"IP and the Moral Maze: a Rejoinder
I was misled. Every day I look forward to IKAT and JIPLP. And the title of the November editorial "IP and the moral maze" led me to believe I had an ally, that someone else understood my sometimes-feeling that IP owners have discarded morality in favor of greed and self-righteousness. But it appears I was wrong.
As a premise, the editorial set forth the following:
We all knew, without any sense of doubt, that
* copying is wrong;
* using another's intellectual creation so as to obtain a gain at his expense is unfair;
* intellectual creation is entitled to legal protection in exchange for the disclosure of its intellectual content to the public;
* investors in new products and services are more confident of seeing a return on their investors when free-riders are kept at bay for a reasonable period.
All is good until the final bullet. What exactly is a “free rider”? Is it a counterfeiter who intentionally copies a trademarked article in order to deceive the public into believing it is other than a fake? Is it the person who sneaks a camcorder into a movie theatre to permit downloads of hit movies before even opening weekend has expired? Or is the term, in this context, referencing downstream suppliers and distributors who freely sell and resell genuine merchandise for which the “investor” has already received its reward? Is “free rider” an intentionally prejudicial term against wholesalers and distributors not bound to those marketing investments mandated by manufacturers luring “authorized” distributors to a selective supply chain in a world more and more dependent upon a borderless economy?
At this point, I assume many readers have branded me a traitor and may have even already left the page to read a more reasonable article. So, what can I say to lure you back? I have been working with brand owners since before the Internet. I have worked with businesses for years and years to build strong, global IP portfolios. I could not be more opposed to or appalled at or about counterfeiting and blatant piracy. I agree that technological innovations have simplified copying, making appear right what has always been considered wrong. I also “get” that manufacturers have and should have the right to contractually and territorially restrict sales made by their “authorized” distributors. I am however angry when the rights holders file lawsuits not against their distributors for breach of contract as a result of unauthorized sales to third parties, but against these downstream purchasers. I am angry at the way rights holders manipulate courts and congress into believing that they are incredibly injured by purported “free riders” when they have been paid for the products and consumers depend upon the competition and access provided by downstream, discount retail outlets. I am angry that it is easier to pass legislation or for countries to enter into treaties potentially criminalizing lawful product resales, than it is for governments to insist that private businesses enforce their contracts. I am angry that the smallest of website operators are expected to know the IP laws of every jurisdiction in the world as the only means of avoiding lawsuits from powerful brand owners. I am angry that innovators are more eager to collect damages through litigation than they are to value technology as an advance to our society as a whole. And I am angry that because I am angry about these things my friend, IKat, may consider me morally deficient.
JIPLP editorialized that the starting point for things going downhill was when IPR became subject to economic analysis:
You can exclusively possess and control a painting, a plot of land, or a piece of pottery—but you cannot own a market for goods or services. So for the innovator who creates a market, the question was no longer ‘how can he keep what he has created?’ but ‘how can the market, once created, be competitive?’
Why, in the world, is this a bad thing? How can we, in the 21st century, believe that an obligation to ensure competition is the starting event for the “rot’ setting in?
It is not ok to counterfeit. It is not ok to infringe. It is not ok to cheat at your taxes , rob a bank or deprive a man of his privacy. But it is just as not ok to lump parallel traders into a pile of morally deficient commoners without appreciation for law or private property. It is possible to believe in the value of IPR, while still believing that the goal of innovation is not to quash competition. It is possible to take the moral high ground by insisting that the bad guys who steal technology go to jail while, at the same time, defending the rights of purported “free riders” to ensure global access to critical, safe, authentic, branded merchandise --- even if such unfettered access provides unwanted competition to those incredibly moral technological “investors”.Thanks, Laura, for your viewpoint -- and for taking the trouble to let us share it. I concede that morality and the benefits of a competitive market are not inherently mutually exclusive, though once a debate on IP takes place on the basis of economic criteria it can be hard for moral issues to muscle their way in.