Kenya's High Court Rules Anti-Counterfeiting Law Is Unconstitutional Because It Threatens Access To Generic Drugs

Back in 2009, Techdirt wrote about an interesting challenge to a then-new law against counterfeits in Kenya, on the grounds that it might be used to stop perfectly legal generic variants of drugs being imported into the country. That matters, because around 90% of drugs used in Kenya are generics, which means that blocking them would have serious implications for healthcare in that country. 

On Techdirt.

As Michael Geist and others have pointed out, ACTA is the Anti-Counterfeiting Trade Agreement without the main sources of counterfeits being involved -- notably, China. This has required some skilful footwork on the part of ACTA supporters, who need to justify the ratification of a loosely-worded treaty with potentially harmful effects on Internet service providers, civil liberties and developing countries, but which doesn't provide the key benefit claimed in its name. Here's how the European Union's representatives tried to deal with this issue in a "statement on IP Enforcement Trends" made at the WTO Council for TRIPS: 

On Techdirt.

ACTA Update X

As far as we can tell, ACTA has been put on hold for months, maybe even a year, while the European Court of Justice (ECJ) considers its compatibility or otherwise with European laws. But that doesn't mean everything has stopped. The European Parliament has begun examining ACTA from various viewpoints through its committees. 

On Open Enterprise blog.

ACTA Update V

The European Commission's defence of ACTA has essentially two prongs. The first is that "ACTA changes nothing for Europeans"; I discussed why that was simply not true in my previous two updates. The other is: "we need ACTA to protect our economies from counterfeiting." Leaving aside the sleight of hand that blurs the distinction between physical counterfeits and digital copies - something I've noted before - I want to show why this claim too is false.

On Open Enterprise blog.

A Rational Way To Dispose Of Counterfeit Designer Clothes: Donate Them To The Homeless

The narrative around counterfeit goods usually ends with their seizure. We rarely get to hear or see what happens to them afterwards unless some token burning or breaking is laid on for the cameras' benefit. That makes the following story doubly noteworthy: we not only find out where fake designer clothes go after they have been seized in the UK, we discover that they are put to an excellent use: 

On Techdirt.

Spotting Counterfeit Chips Is Hard; Spotting Digital Piracy Is Even Harder

One of the favorite techniques of those pushing for ever-more severe penalties for copyright infringement is to blur the distinction between analog counterfeits and digital copies. The argument then becomes: "counterfeit drugs can kill people, therefore we must come down hard on online filesharing." This trick can be seen most clearly in ACTA, which stands for "Anti-Counterfeiting Trade Agreement", but where the most problematic sections concern digital piracy, not counterfeits. 

On Techdirt.

Just Because Something's Fake Doesn't Mean It Can't Be Innovative

The term "shanzhai" literally means a fortified mountain village, and originally meant those places in China that were outside government control, and hence not subject to its law. Today, by extension, it refers to Chinese outfits producing counterfeit goods that ignore intellectual monopolies like patents. 

On Techdirt

How Rigorous Will the RAND Report Be?

Reports on piracy are like buses: you wait for ever, and then three come at once. In a way, that's not surprising. To begin with, the content industries thought they didn't need to bother with facts, and could simply define the debate with their ex cathedra pronouncements. And that worked for a while, because naive politicians seemed to believe them.

But then a few ill-mannered types pointed out that the Emperor had no clothes, and so, to back up their claims, the copyright maximalists commissioned a few reports that did, amazingly, back up their claims. And then the troublemakers (oh, that would be people like me) actually took the, er, trouble to read the reports in detail, and to check the methodology, only to find that both were pretty worthless: based on extremely naive assumptions, or simply ignoring important parts of the picture.

Worse, research started emerging that piracy really wasn't that much of a problem (lots of links in this submission to the IPRED consultation - BTW, I do hope you've submitted yours, since today's the last day...)

The obvious response to this turn of events is to commission yet more research that's a little bit more rigorous, but that still comes up with "right" answer on piracy. The danger is that this is precisely what the "The European Observatory on Counterfeiting and Piracy" is up to here:

Much of the EU’s output is not the work of officials but rather of thousands of firms contracted per project. Tender reference MARKT/2010/03/D requested proposals for:

A study to assess the scope, scale and impact of counterfeiting and piracy in the internal market, through a defined methodology for collecting, analysing and comparing data.

