Intellectual property piracy: The narrative construction of deviance

International Journal for the Semiotics of Law

Volumn 10, Issue 1, 1997, Pages 55-78

  Halbert, Debora ^a  

^a OTTERBEIN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34247424357     PISSN: 09528059     EISSN: 15728722     Source Type: Journal    
DOI: 10.1007/BF01099260     Document Type: Article

References (80)

1. Hackers have also been constructed as deviants for the purposes of providing intellectual property boundaries. For my treatment of the hacker threat please see Debora Halbert, "Discourses of Danger and the Computer Hacker," The Information Society 13 (1997), forthcoming.
2. S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham and London: Duke University Press, 1989), 25.
3. S. Cobb and J. Rifkin, "Neutrality as a Discursive Practice: The Construction and Transformation of Narratives in Community Mediation", Studies in Law, Politics, and Society 11 (1991), 81.
4. Supra n.3, at 74.
5. M. de Certeau, The Practice of Everyday Life, trans. Steven Rendall (Berkeley, Los Angeles, London: University of California Press, 1984), 123, 125.
6. Or, as Cobb and Rifkin put it, to uncover how hegemonic processes work. See supra n.3, at 69-91.
7. This language is used in almost every analysis of copyright. For example: "Intellectual property rights are society's attempt to achieve a balance in this fundamental tension among information providers and users. Patents, trademarks, and copyrights allow creative interests to extract a return to dieir investments in exchange for making available new technologies, products, and artistic efforts." See K.E. Maskus, "Normative Concerns in the International Protection of Intellectual Property Rights", World Economy (September 1990), 387.
8. For a closer look at these original metaphors see M. Rose, Authors and Owners: The Invention of Copyright (London and Cambridge: Harvard University Press, 1993).
9. The Berne Convention, an International agreement on copyright, has existed since 1886. 17 U.S.C.A. provides die amendment to include the Berne Convention in U.S. Copyright statutes. The World Intellectual Property Organization (WIPO) was created in 1967 and the Universal Copyright Convention (UCC) was created and administered by UNESCO beginning in 1952. See R.P. Benko, Protecting Intellectual Property Rights: Issues and Controversies (Washington D.C.: American Enterprise Institute for Public Policy Research, 1987), 1-8.
10. Supra n.9, at 6.
11. S. Nowell-Smith, International Copyright Law and the Publisher in the Reign of Queen Victoria (Oxford: Clarendon Press, 1968).
12. W.P. Alford, "Intellectual Property, Trade and Taiwan: A GATT-Fly's View", Columbia Business Law Review (1992), 107.
13. Supra n.11, at 15, quoting Mr. Graham Pollard.
14. Supra n.11, at 64-84.
15. Supra n.11, at 77.
16. To highlight this transition it is interesting to note that the United States didn't join the Berne Convention on the protection of copyright until 1988, 100 years after it was written and signed by most major participants. Even after signing the Berne Convention, the U.S. continued to reject one of its major components - moral rights. Moral rights give certain rights to the author, even after the copyright has been sold. Since the Berne convention requires all signatories to harmonize their laws in concordance with the convention, the moral rights posed a problem for U.S. compliance. Finally, it was decided that the U.S. met the moral rights requirement through a combination of federal and state laws. See P. Goldstein, Copyright, Patent, Trademark and Related State Doctrines (Westbury, NY: The Foundation Press, 1993, 3rd ed.), 771.
17. S.W. Waller and N.J. Byrne, "Changing View of Intellectual Property and Competition Law in the European Community and the United States of America", Brooklyn Journal of International Law 20 (1993), 8.
18. Intellectual Property and International Issues, Subcommittee on Intellectual Property and Judicial Administration of the House Judiciary Committee, May 15 and 16, 1991, Testimony of John H. Barton, 199.
19. Supra n.18, at 199.
20. Supra n.9, at 1.
21. Supra n.9 at 1, quoting President's Commission on Industrial Competitiveness, Global Competition, The New Reality (Washington D.C., 1985), 52.
22. A. Subramanian, "The International Economics of Intellectual Property Right Protection: a Welfare-Theoretic Trade Policy Analysis", World Development 19 (1991), 945.
23. Bill Gates claims that software is the country's sixth largest manufacturing business, having grown nine times faster than the rest of die U.S. economy between 1982 and 1993. A.R. Edge, "Preventing Software Piracy Through Regional Trade Agreements: The Mexican Example", North Carolina Journal of International Law and Commercial Regulation 20 (Fall 1994), 175. See also Steven Levy for a review of the beginning of the computer industry.
24. S. Levy, Hackers: Heroes of the Computer Revolution (New York: Anchor Press, 1984).
25. Apple Computer Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983). The court decided that Franklin's Macintosh compatible operating system infringed upon Apple's copyright by directly copying the code. Franklin claimed there was no protection of computer code under copyright.
26. Supra n.12, at 99.
27. D. Smith, "News: Corporate Losses due to International Copyright Piracy", Cu Digest 6.57 file://etext.archive.umich.edu/pub/CuD/Cud/index. html#files (June 26, 1994).
28. W. P. Alford, To Steal a Book is an Elegant Offense: Intellectual Property Law in Chinese Civilization (Stanford: Stanford University Press, 1995), 112.
29. Supra n.27,at 113.
30. Alford does an excellent job of illustrating the pressure put on China since the early 1900's to pass intellectual property laws which favour Western countries. Supra n.26, at 30-55.
