Christian Engström, Pirat

10 november 2009

IP Observatory in JURI

Filed under: English,informationspolitik,IP Observatory — Christian Engström @ 10:55

Rapporteur Marielle Gallo (Christian Democrats, FR) in JURI today

The Legal Affairs Committee JURI today discussed an initiative by the Commission to set up an ”EU Counterfeiting and Piracy Observatory”. I have written about this earlier (in Swedish).

This Observatory should be a cooperation between EU authorities and the ”stakeholdes” (i.e.: the organizations representing big business) to combat on the one hand counterfeit goods, on the other hand copyright infringements on the net.

The big problem with this is that they are mixing two separate issues that have very little to do with each other. Counterfeit goods is a commercial activity outside the law. Everybody agrees that it is a bad thing, even we pirates.

If i buy a pair of Nike shoes or a packet of Marlboro cigarettes, then I, as a consumer, have a right to know that the thing I bought actually is what it says on the box. The primary function of trademarks is to act as consumer protection. If I buy a product that does not live up to my expectations I should know whom to complain to, and if I buy something that I’m happy with I should know where I can get more of the same stuff if I want to in the future.

To combat counterfeit goods is an uncontroversial issue. If and how and how much the EU should get involved (as opposed to just leaving it to the member states) is just a practical consideration. The Pirate Party has no objections in principle to combating counterfeit goods or upholding the existing trademark laws.

But to hunt file shares that commit non-commercial copyright infringements by sharing music and films on the net is quite a different matter. It is, of course, illegal under the current copyright laws. But these laws are currently under very heavy political debate throughout Europe. To just set full speed ahead and increase the level of enforcement is hardly the most sensible way to address this issue. The political debate about copyright reform will not go away by introducing even harsher enforcement measures.

What it boils down to is that the pro-copyright lobbyists (representing the big film and record companies) are trying to make their political campaigns appear more legitimate by hiding behind the companies that are concerned about counterfeit goods and trademark protection.

This was very evident in today’s exchange of views in the JURI. If you read the communication from the Commission, you get the impression that it is almost entirely about counterfeit goods. The word ”piracy” is mentioned a number of times in the text from the Commission, but unless you follow the reference in the footnote on page 3 where the term ”piracy” is defined to mean ”copyright infringement”, you would probably assume that the word ”piracy” was just used as a more emotionally loaded synonym for counterfeiting activities.

But when you listened to the European Parliaments rapporteur Marielle Gallo (Christian Democrat group EPP, FR) she was talking almost exclusively about issues related to file sharing an copyright infringements on the net.

When I spoke in the committee, I made the point the we should at least separate the two issues before we go any further. They are completely separate, and should be treated as such. Just because I as a citizen want to have assurances that my Nike shoes or Marlboro cigarettes are genuine, does not mean that I want the EU:s institutions to spend money on hunting teenagers that share film and music on the net.

I would hope that Nike and Marlboro agree with me on this point. If I were them, I would have no interest in getting my brands associated with the hunt for file sharers. But no matter how the various ”stakeholders” feel about it, we politicians should at least tackle the issue in an intellectually honest way.

Combating counterfeit goods is one thing. Combating the entire Internet generation is another. We in the Pirate Party have no problem with the first, but we have serious objections to the second. Let’s not muddy the waters by confusing the two issues.


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32 kommentarer

  1. Marielle Gallo is in the same party as Sarkozy, right? It shouldn’t come as a surprise.

    You’re right on the spot that counterfeit goods is an entirely different thing. Especially when it comes to medicine where it could actually be life-threatening to supply falsifications. That is a serious enough business to take care of without mixing it up with copyright issues.

    Do what you can to keep this issue clean from copyright discussions.

    Sometimes I feel that many politicians simply have missed that Internet is about information sharing. That is the very essence of data communication. To share information between two computers.

    I heard the Swedish minister of justice Beatrice Ask last week saying that we shouldn’t let Internet become a lawless land and that the same laws should apply even on the Internet. I don’t subscribe to that notion. When new technology comes around, which opens our minds and makes things possible which were not possible before, laws should be reevaluated. Sometimes a law should still apply, and sometimes it becomes obsolete and must be replaced. That’s what we have now with copyright and the information sharing technology called Internet.

    Kommentar av Johan Tjäder — 10 november 2009 @ 12:30

  2. I would say, that if we COULD get the same laws to apply to the Internet as they apply in real life, that would be a huge leap in progress and in protection of my personal life.

    Kommentar av Jan Andersen — 10 november 2009 @ 12:57

  3. @Jan Andersen:

    Well, I see what you mean. But actually the new computer technology has made it that much simpler for the state and corporations to monitor our daily life that privacy laws perhaps should be strengthened. One example is the new intelligence gathering law in Sweden where the National Defense Radio Establishment (FRA) gets access to all communication passing the Swedish border.

