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Fox and The Simpsons' creator, Matt Groening, developed the idea for the fictional brand, Duff. Therefore, when a real-world manufacturer puts out a product by the same name, one might think that it has stolen Fox's idea and that, as a matter of equity, intellectual property law ought to furnish a remedy. But intellectual property law does not protect ideas in the abstract. While a real-world Duff manufacturer may have taken more than just an idea, it is difficult to articulate how much more. Part of the reason it is so difficult to conceptualize the injury Fox suffers when another producer introduces a Duff Beer to the marketplace stems from the fact that Duff Beer is a fictional product sold in a fictional universe under a fictional brand name. Fox's injury looks very different when we suspend our disbelief and plunge into the fictional world of Springfield, accepting the fictional reality as our own and when we pull back, remind ourselves that The Simpsons is nothing more than a cartoon and view Duff Beer as one element of a vividly imagined work of animated fiction. As a consequence of this puzzle of perspective, Fox suffers a different intellectual property injury depending on our vantage point.
An analogy to Internet law helps explicate the puzzle. Writing on the problem of perspective in this area of the law, Professor Orin Kerr posits that "whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality . Kerr terms the perspective from inside virtual reality the "'internal perspective' of the Internet" and the point of view of an "outsider concerned with the functioning of the network in the physical world rather than the perceptions of a user" the "external perspective . In attempting to apply law to the Internet, our perception of who is doing what to whom is not a mere cognitive tool for conceptualizing difficult problems, Kerr contends. Instead, our selection of perspective is itself outcome determinative, because "[b] y choosing the perspective, we choose the reality; by choosing the reality, we choose the facts; and by choosing the facts, we choose the law." While Kerr suggests that courts may dismiss this problem of perspective as "a minor skirmish in the 'battle of analogies,'" he notes that courts "already choose perspectives when they apply law to the Internet" without realizing it.
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