This study will be the flagship publication of the European Piracy and Counterfeiting Observatory. The tender process concluded in December and the winner was announced in January: the RAND Corporation (UK), and they will be paid half a million euros for their labours.

That same blog post has a good explanation of why we have reasons to be worried:

Their selection warrants unease because although they would not be regarded as IP specialists, they do have form: in 2009, their US organization produced a lengthy report ‘Film Piracy, Organized Crime, and Terrorism’. This study was financed by the Motion Picture Association, and much of the documentation compiled was assembled by a consultant on ‘organized crime’ employed by the MPA. RAND did at least disclose the relationship with a vested interest.

...

A reading of the document leaves one in no doubt that it’s primary objective is to convince the public that ‘piracy and counterfeiting is not a victimless crime.’ As a result the frame through which the subject is analysed is one where these activities are basically just the work of gangs, which need to be deterred, requiring more enforcement resources and tougher sentences -. it’s sort of the square-jawed GI Joe school of IP policy, in a comic book universe of make-believe economics.

So, how can we little people - the ones that are actually paying for all this work, but that are never allowed to provide any input - head off this danger of a biased, misleading report emerging from RAND Corporation?

I think the only way is to starting making noises about the fact that it *might* be biased and misleading, so that those preparing it at RAND Corporation know that we are watching them like proverbial hawks, and that we will assuredly tear their methodology to pieces when it comes out, and will thus be certain to find - and brandish - the slightest lack of rigour or bias therein.

Got that, RAND Corporation people? Excellent.

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Piracy is not Counterfeiting: Updating IPRED

As promised, I append below a near-final draft of my response to the European Commission's consultation on IPRED. Once again, I urge you to submit something if you possible can - this is deeply wrong-headed stuff that needs fixing if openness and freedom are to thrive online.

On Open Enterprise blog.

Piracy/Counterfeit Bait and Switch

As I've noted before, one of the tricks used in the current ACTA negotiations is to blur the lines between counterfeiting and piracy, and to switch between the two whenever it suits the argument. So it's no surprise that a conference bringing together many intellectual monopoly maximalists, the grandly-titled "Global Congress Combating Counterfeiting and Piracy", used the same trick.

The emphasis is very much on the frightening "big numbers" of counterfeiting:

the problem of counterfeiting is growing, which is illustrated by a report on challenges facing the world in 2011, which was recently published by Robert Greenhill from the World Economic Forum. The report says that the illegal economy, corruption, and organized crime all work together to the detriment of society. It estimates the total value of counterfeits in the world to be $360 billion, including $200 billion in counterfeit medicines and $50 billion in counterfeit cigarettes. There is also $60 billion worth of pirated videos. This lessens the economic competitiveness of many countries.

Even if we accept what are probably inflated numbers, the last sentence is simply wrong. Countries where counterfeits are widely sold may damage themselves in the long term through fake medicines, but in the short term they keep more money in the local economy, which is likely to boost their competitiveness since it allows for greater economies of scale there.

Similarly, a speaker from Interpol talked about:

two specific operations taken in the past year to combat piracy and counterfeiting. Operation Jupiter 5 in South America involved 13 countries and led to over 7000 arrests and the seizure of over $200 million worth of counterfeit goods.

Meanwhile:

Gerhard Bauer, President of the International Trademark Association (ITA) noted that the size of the counterfeiting phenomena is so vast that it is hard to grasp, and that it leads to the ruination of many legitimate businesses. The ITA participated in a summit yesterday to discuss how different organizations can work together to build awareness of the program and to build support for ACTA.

None of this, of course, has anything to do with Internet piracy, and yet, as the mention of ACTA reminds us, it is precisely in this field that intellectual monopolists have been most active - and disproportionate in their demands.