    Here, the opportunities of technology was focused on, but not the dangers, while in copyright legislation it is the other way around.

    What unites these two is that legislation is made without scientific facts or experience. Nothing to support that policies enacted are actually beneficial to society. There are only unsubstantiated claims.

    To paraphrase professor James Boyle: George Bush is not the only one taking faith-based initiatives.

    Kommentar av Johan Tjäder — 10 november 2009 @ 13:21

  4. The counterfeit debate must also be nuanced somewhat, the problem is not as black and white as you describe it.

    Lets say that Nike outsource their manufacturing to china and order 1000 pairs of shoes manufactured to their specification. The factory makes 2000 identical pairs, delivers 1000 to Nike and sell 1000 themselves for a lower price. Is this counterfeiting or just a breach of contract?

    What if a wellknown high quality brand also put their name on cheap low quality goods and opens up for other low quality manufacturers to ”get away” with putting the high quality brandname on their products? Is this counterfeiting or just greed and dishonesty of the high quality brand?

    Oscar Swartz blogged about this a couple of years ago.

    What I’m trying to say is that sometimes the one responsible for the ”counterfeit” goods is the same company that yells counterfeit the loudest. (Hmm, do we recognize that from somewhere…) If there should be a counterfeit legislation there must also be a legislation that forces companies to be honest.

    Kommentar av Stefan — 10 november 2009 @ 13:44

  5. ”Counterfeit goods is a commercial activity outside the law. Everybody agrees that it is a bad thing, even we pirates.”

    Yes, but I do think that pirates also generally support the view that this is strictly about consumer protection. Hence, if the customs confiscate items that consumers have bought or if consumers are fined because they buy counterfeit goods then this is not supported by the pirate movement. Just look at the national regulations in Italy for example where a tourist can be forced to pay huge amounts if they are caught buying counterfeit goods. We don’t want anything like that to spread to the EU level.

    Kommentar av Tor — 10 november 2009 @ 14:40

  6. It’s sad I need to say this, but good job. The sad part is that nobody would have brought up that these are two completely different issues without PP in the parliament.

    Kommentar av stroll — 10 november 2009 @ 14:51

  7. I wonder if any of the other members of parliment would have raised the issue with mixing counterfeiting and file sharing? It is clear that by sending Christian to parliment we Pirates have begun the slow but very important task of educating the other elected officials.

    Kommentar av Gustav Wetter — 10 november 2009 @ 14:59

  8. I agree with Oscar. I don’t mind buying a Breitling watch for the price of a Big Mac, and I know it’s a fake and I know that it is inferior quality. I know that I get what I pay for, but I’m OK with that. Does Breitling really lose any money if I buy that fake instead of not buying the original, which probably costs more than an average new car?

    The same goes with other kinds of goods. I can buy cheap motorcycles, guns, medicine, spare car parts, you name it and the Chinese makes it. Yes, I don’t get the same consistent quality, but if I’m happy with the lower quality, why should I care? More important: If I wouldn’t buy the expensive original motorcycles, guns, medicines or car parts, what has been lost?

    Kommentar av Anders Troberg — 10 november 2009 @ 15:42

  9. @Stefan:

    If you teach someone how to make shoes, they may out-compete you making shoes. It’s quite usual for high-quality brands to sell out overproduction at a lower price with a different brand.

    What you cannot do is to use someone else trade mark without permission. That’s like dealing with false identities. It would make it impossible for consumers to make reasonable choices.

    Kommentar av Johan Tjäder — 10 november 2009 @ 15:49

  10. @Tor:

    You’re right. If I buy a fake Rolex watch for my personal usage that should be ok, if you can find a resonable method of define what ”personal usage” is. Are ten watches ok? A hundred? A thousand?

    Kommentar av Johan Tjäder — 10 november 2009 @ 15:51

  11. @Johan Tjäder

    This isn’t a black and white issue! In some cases the counterfeiting exists only because the original companies behave in a way that makes it possible, in other cases it is plain fraud. We need to fight the second case but also demand that companies behave honestly against the consumers so that the first case isn’t an issue.

    In the example with the shoes the actual shoes are identical. The only difference is that one pair is manufactured on behalf of Nike and the other pair is not. If the consumer have access to all available information the rational, and reasonable, choice in this example is to buy a pair that is not sanctioned by Nike as it costs less money for an identical product.
    If it is a problem that others use trademarks without permission then the companies must be more careful with their trademarks! Read Oscars Swartz’ blogpost I linked above. Why is no one counterfeiting Swarovski binoculars?

