Pirate pinchers

The first time I really registered international piracy, I had just met the Dalai Lama in Dharamsala, India. I had recently graduated from law school and was in India mountain climbing. I had my long-arranged meeting with the Dalai Lama and was set to head out on a climb in a couple of days. So after absorbing more spirituality in the past few days than I had in the previous 23 years, I needed a quick dose of pop culture.

A ‘movie house’ in town showing Madonna’s Truth or Dare documentary was just the right fix. It did occur to me as I paid a few rupees for a very cheap ticket that perhaps this little converted restaurant did not have a proper licence to display this work. Without too much more thought, I entered and took my seat – a small wooden stool. As the movie began, I realised something was wrong. I could barely hear the sound, but I could hear popcorn being crunched even though there certainly was none to be found in Dharamsala. Then I realised that the head blocking my view was not attached to the person in front of me – it was on the screen. I had just paid to sit on a stool in a restaurant in the Himalayas to watch a pirated copy of Truth or Dare shot in a darkened cinema with a handheld video camera.

It is not just a counterfeit video being displayed in a village in the Himalayas that spurred more than 50 of the largest companies across the globe to join forces this month in the form of a group called Business Action to Stop Counterfeiting and Piracy (Bascap).

Created under the auspices of the International Chamber of Commerce, Bascap was established to help educate and lobby government officials to increase awareness of counterfeiting, the harm to societies it causes and to increase enforcement efforts. The primary difference between Bascap and other anti-counterfeiting trade groups is its broad multi-industry base. Single industry-focused trade groups such as the Business Software Alliance or the Motion Picture Association have combated piracy for some time. Some of the most notable in the US have been the Motion Picture Association of America and the Recording Industry Association of America, representing the film and recording industries respectively. In recent years they have stepped up their education and enforcement activities. These efforts have been controversial but effective and have included the recent US Supreme Court ruling in MGM v Grokster (overturning a lower court’s ruling, which had given a safe harbour to Kazaa and other peer-to-peer network software providers).

Bascap members come from a wide array of industries, ranging from film studios to software companies to pharmaceutical companies and auto parts manufacturers. The common thread between all of these industries is that they are major targets of piracy.

Technology has made piracy accessible enough so that it is no longer just an entertainment issue. Bascap intends to educate government officials as to the harms of piracy and the need for tough laws and the effective enforcement of those laws. As a truly international issue, one of the needs is for a harmonisation of anti-piracy laws across nations. The World Intellectual Property Organisation has been working on this for years, at times making membership conditional upon the enactment of certain standards. The Digital Millennium Copyright Act in the US, for example, providing anti-circumvention restrictions under US law, was passed to harmonise laws between the US and Europe. Bascap’s mandate is to educate and convince government officials that tough laws, harmonisation and enforcement are necessary and beneficial for their countries.

This will not always be an easy task. Indeed, there is the story of the entertainment company executive who was being entertained by a large developing nation’s chief minister in charge of enforcing IP rights. This minister boasted to the executive that he had purchased a legitimate copy of the executive’s company’s new film because the quality of the counterfeit copies was not as good. That country’s chief anti-counterfeiting official exhibited no hesitation in personally purchasing pirated goods except for their quality. Quality may have been the deterrent in that case, but it should not have been the only one.

Traditionally, an anti-counterfeiting programme consists of three elements: education, enforcement and quality. Bascap is focused on high-level education, with the longer-term goal of increased enforcement. Private sector attorneys working closely with government officials have long played a major role in anti-piracy enforcement actions. Often, government enforcement relies exclusively on private attorneys to bring to the fore the basic facts of a case. It will then work with them through the process. Companies affected by counterfeiting can lend aid to the Bascap efforts by continuing to investigate piracy privately and by coordinating their private enforcement activities with government referrals. It is these private attorneys who are often on the front line of educating judges, the media and the public about the extent of counterfeiting, the lost jobs and the potential safety issues.

In the end, Bascap is not a new approach, but instead makes for a renewed effort and a new, broader coordination in the face of a rapidly growing problem. Let us wish Bascap success in its part of this global effort to stem piracy – be it the pirate theatre in Dharamsala, the counterfeit Viagra in Los Angeles, the counterfeit software in London or the counterfeit auto parts in Shanghai.

Craig Cardon is a partner in the entertainment and media group of the San Francisco and Century City offices of Sheppard Mullin Richter & Hampton

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