The crucial role of ACTA was admitted during the conference:

ACTA is very important because it is more ambitious than any other previous agreement, including unique provisions on seizure and destruction of infringing goods; more criminal prosecutions; more possibilities for enforcement at the border. Especially significant, ACTA is the first treaty that specifically deals with the internet. He noted civil society concerns with ACTA, which he called “legitimate,” but which “must be allayed.” ACTA is compatible with the Doha Declaration, won’t interfere with trade of generic drugs, contains and contains no measures for intrusive searches of passengers. Civil society must be convinced of this.

Again, there is the confusion between counterfeiting - "seizure and destruction of infringing goods...enforcement at the border" - and the digital world, whose goods cannot be seized or destroyed, and for which borders are largely nominal.

Significantly, as the speaker seeks to address "civil society concerns with ACTA", he does not mention the fact that ISPs will be forced to become agents of intellectual monopolists, or the knock-on loss of privacy that will result, or the chilling effect this will have on free speech. That's because he has no answer to these very serious criticisms of ACTA, which has been pushed through largely by exploiting the deliberate confusion between counterfeiting, with its undoubted analogue risks, and digital piracy, which has none.

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Why ACTA is Not a Victimless Treaty

The best thing I have read about the current brouhaha surrounding Craiglist's shutdown of its “Adult Services” section is danah boyd's post "How Censoring Craigslist Helps Pimps, Child Traffickers, and Other Abusive Scumbags". If you're at all interested in the issue, I strongly recommend it.

One paragraph struck me in particular:

During the height of the moral panic over sexual predators on MySpace, I had the fortune of spending a lot of time with a few FBI folks and talking to a whole lot of local law enforcement. I learned a scary reality about criminal activity online. Folks in law enforcement know about a lot more criminal activity than they have the time to pursue. Sure, they focus on the Big players, going after the massive collectors of child pornography who are most likely to be sex offenders than spending time on the small-time abusers. But it was the medium-time criminals that gnawed at them. They were desperate for more resources so that they could train more law enforcers, pursue more cases, and help more victims. The Internet had made it a lot easier for them to find criminals, but that didn’t make their jobs any easier because they were now aware of how many more victims they were unable to help. Most law enforcement in this area are really there because they want to help people and it kills them when they can’t help everyone.

Now, think about what this is saying: that the FBI could help many more victims of these appalling crimes, but can't, simply because they don't have the resources to do so. Now, consider the effects of ACTA, which will add a whole new set of responsibilities that the FBI and others will be required to shoulder.

To be sure, there may be some increase in funding, but the way these things usually work is that politicians grandstand about all the amazing laws/treaties they have pushed through, but omit to mention that they don't fully fund them (because that would mean tax rises or cuts elsewhere).

That leaves the FBI and others being stretched even more thinly, forced to pursue counterfeits of varying seriousness. But worst of all, if the current ACTA text is any indication, they will be forced to spend time trying to stop file sharing, an impossible and hence pointless task.

Worst of all, because all that time could have been used to help victims of all those other, rather more serious crimes like child pornography, which the FBI says it knows about, but can't deal with. In the face of that continuing and unnecessary suffering, tell me again why ACTA is so important?

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The Truth about Fakes (and Piracy)

Here's a fascinating item:

A new EU-funded report has declared that it is OK to buy fake designer goods.

The study, co-written by a Home Office adviser, says consumers benefit from the market for knock-off designer clothes at knock-down prices.

It also rejects the complaints of designer companies, claiming that losses to the industry as a result of counterfeiting are vastly exaggerated – because most of those who buy fakes would never pay for the real thing – and finding that the rip-off goods can actually promote their brands.

The report adds that the police should not waste their time trying to stop the bootleggers.

It disputes claims that the counterfeiting of luxury brands is funding terrorism and organised crime, and argues there is little public appetite for tough law enforcement measures as consumers enjoy the bargains offered by the illegal trade, which has been estimated to be worth £1.3 billion in the UK.

Professor David Wall, who co-authored the report and advises the government on crime, said the real cost to the industry from counterfeiting could be one-fifth of previously calculated figures.

There are a number of interesting points here.

First, is the obvious one of what the research claims about the difference between the real threat of fakes and the, er, fake threat that the industry likes to proclaim.

Secondly, there is the similarity between what is going on here and what the content industries claim about the extent and damage of piracy.