    It is never reasonable to punish the buyer, either he knows what he’s buying and the problem doesn’t exist or he thinks he buys the real thing in which case he’s a victim. It is the sellers that claims that their goods are legitimate when they are not that is a problem and that very much includes brand names that sells low quality products without clearly identifying them as such.

    As this is being discussed in EU I’m pretty confident that it will end up being another legislation to protect the corporations at the consumers expense but motivated to the voters as being for consumer protection.

    Kommentar av Stefan — 10 november 2009 @ 17:11

  12. Anders Troberg and Stefan have interesting points!

    Why would it be unethical to allow selling fakes? If they are clearly anounced as fakes, i.e. ”Fake Rolex watches – only $10”. The buyer *knows* it’s a fake, and would probably not buy an original anyway.

    I can see the point that Rolex wants to keep its watches exclusive, that only a select few should be able to show off with those. But is that business model good for society and worth all the special legislation and enforcement it requires? After all, it affects only a small minority of goods.


    Kommentar av Werner — 10 november 2009 @ 17:53

  13. It’s acctually tree separate issues, Counterfeit goods (ie. Counterfeited trademarks and look-alike products) and Unauthorized storage and transmission of IP infringing content. that can be divided into:
    1. Sharing of copyrighted material (ie. songs, poems and litterature) and,
    2. Software products that violates invalid patents.

    The problem with ”not so valid” patents is well described by Patent attorney Dan Ravicher, founder and executive director of the Public Patent Foundation.
    ”Just because the patent office granted the patent doesn’t mean it’s valid,”…
    The only way to prove the validity of a patent is to test it in court, which can be a difficult task. ”Only the patent owner can sue you as a way to get the patent in court. There is an exception that says if the patent owner has threatened to sue you, you can take that to court, but if the patent owner doesn’t threaten to sue you, you can’t get the patent into court,”

    Simply put, a ”patent holding” company can block the distribution thru ACTA and demand to the IPRED ”court” that Software that already have reached the market should be withdrawn.
    All of this based on patents off the most basic of Web technologies and practices, and as you don’t have been sued to a court of law, the ”not so valid patent” will become very valid for you.

    Both ACTA and IPRED has to be the most effective devices ever invented to block competition and curb invention.

    Furthermore, I think that Sweden should follow France, Germany, Japan & Spain and ratify UN treaty No.16.
    International Convention for the Protection of All Persons from Enforced Disappearance

    Kommentar av Sjöholm — 10 november 2009 @ 21:57

  14. @Sjöholm:

    In Sweden you can sue the patent holder to establish a legal authority to make business regardless of the patent, if you think you are not infringing, and the uncertainty is damaging to your business.

    I Sverige kan man genom ”negativ fastställelsetalan” av domstol få klarlagt att ens produkt inte inkräktar på ett patent. 9 kap. 63 § Patentlagen (1967:837)

    Kommentar av Johan Tjäder — 10 november 2009 @ 23:16

  15. @Johan Tjäder (10):

    Trademark protection is not about preventing people from buying fake goods, it’s about preventing them from selling fake goods. Thus it makes no difference whether you buy a single fake ”rolex” or a thousand of the same. It’s when you make a living by selling them for profit that the owner of the trademark should take legal action.

    Now, selling and buying of course go hand in hand; you can’t sell something without someone else simultaneously buying it. Does it mean that the buyer is guilty of ”aiding trademark infringement”? No, that’s like saying that you aid robbery by carrying lots of money around and being robbed. If you are one of the victims of a crime, you should not be held for an accessory to that same crime. Please someone explain that to the Italian financial police, and have them stop harassing tourists for buying unauthorized souvenirs.

    And while I agree that the primary purpose of a trademark is identification to the consumer, I think it should be a matter of civil law only, not criminal law (damages to the plaintiff, but no fines to the state or jailtime), as long as nothing more than the reputation of the brand is at stake. The state should merely provide a neutral forum for resolving the dispute, not take an active part in ”deterring” trademark infringers.

    In addition to that, a customer who has been cheated in an actual sale of fake goods should have the right to get his money back, as well as any incurred damages paid. If the seller has shown disregard for the customer’s safety or property, I do consider fines or jailtime to be quite appropriate. This is however mostly unrelated to the trademark infringement claim. Someone who sells untested medicine is of course just as responsible for the customer’s health whether the bottle has ”Noname” or ”Astra-Zeneca” printed on it. I simply don’t want Rolex or Armani to get a free ride having the police enforce their trademarks using the unarticulated argument that swallowing a cheap watch or suit from a competitor may give you ulcer or even kill you. 🙂

    What’s in a name? That, which we call a rose, by any other name would smell as sweet.

    (Shakespeare, Romeo and Juliet)

    Kommentar av Anders Andersson — 10 november 2009 @ 23:32

  16. @Johan Tjäder (14):

    Good point.