31. India and Thailand were also placed on the priority list, but made moves towards stronger protection quickly. Even though Thailand continues to be closely watched, both countries were taken off the priority watch list in 1994.
32. Supra n.27, at 113.
33. Supra n.27, at 113.
34. S. Awanohara and L. Kaye, "Patently Hostile: Washington Set to Impose Sanctions on China", Far Eastern Economic Review (September 5, 1991), 69-70.
35. P. Engardio, "Yankee Traders Breathe a Sigh of Relief", International Business (February 3, 1992), 39, 42.
36. "Mickey Mouse Back in China", Far Eastern Economic Review (November 4, 1993), 46.
37. K. Huus, "Back to Normal: U.S.-China Trade War Looms Closer", Far Eastern Economic Review (January 19, 1995), 52.
38. L. Kaye, "Trading Rights: Beijing Exacts a High Price for Copyright Accord", Far Eastern Economic Review (March 9, 1995), 16.
39. Supra n.37, at 16.
40. Supra n.37, at 16.
41. Supra n.37, at 16.
42. Supra n.33, at 69.
43. Alford's book details this history. Supra n.26.
44. E. Helpman, "Innovation, Imitation, and Intellectual Property Rights", Econometrica 16 (November 1993), 1247-1280.
45. Supra n.7, at 388.
46. Supra n.7, at 405.
47. Supra n.26, at 104.
48. G.M. Hoffman, Curbing National Piracy of Intellectual Property, The Report of the International Piracy Project, (The Annenberg Washington Program, 1989), 9.
49. Supra n.47, at 9.
50. Members of the Annenberg Antipiracy Project felt these numbers were insufficiently valid to base policy recommendations upon. See supra n.47, at 25. In the words of Alford, the USTR not only asked companies to estimate themselves, but used the full price of the object to calculate the amount lost to piracy. This mediod ignores the fact that many people who can afford the pirated version of an item would be unable to afford the "real" version and thus refrain from buying it (this would be true even if U.S. goods are sold for less than their U.S. rate in foreign countries). See supra n.12, at 99.
51. Supra n.12, at 99-101.
52. Supra n.47, at 11.
53. Supra n.47, at 29-31.
54. "The focus of our hearing this morning is piracy. We are going to stop piracy of intellectual property rights. The copyright industries in this Nation provide jobs, they provide entertainment, they contribute significantly to what would be a favourable balance of trade, or at least a far more favourable one were it not for the fact that this piracy goes on." International Piracy Involving Intellectual Property, Hearing before the Subcommittee on Trade, Productivity, and Economic Growth of the Joint Economic Committee. 99th Congress, March 31, 1986, Statement of Pete Wilson, 1.
55. Supra n.53, at 1-2. Statement of Pete Wilson.
56. Supra n.53, at 21. Statement of Pete Wilson.
57. Supra n.53, at 22. Statement of Pete Wilson.
58. Supra n.53, at 23. Statement of Pete Wilson.
59. See P.E. Ross, "Cops versus Robbers in Cyberspace", Forbes (September 9, 1996), 134-139.
60. Supra n.53, at 26. Statement of Jack Valenti.
61. Supra n.53, at 27-28. Statement of Jack Valenti.
62. Supra n.53, at 50. Statement of Charles Morgan.
63. Supra n.53, at 50. Statement of Pete Wilson.
64. Supra n.53, at 31. Statement of Jack Valenti.
65. Supra n.53, at 54. Statement of Stanley Gortikov.
66. Supra n.53, at 54. Statement of Stanely Gortikov.
67. Supra n.53, at 86. Statement of Frank G. Wells.
68. Supra n.53, at 87. Statement of Frank G. Wells.
69. "I am somewhat cheered to report that with some well-conceived, and I think carefully implemented suggestions from the United States, the Governments of Taiwan, Singapore, Malaysia, South Korea, and the Philippines have enacted, or have pledged they will enact, laws which will be protective of material that's copyrighted." Supra n.53, at 28. Statement of Jack Valenti.
70. "The United States is the world's leader in creativity, both artistic and industrial." Supra n.18, at 2. Statement of William J. Hughes.
71. Supra n.18, at 9. Statement of Carla A. Hills.
72. Supra n.18, at 43. Statement of Carla A. Hills.
73. The link between who we consider piracy threats and the countries we want increase market access to cannot be left unconsidered. American companies wanted access to two markets which represented enormous profit potential - China and India, but also the Newly Industrialized Countries of South and East Asia. These markets remained relatively untapped by American products, but represented our fastest growing markets for exports. These countries also had few, if any, intellectual property laws which meant American law had to be introduced to make the climate safe for American products.
74. Supra n.18 at 123. Statement of Jack Valenti.
75. Supra n.18, at 137. Statement of Ralph Oman.
76. Supra n.18, at 202. Statement of Stanley M. Besen.
77. Supra n.23, at 175.
78. M. Foster, "U.S. firms battle the pirates of Taiwan", Electronic Business (April 3,1989), 83-84.
79. For a breakdown of what each ASEAN country did to comply see S.J. La Croix, Intellectual Property Rights in ASEAN and the United States: Harmonization and Controversy, Private Investment and Trade Opportunities (PITO) Economic Brief (Honolulu HI: East-West Center, December, 1994).
80. William Preston Jr. outlines the U.S. perspective on the position of the third world in international development. He states: [the United States] offered the Third World] orderly economic growth, stability, technical assistance, and political reform; [the Third World] in turn had to fit into the world economy on [United States] terms, follow the [United States] model of development regardless of their indigenous culture, and stop short of choosing radical political alternatives. Order took the precedence over democracy, and containment against fundamental change in the world system retained a dominant priority. Dollar diplomacy, loan embargoes, and financial sanctions against international agencies offending United States interests served to enhance the latter's pervasive influence. See W. Preston Jr., Hope and Folly, (Minneapolis: University of Minnesota, 1988), 20.