Tuesday, May 01, 2007

Patents and piracy

Is it just me, or does this seem ... at odds?

Yesterday, The US Supreme Court ruled that Microsoft is not liable for patent infringement of AT&T software when the software is sold overseas in places like China.
The Supreme Court sided with Microsoft Corp. on Monday, finding that U.S. patent law doesn't apply to software sent to foreign countries.

In a 7-1 decision, the court rejected AT&T's position that it is entitled to damages for every Windows-based computer manufactured outside the United States using technology that compresses speech into computer code.
Today, the Bush administration threatened to flex some muscle toward countries, like China, that violate copyright and other intellectual property protections.
China, Russia and 10 other nations were targeted by the Bush administration for failing to sufficiently protect American producers of music, movies and other copyrighted material from widespread piracy.
The Supreme Court's reasoning in the Microsoft case is entirely bizarre -- software is like a "blueprint"?
The Supreme Court said software should be treated like exported blueprints and schematics....
However, the difference between the two situations is one of legality. Patent law has never been considered to be enforceable beyond borders. But the Bush administration is not approaching this from a legalistic perspective. They know piracy is happening. They and the companies for which they are acting want it stopped and they're willing to impose sanctions to stop it (Would they require China to stop Microsoft from using AT&T software? You'd think AT&T would have a little pull here considering how accommodating they've been of Bush's NSA black-ops domestic surveillance program.)

But these back-to-back episode demonstrate a rather conflicted view of things, which other countries, like China, will no doubt find puzzling. On the hand, one American company can pirate another American company's software and be absolved of infringement because the software was sold in China. At the same time, the Bush administration is threatening sanctions against China for piracy of American produced "software." The piracy of movies and music is no different than piracy of software, which is also huge in Asia. You can buy any kind of software you want in Bangkok or Shanghai -- Microsoft Office, Photoshop, etc. -- for pennies on the dollar. I'm sure that the White House considers pirated software, eg. games, as much a part of the foreign offense as music and movies. The real difference is that this is a situation in which Chinese companies are stealing from American companies and not one in which one US outfit is ripping off another.

There are obvious legalistic issues involved but the two situations still appear entirely at odds and ultimately makes US outrage at piracy look, if not disingenuous, then at least conflicted. It's only bad when someone else is doing it, an attitude we find redolent in much of American foreign and trade policy. American firms will happily use loopholes like China to skirt IP law and get the Supreme Court's blessing for doing so. But when the Chinese are doing it directly, well, there will be hell to pay.


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