    But what will happen if a company with limitless resources have blocked you thru IPRED and ACTA.
    Software patents are on their way into EU, and a harmonization between US an EU’s patent systems will most certanly happen.)

    Ie. Microsoft claims ”thru IPRED and ACTA” that your application faciliates tabbed browsing, they had a valid patent at the time of the claim and get court orders that block you.

    You then have to sue Microsoft in order to get their patent invalidated, Microsoft will of course appeal, and it will probably take 2-3 yrs minimum until the courts have establish who is right.

    During that time, Microsoft’s patent is valid, and due to IPRED and ACTA you can’t sell a single copy of your product, while you have to pay patent lawyers aprox. 250 EUR/h for the litigation with the very real risk that you also have to pay Microsoft’s litigation cost if you lose.

    My guess is, that if ie. Microsoft block you and send you a friendly letter, you will happily pay the licence fee.
    I don’t know why the term ”legalized extortion” comes to my mind.

    Kommentar av Sjöholm — 11 november 2009 @ 0:28

  17. To put it simple: Counterfeit goods is a commercial activity outside the law, copyright infringements on the other hand is usuallay about private comunication.

    Kommentar av Kluris — 11 november 2009 @ 2:00

  18. @Anders Andersson (#15):

    The key issue in my argument is how can you differ personal usage from importing with intent to sell? That’s kind of the same argument as for alcohol import. If the argument is that it’s ok to make products with false trademarks (Tor@#5) for people to buy with informed consent, then you also must deal with the back side.

    @Sjöholm (#16):

    That’s a key argument for abolish the patent system all together, isn’t it? A patent is an artificially made monopoly, which means you need a legal apparatus to maintain it. And big fish can always try to run you over in court, so it’s unjust to have a system that favors the big fish.

    But in the end you still need to judge wether the system promotes invention or strangles it. I’d say those who are favored by the patent system should also prove invention couldn’t happen any other way.

    Kommentar av Johan Tjäder — 11 november 2009 @ 7:37

  19. I smell the foul stench of ACTA. I think you’re right – they’re deliberately putting the two together for strategic reasons. Good on you for calling them out on it. Cheers and thanks again. You’re the best elected representative anyone ever had. Our best to your new partner. Hope she enjoys the city too.

    Kommentar av Rick — 11 november 2009 @ 13:46

  20. @Johan Tjäder (18):

    The big fish can as well be a small company of patent lawyers with a suitable patent portfolio.
    Compared to a start-up company of programmers, they will have limitless resources.

    Software patents in combination with ACTA&IPRED will effectively curb both investment in as well as development of new companies.
    Who will invest in a start-up that can’t guarantee when and if it’s product will reach the market?

    (I don’t think it’s a good idea to involve the patent system in general into this kind of discussion, simply not to lose focus on the issue of ACTA&IPRED.)

    Kommentar av Sjöholm — 11 november 2009 @ 21:43

  21. Excuse me for spamming, but this deserves to be shared.

    Microsoft have patented the Linux command sudo. ACTA: Unauthorized storage and transmission of IP infringing content is prohibited.

    The moment that ACTA comes in force, every new release of Ubuntu et al will be at MS discretion.

    Found at Groklaw.

    Kommentar av Sjöholm — 11 november 2009 @ 22:39

  22. The battle ahead will be an easy triumph for us on the side of the citizen.

    Just challenge the pro-ACTA side to either debate or otherwise kill ACTA.

    Nobody would be so stupid as to debate pro-ACTA, since it’s against all principles of Human Rights and everything else of value.

    Even journalists will let this be known.

    Kommentar av Jakob — 12 november 2009 @ 2:05

  23. Werner: One could even take it one step further.

    Say, for instance, that I buy a gun. Now, I could buy:

    * The original Kalashnikov AK47.
    * An AK47 manifactured on a license in another country.
    * The Chinese Type 56, a Chinese copy of it, slightly modified.
    * The Galil, an israeli copy, a bit more modified.
    * An airsoft replica. Looks like the original, but fires plastic pellets.
    * A plastic toy gun, with a flashing light at the muzzle and a speaker that goes ”tatatatatata” when you pull the trigger.
    * A computer game where a computer model of the AK47 is a playable weapon.
    * A computer game where the Type 56 is a playable weapon.
    * A computer game where the Galil is a playable weapon.

    Now, where in this progression does the term ”counterfeit copy” begin and end?

    As far as I can see, as long as it is clear what you are buying, I’m OK with it. In other words, it’s not the copy that’s the problem, it’s the intent to deceive. These do not have to be related.

    Kommentar av Anders Troberg — 12 november 2009 @ 13:20

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