing as “using a trademark correctly.” Either the use is infringing or it isn’t. It doesn’t matter whether it’s “correct” or not, as a practical matter or not.
> [@](#):
>
> You do not have to get permission to use a trademark in a TV show, movie, or book. Freedom of speech trumps trademark protection.
It’s not primarily because freedom of speech trumps trademark protection. Such uses are simply not infringing in the first place.
> [@](#):
>
> \*\*The letter protects the trademark because you can show you defended it. The fact that you’re not using it in commerce means they have no legal case, and they wouldn’t take you to court anyway because . . . what if they lose? Why blow the trademark protection over the use in an article?
A trademark owner has to show that it has taken steps to defend against infringing uses. Sending letters int eh face of plainly noninfringing uses is simply overzealousness and has no legal significance.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 10, 2012, 2:42am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/10 "2012-12-10T02:42:50Z")
> [@DrDeth](#):
>
> Well, I have heard that fanfic, although technically illegal in some cases, would be protected under copyright anyway.
Fanfic is often infringing, and there is no “technically” about it. If it is a derivative work, it might itself be protected by copyright law, but the question is to whom do those rights belong.
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### Author:  [@ricksummon](https://boards.straightdope.com/u/ricksummon)
#### Post date: [December 10, 2012, 2:59am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/11 "2012-12-10T02:59:39Z")
Perhaps I should choose a different example. Let’s say a company decides to sell Silk Road T-shirts and other such merchandise. Can that company say, “You don’t like it? Then sue us, drug dealers! Good luck!”
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### Author:  [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)
#### Post date: [December 10, 2012, 3:20am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/12 "2012-12-10T03:20:16Z")
> [@ricksummon](#):
>
> Can that company say, “You don’t like it? Then sue us, drug dealers! Good luck!”
That’s not the normal response of drug dealers; however, they are traditionally quite capable of making their displeasure known.
If, on the other hand, The Silk Road Management Group, an association of drug-dealing ne’er-do-wells, decided they would join the 21st century and take up litigious arms rather than put a cap in yo ass, they would have to own legal rights to whatever it is you’re selling. What exactly do you believe they have legal rights to? Their business process? Their list of contacts and distributors? The commonly-used street names for their drugs?
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 10, 2012, 3:24am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/13 "2012-12-10T03:24:02Z")
So you’re saying that the drug dealers are claiming trademark rights in the term “Silk Road.” But just claiming rights in a term is not enough. What are the bounds? What kinds of goods or services are they claiming are associated with the mark? For what geographical territory?
If this is a fight over T-shirts, is the drug cartel sell just n B-) T-shirts? Basically you can’t establish trademark rights in illegal goods or services, do they can’t use that as the basis for their claims.
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### Author:  [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)
#### Post date: [December 10, 2012, 3:29am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/14 "2012-12-10T03:29:43Z")
> [@Acsenray](#):
>
> Fanfic is often infringing, and there is no “technically” about it. If it is a derivative work, it might itself be protected by copyright law, but the question is to whom do those rights belong.
And, in pursuing fanfic violations, the owners of the copyright need to consider Steve Dallas’s first rule of litigation: Never sue poor people; they don’t have any money.
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### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [December 10, 2012, 3:45am UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/15 "2012-12-10T03:45:40Z")
That’s not necessarily the guiding principle. Not having money doesn’t give you a free pass to infringe. The purpose may just be to stop distribution.
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### Author:  [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)
#### Post date: [December 10, 2012, 7:03pm UTC](https://boards.straightdope.com/t/can-an-illegal-site-assert-intellectual-property-rights/643541/16 "2012-12-10T19:03:42Z")
> [@ricksummon](#):
>
> Perhaps I should choose a different example. Let’s say a company decides to sell Silk Road T-shirts and other such merchandise. Can that company say, “You don’t like it? Then sue us, drug dealers! Good luck!”
This is a good example.
Silk Road has a logo, right? So, assuming they created it, they have the copyright. If someone else starts making T-shirts with that logo on it, then there’d be an IP violation that they could sue over.
So the question is: can you sue someone anonymously? I don’t know the answer, but I’d guess it’s ‘no’. Being able to do so would provide so much opportunity to screw with the court system.
I think what would likely happen here is that someone would be found who owns the logo but is otherwise unconnected to the site (after all, it’s not illegal to design a logo), who would sue over the violation.