Stuart Freen is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course
On Tuesday, the RAND Corporation released their latest report “Film Piracy, Organized Crime, and Terrorism”. The report was authored by the independent non-profit think-tank RAND but was funded by a grant from the Motion Picture Association of America (MPAA). As the title suggests, the report draws links between the counterfeit DVD trade and organized crime and terrorism. The report’s cover art is startling, portraying images of guns, bullets, and wads of cash right there along with blank DVDs (no doubt burned copies of all the latest Hollywood hits). According to the report, among the organized crime groups funding themselves through bootleg DVD sales are Canada’s Big Circle Boys, England’s Cockle-picker gangmaster and even the nefarious Chinese Woo Shing Wo triad. These gangs and others were involved not only in copying movies but much more serious crimes like racketeering, drugs and human trafficking. Perhaps even more disturbing are links between movie piracy and terrorist groups in Pakistan, Northern Ireland and Paraguay.
The report is the latest in a series of mounting evidence linking counterfeiting and piracy to organized crime. In the 2007 report of the Standing Committee on Public Safety and National Security entitled “Counterfeit Goods in Canada – A Threat to Public Safety”, the Committee suggests that counterfeit goods are being smuggled into Canada through the very same networks as narcotics. The report also emphasizes the health and safety risks inherent in counterfeit goods, citing contaminated shampoo, lead toys, and sawdust brake pads as some extreme examples of dangerous counterfeits. Similarly, the CACN’s 2007 “A Roadmap for Change” report explores a supposedly worsening trend in Canada of counterfeit goods being distributed through organized crime networks. Interpol and the Criminal Intelligence Service of Canada are worried about counterfeiting, and you should be too.
Yet, despite solid evidence linking counterfeit goods to some of the worst criminal organizations in the world, the RAND report feels a little unconvincing. Most irritating is how it equates piracy with counterfeiting. In almost all the literature on the subject, ‘piracy’ refers to unauthorized reproduction of works protected by copyright and ‘counterfeiting’ refers to trademark violation. The RAND report has this to say on it:
“The terms “piracy” and “counterfeiting” are used interchangeably in this report, although they can mean different things. … We do not insist on this distinction here, because organized crime uses both piracy and counterfeiting to generate profit. We use piracy in a broader sense to refer to the entire process of theft, mass reproduction, and distribution.”
Granted, the unauthorized reproduction of DVDs involves both copyright and trademark infringement, but this willingness to use the two terms interchangeably seems pointed and intentional within the context of the report. Clearly the report is talking about the distribution and sale of hard goods, so why doesn’t it stick with the generally accepted term of counterfeit?
The RAND report is indicative of a wider trend within industry to lump counterfeiting and piracy together. The MPAA along with the RIAA and other media groups have struggled for years against a public perception of copyright infringement as a “victimless crime”. Playing public service announcements at theatres and suing teenagers has done little to stop the “who cares” attitude many hold toward film piracy. Reports such as the ones from RAND and CACN are an attempt to reframe the problem as a social evil on the same level as drugs and human trafficking. The message is strong: Stealing movies supports terrorists and gangs. Yet, at its core they are two slightly different issues: On the one hand there’s online media piracy, and on the other there’s the international trade of burned DVDs. Their hope is that by conflating the two issues people will equate downloading a movie with buying a burnt copy from the flea market. I say all the power to them for trying; Movie piracy in any form is theft and the public’s attitude is disturbing. Nevertheless, the RAND report should be read for what it is: An MPAA sponsored document designed to demonize piracy by association.
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It is doubtful that the MPAA relishes the irony, but with the release of the RAND report, they infringed on one of the pharmaceutical industry’s ‘patented moves.’ Conflating piracy and counterfeiting is a tactic that the industry has previously attempted to use to circumvent compulsory licensing programs. By issuing a license, a government authorizes the production of a generic drug, while remunerating the patent holder with a small, compulsory license fee. Brazil and Thailand, the two most prominent issuers of compulsory licenses, use licenses only on necessary drugs, such as anti-retroviral AIDS drugs.
While counterfeit drugs made with different or improper levels of ingredients pose a serious and inherent danger, generic drugs are based on the patented formula and are regulated by the licensing government. Nonetheless, pharmaceutical companies have labeled the generic drugs ‘pirated’ and have routinely attempted to have them declared illegal along the same lines as counterfeit drugs. In 2007, U.S-based Abbott Laboratories fought tooth and nail against the government of Thailand to lift the license on its anti-AIDS drug Kaletra, likening the licenses to piracy. Echoing the dangers of counterfeit drugs, Abbott cited the problems of generics as inferior, non-Abbott drugs with dangerous health problems. This neglects that generics stemming from compulsory licenses are not counterfeit, but legal according to domestic law and TRIPS.
The classification of legal, generic drugs as ‘pirated’ and the subsequent conflation of piracy and counterfeit is a level of hubris that was perfected by Big Pharma long before the MPAA followed suit.
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