But in many ways the most striking thing about this story, which effectively declares fake goods to be socially acceptable these days, is its provenance. It appeared not in some lefty rag, but in the The Daily Telegaph, not known for its whacky, pinko leanings.

My reading of this is that whatever the industries concerned might say about how awful, deceptive and damaging fakes and piracy are to the economy, ordinary people - and the newspapers that try to mirror their views - know that the true picture is rather different. It also means that ACTA is even more wrong-headed than even I thought.

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Act on ACTA: Write to Your MEPs

As long-suffering readers will know, I've been banging on about the dangers to free software – and much else – of the Anti-Counterfeiting Trade Agreement (ACTA) for a long time. The bad news is that ACTA hasn't gone away or got better in that time; the good news is that more and more people are becoming aware of just how awful it is, and why the secrecy surrounding its negotiations is just plain wrong.

On Open Enterprise blog.

EU's Unconvincing ACTA Act

The EU has made an official statement [.pdf] on ACTA. As you might expect, it is as wriggly a wriggly thing as a wriggly thing can. Here it is, with a few annotations:

The Commission can inform the Honourable Member that the Anti-Counterfeiting Trade Agreement (ACTA) will be in line with the body of EU legislation, which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data. This includes the Intellectual Property Rights' relevant aspects of the Telecoms package.

As for being in line with "EU legislation", this *already* allows ACTA-like provisions, so that's cold comfort.

ACTA should not contain measures restricting end-users’ access to the internet that would not be appropriate, proportionate and necessary within a democratic society and without a prior, fair and impartial procedure.

These are the same weasel words used in the Telecoms Package, and have no real weight whatsoever without judicial oversight: no protection there.

It is the Commission's view that ACTA is about tackling large scale illegal activity, often pursued by criminal organisations, that is causing a devastating impact on growth and employment in Europe and may have serious risks to the health and safety of consumers. It is not about limiting civil liberties or harassing consumers.

That may well be; but the great ACTA bait and switch means that civil liberties *would* be limited, and consumers *would* be harassed.

So, "no points - nul points - keine Pünkte", I'm afraid, for that attempt at mollification.

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ACTA Goes on the Charm Offensive sans Charm

Sorry to rattle on about ACTA, but it seems there's something of a concerted campaign to "counter" all the noise we little people are making. Here's a line that might sound familiar, this time from Stanford McCoy, "Assistant United States Trade Representative for Intellectual Property and Innovation":

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

Yes, the old counterfeit = "pirated" equation. And to add insult to injury:

Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Oh dear, I must have blinked and missed all that public discussion and "enhanced" public engagement....

My prediction: there's lot's more where this came from.

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EU's Gallo Report: Rubbish Recycled

I've noted several times an increasingly popular trope of the intellectual monopolists: since counterfeiting is often linked with organised crime, and because counterfeiting and copyright infringement are vaguely similar, it follows as surely as night follows day that copyright infringement is linked with organised crime.

Well, that apology of an argument is now being recycled in the draft of the Gallo Report [.pdf], "on enhancing the enforcement of intellectual property rights in the internal market," from the Committee on Legal Affairs of the European Parliament:

there are proven connections between various forms of organised crime and IPR infringements, in particular counterfeiting and piracy

Well, maybe between organised crime and counterfeiting, but I challenge anyone to provide evidence that it's linked to infringements of copyright ("piracy").

This is not the only example of a lazy and totally biased reuse of old arguments employed by the content companies. Earlier in the document we find a similar parroting of the inaccurate statements put about by industries dependent on intellectual monopolies:

violations of intellectual property rights (IPR), defined as any violation of any IPR, such as copyright, trade marks, designs or patents, constitute a genuine threat not only to consumer health and safety but also to our economies and societies

*Counterfeiting* can certainly be a threat to consumer health and safety, and needs to be combated vigorously, but the idea that copyright infringement might be is simply risible, and it's an insult to our intelligence even to suggest it.

innovation and creativity have considerable added value for the European economy and, taking account of the economic context, they should be preserved and developed

Well, yes, but they are quite separate from the enforcement of intellectual monopolies, I'm afraid.

the phenomenon of on-line piracy has assumed very alarming proportions, particularly for the creative content industries, and whereas the existing legal framework has proven incapable of effectively protecting rights-holders on the Internet and the balance between all the interests at stake, including those of consumers

There is no balance whatsoever: the original 14-year term of copyright is now life plus 70 years in many jurisdictions: the consumers are *never* considered in any of this. This claim is totally one-sided in favour of the monopolists.

