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Gray area

Debate continues on line between property rights and freedom of information

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Print this page by M.J. McAteer

The United States usually likes to wear the white hat when humanitarian concerns are at issue, but this summer it was cast in the unwanted role of bad guy when it shot down a treaty that has been billed as a boon for the blind.

The treaty, which was being negotiated in Geneva under the auspices of the World Intellectual Property Organization, would have required copyrighted material to be made available for conversion to a format accessible to the visually impaired, many of whom live in Third World poverty. American publishers, however, maintained the treaty would set a precedent for infringement of property rights. The U.S.  government sided with that position and refused to be a signatory to the treaty.

That decision, like the whole debate about property rights versus freedom of information and the public interest, immediately was framed in ideological terms, with one disabilities advocate calling the perpetuation of the blind’s lack of access to copyrighted materials a “book famine.”

It is “the property maximalists versus the Utopians,” says Christopher Sprigman, a professor of intellectual property and antitrust law at the University of Virginia. And, he adds, “It’s an unproductive battle.”

How unproductive was demonstrated on Capitol Hill earlier this year. A Senate bill, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA), proposed giving the U.S. government and copyright holders new legal weapons to battle websites — especially foreign ones — that infringe on legitimate property. A House bill, the Stop Online Piracy Act (SOPA), would have allowed the United States to go after advertising networks, payment organizations, search engines and service providers that did business with infringing sites. SOPA was cosponsored by U.S. Rep. Bob Goodlatte (R-6th District), chairman of the House Judiciary Subcommittee on Intellectual Property, Competition and the Internet. “We have got to find new ways to cut off the money and cut off the access to these criminal sites,” he told the Roanoke Times earlier this year. 

Sprigman’s “property maximalists” supported the legislation. They included organizations such as the Motion Picture Association of America and Major League Baseball and companies such as Nike, Nintendo, and Pfizer, all of which have products that are popular targets for pirates and counterfeiters.

“Utopian” opponents to the bills included Facebook, eBay, and AOL, which cited concerns about censorship. “Copyright and IP [intellectual property laws] are one method for monetizing creativity,” says Parker Higgins, an activist with the San Francisco-based Electronic Frontier Foundation, “but they shouldn’t prop up one method at the expense of freedom of speech.”

On Jan. 18, Google and Wikipedia and about 7,000 other anti-SOPA websites went dark in protest of the bill. Google also collected millions of anti-SOPA signatures and organized boycotts of companies that backed the legislation.

The upshot? PIPA and SOPA went nowhere, and the debate rages on.

Of course, many U.S. laws already are on the books to protect intellectual property against both “piracy,” which means making an exact copy of a protected product or service, and “infringement,” which is an attempt to pass off a copy of a protected property as genuine. Jonathan Hudis, a partner in the trademark and copyright group of the Alexandria law firm of Oblon, Spivak, McClelland, Maier & Neustadt, explains that patent laws protect inventions, trademark laws protect services and products, copyright laws protect authorship, and trade secret laws protect business advantages.

The problem is that since the digital revolution, theft has become so easy, Hudis says. Once upon a time, a pirate would have to make a physical copy of a movie or a music album. Now, a pirate can have an unauthorized digital copy for sale around the world in seconds. According to Steven Tepp of the U.S. Chamber of Commerce, rogue websites that feature illegal products receive 53 billion visits a year and cause $135 billion in economic hardship for legitimate businesses.

Hudis characterizes “the PayPals, Visas, and MasterCards of the world” as “enablers of foreign infringements.” The tabled bills, he says, would have been an attempt to “turn off the financial engine so no profit would be left.”

But Arlington-based Rosetta Stone is not waiting for Congress to act. The Fourth Circuit Court of Appeals in Richmond recently agreed to hear the language-learning company’s previously rejected trademark-infringement suit against Google. Rosetta Stone, which also has operations in Harrisonburg (part of Goodlatte’s district), says that Google sells its trademarked phrases, including “Rosetta Stone” and “language library,” to companies that illegally copy or infringe upon its software. When Google consumers search on those trademarked words, links to rogue sites come up. In June, Google filed a motion in federal court in Alexandria to have the complaint dismissed.

Michael Wu, general counsel and corporate secretary for Rosetta Stone, says that rogue sites, primarily based in China, Russia and Southeast Asia, mimic the look of the legitimate site, making it tough for consumers to distinguish the genuine from the fake. The prices of the knockoff products also are high enough to “be within reason,” he says.  A tipoff on the illegitimacy of one site? Wu says the message on its home page said, “Welcom.” Another tipoff, even though the logo, the packaging and even the product manuals can be almost identical to the real thing, is that all genuine Rosetta Stone products are made in Virginia.

Rosetta Stone is not a large company, Wu says. It has about 1,800 employees, but it has to employ three full-time investigators just to monitor and scan for illegal sites. If Google and other search engines would only “do the right thing and self-police,” he says, “that would go a long way.”

But Sprigman doubts that more policing, whether voluntary or enforced, is the ultimate answer. “The idea that IP law will prevent all copying is absurd,” he says. More controversial, however, is his theory that the protection of intellectual property is not necessary in all fields of endeavor. In a soon-to-be-released book, “The Knockoff Economy,” he and co-author Kal Raustiala , a UCLA law professor, argue that imitation sometimes can increase innovation rather than threaten it.

The fashion industry, for example, is rife with fake designer duds, but cheap copies of haute couture actually have added to the cachet and popularity of the genuine products of top designers, the professors say.  Football, cuisine, and the financial sector are other sectors that they cite as arenas in which imitation and innovation comfortably coexist.

And even when they coexist uncomfortably, as in the music business, Sprigman believes that may not be a bad thing. Yes, music labels are feeling the pain of having lost control over the dissemination of their copyrighted material, but where once the music business was dominated by “a few mega stars and a lot of broke nobodies,” he says, “now many more artists have a chance to carve out a living.”

Obviously, Sprigman’s laissez-faire approach falls into a gray area in a landscape of black and white in which even the blind become political footballs. But until more nuanced views are admitted to the discussion of intellectual property rights, expect to see more litigation than legislation dominating the headlines.

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