In her excellent “What’s not wrong with PIPA and SOPA“, Pam Chestek makes the point that Copyright and Trademark are very different:
They are wrongfully placed under the same umbrella of “intellectual property” when they have nothing in common. They are authorized by different parts of the Constitution. They protect different interests – intellectual creation on the part of copyright and fair trade on the part of trademark.
She notes that fair use, free speech, censorship, and unfair competition are inevitable concerns in Copyright enforcement, but that these issues arise differently and more manageably in the case of counterfeit physical goods, if they arise at all. PIPA and SOPA might have been fixed, she implies, if they had been written to target only counterfeit physical goods and not also online Copyright infringement. And she reminds us that counterfeit physical goods — such as pharmaceuticals and parts for automobiles and airplanes — don’t just endanger corporate profits, but also public health and safety.
All of which raises the question: Why are we debating overly broad legislation with enormous potential for crippling unintended consequences and little chance of achieving the stated goal rather than looking for narrowly focused solutions to a life-and-death problem? When it seemed that government-mandated DNS blocking might become law, bypass technologies appeared almost immediately. But imagine, instead, if our goal were a targeted, trusted mechanism — perhaps even crowd-sourced — for identifying lethal or dangerous counterfeit products, and delivering that information to the public. Maybe, just maybe, we might have taken a life-saving step forward, leaving for another day the illicit streaming videos, bit lockers, and even cut-rate drugs re-imported from Canada.
Pam Chestek ends her article with this observation: “The manufacturing industry threw in its lot with the content industry and lost.” We can see her point in every Chris Dodd presentation and every Cary Sherman editorial that equates the urgency to block “pirated” movies and songs with the spectre of lives lost due to counterfeit drugs. This is politics at its most cynical, holding the health and safety of the American public hostage to the perpetuation of an obsolete business model.