The report even stoops to the level of advocating brainwashing the young, when it

Stresses the need to educate young people to enable them to understand what is at stake in intellectual property and to identify clearly what is legal and what is not, by means of targeted public awareness campaigns, particularly against on-line piracy

What it means, of course, is that it wants to bully them into accepting the lazy, arrogant, monopolists' view that they are entitled to their old business models, that nobody is allowed to innovate around digital content, and that the little people like you and me should learn to shut up.

All-in-all, this is one of the most disgraceful pieces of work I have ever seen from the European Parliament: a true blot on the otherwise laudable record it has of defending the rights of the European public that elected it. If it wants to retain its credibility with the latter it should reject this load of nonsense and start again.

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Declaring War on European Computer Users

The eagle-eyed Monica Horten has spotted something:

Following a question on counterfeiting and piracy from Italian MEP Salvini, Michel Barnier admitted that he and the new Trade Commissioner, Karel de Grucht, will be negotiating with the US on the ACTA (Anti-counterfeiting Trade Agreement). This is, I think, the first public admission by the EU that it is negotiating on ACTA. Following a further question asking what action he would take to support creators, he cited the ACTA negotiations as an important step. He said it would put Europe on the same level as al regions of the world.

He said " of course there is freedom of information, but there is also freedom of creation... it is necessary to balance that freedom of information with the right of artists to earn money". He said he would work with Commissioner Reding (Justice and Fundamental Rights). He said it was important to inform the public, but also to change the legislative framework. I think I understood him correctly - and if I did, this is a significant statement, because until now, my understanding is that the official line on ACTA is it not about changing the law.

That's certainly a crucial point, but I think that the post contains something even more important - and frankly terrifying:

In his opening statement to the European Parliament, he outlined his priorities. The second priority was to promote creation and innovation, and the protection of the rights of creators. In his view, it is necessary to adapt the rules for the electronic world. He said that 'la creation' is being weakened by counterfeiting and piracy, and he wants to eradicate it and will support the Observatory on Counterfeiting and Piracy which was set up under his predecessor.

"Eradicate piracy"? This man either knows nothing about the technology or nothing about people. Seeking to eradicate "piracy" is about as sensible as seeking to eradicate "drugs" or "terrorism": it shows yet another politician happy to mouth platitudes without any thought for their real consequences, which would be nothing less than declaring war on hundreds of millions of European computer users. The next few years are beginning to look grim.

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Is EU Parroting the ACTA Lie?

I've written several times about the trick that ACTA uses to blur the distinction between large-scale, criminal counterfeiting, and domestic, personal copyright infringement. Sadly, the EU seems to be following the same script:

In Europe, counterfeiting and piracy have a dramatic and damaging effect on business and they have the potential to become even more problematical due to the recent economic downturn and the growing range of fake products being sold. While luxury goods, fashion, music and film products have traditionally been targeted, today counterfeiting and piracy affect a wider variety of mass consumption goods such as foodstuffs, cosmetics, hygiene products, spare parts for cars, toys and various types of technical or electrical equipment. In particular, the increase in fake medicinesis of growing concern.

IPR infringements cause widespread economic harm and an increasing number of counterfeit products now pose a real threat to consumer health and safety. It is therefore in the interest of stakeholders and consumers alike to have a responsive enforcement system which is robust, proportionate and fair.

Notice how "piracy", which presumably includes file-sharing, morphs into counterfeit products that "pose a real threat to consumer health and safety" - not to mention that weasel word "proportionate"?

As La Quadrature du Net points out:

The communication calls for so-called “voluntary agreements” between rights holders and ISPs in order to fight filesharing, without prescribing the practical measures that could be implemented through such agreements. We know however that the Commission has held several meetings in the past few months with representatives of both rights holders and ISPs. Also, it seems that the Anti-Counterfeiting Trade Agreeement (ACTA) currently negotiated at the international level could provide a basis for the strategy the Commission calls for in the communication.

All-in-all, worrying stuff that we need to keep a close eye on.

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Microsoft Gets in on the ACTA

The other day I was writing about the great digital bait and switch:

Counterfeiting morphed into copyright infringement

...

there's clearly a collateral campaign underway to support ACTA by hammering on the wickedness of counterfeiting - allowing the bait and switch game to be played again.

Now it looks like Microsoft is joining in:

a common tactic of intellectual property holders is to blur the distinction between counterfeit and pirated goods (and even legal generic goods, in the case of the pharmaceutical industry). Microsoft's press release exemplifies this, talking about "counterfeit Microsoft software purchased at resellers" and the "black market for pirated software" as if the two were synonymous. In fact, most consumers who obtain pirated goods on the black market realise that they are not original. Whilst Consumers International discourages consumers from using pirated goods, in many countries they have little choice, because originals are either unavailable or are priced far beyond their means.

The post, from Consumers International, also points out:

there is a strong argument that copyright protection of computer software is skewed against the interests of consumers. In most countries computer software is protected for between 50 to 70 years after publication - so for example Windows 95 will not become free to copy until at least 2045. Even after the copyright expires, it may be impossible to make a copy due to technological restrictions (which, in many countries, are illegal to bypass). Assuming that you can make a copy, you still won't have access to the original source code that was used to create the software - which means that it can't be used as a building block for new works in the same same way as public domaini music or literature.

It also offers a solution to this state of affairs:

So if copyright on computer software is unbalanced against the interests of consumers, but if Consumers International does not advocate the use of pirated copies, how can consumers around the world have access to safe and high quality computer software? One option that many consumers around the world have found useful is the use of free and open source software.

Great to see people connecting the dots.

The Great Digital Bait and Switch

One of the (many) things that get my goat about ACTA is the sheer dishonesty of the project. It was originally put forward as aiming to curb large-scale counterfeiting - hence its name, Anti-Counterfeiting Trade Agreement.

It was sold as only going for the "big fish", with promises that ordinary people wouldn't be inconvenienced. In fact, it was purely for their benefit, its proponents explained, since one of the most heinous kinds of counterfeiting it attempts to tackle is counterfeit drugs - an undeniable health hazard.

But then something strange happened. Counterfeiting morphed into copyright infringement, and yet all the legal heavy guns aimed at massive, criminal counterfeiting remain, now ranged against little you and me.

What's interesting is that there's clearly a collateral campaign underway to support ACTA by hammering on the wickedness of counterfeiting - allowing the bait and switch game to be played again. Here's an example:

Canada trails far behind the United States, United Kingdom, Japan and France by not enacting tougher laws and penalties for selling imported bogus goods, an anti-counterfietting conference heard yesterday.

Lorne Lipkus, of the Canadian Anti-Counterfeiting Network, said a private members' bill will soon lobby Parliament for expanded copyright laws, seizure rights similar to those that block suspected fake goods entering the U.S., plus heavier sentences for convicted sellers and importers.

The Toronto lawyer and conference organizer estimated Canadian manufacturers lose $20 to $30 billion and thousands of jobs to cheaper knockoffs.

We are warned against "knock-offs": counterfeit goods are clearly knock-offs, but so, in the minds of the media cartel, are unauthorised copies of copyright material. The difference between counterfeit and copyright has been subtly elided. As a result, the solution demanded for this large-scale counterfeiting of goods - clearly *physical* goods - is "expanded copyright law".

Nor is this the only underhand attack. Here's a very poor article in the Wall Street Journal:

The palm-sized Arduino serves as an electronic brain running everything from high schoolers' robots to high-end art installations. But perhaps the oddest thing about the device is the business model behind it.

Plans for the Arduino, a simple microcontroller board, are available online, and anybody may legally use them to build and sell knockoffs.

This, in some ways, is even worse. It's equating the ability to *build* on the work of others, and improve upon it, as another kind of "knock-off". This is not just wrong-headed, but really pernicious, because it implies that open source is little better than counterfeiting.

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