Geist: tough IP laws suppress political dissent

September 15th, 2010 by Barry Sookman Leave a reply »

In a blog post yesterday, How IP Enforcement Can Be Used To Suppress Dissent, Prof. Geist argues that “tougher enforcement measures” of IP laws are connected with civil rights abuses by governments to quell political dissent. He further claims that the USTR Special 301 report was connected to the recent Russian raids against advocacy groups and news organizations in Russia. He also postulates that enforcement of IP rights under ACTA would increase such abuses and accordingly would be “a dangerous and misguided approach that is apt to cause more problems than it solves”.

This posting is hardly worth responding to, except that some of his readers and syndicated readers might actually believe there is any merit in his claims.  The post is replete with bizarre assertions not backed up by any evidence or logic. set rhetoric to stun

Prof. Geist claims that Russian raids against NGOs “using the pre-text of intellectual property enforcement” “is surely connected to efforts by the U.S. government and copyright lobby groups to actively encourage Russia to increase its IP enforcement”?  What evidence does he rely on for this claim? None.

Prof. Geist relies simply on false logic. A government raids voices of opposition using the pretext of enforcing IP laws. Therefore, having effective  IP laws leads to these types of civil rights abuses. A logical conclusion? Of course not. A government not constrained by the rule of law and looking for a pretext to silence or deter opposition could use any pretext to seize property. Theft, tax evasion, bribing officials, securities violations and a myriad of other criminal offenses all come to mind as pretexts that have been used in the past to silence political opposition. Prof. Geist’s argument leads to the illogical conclusion that it would be dangerous and misguided for any countries with poor records of respecting civil rights and the rule of law to pass effective laws of any kind because they could potentially be abused, regardless of the overall social welfare associated with such laws. If the Russian government had seized the computers in issue based on a pretext that the computers were stolen, could anyone logically have concluded that general laws prohibiting theft had caused the abuses of civil liberties and that tough laws against theft are therfore dangerous and misguided?

Prof. Geist claims that “The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list.” He suggests this is connected to the Russian raids. But, what evidence does Prof. Geist rely on to connect that report to the Russian crackdown on dissidents? None.  

Prof. Geist claims that “The IIPA pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases.” Where does he connect the IIPA report to the crackdown on Russian dissidents? He doesn’t. It is also ludicrous to contend that a call for better enforcement of IP laws against piracy could be a reason for the Russian government to quell political dissent.

Prof. Geist also doesn’t mention that the IIPA pointed out that Russian criminal law had undergone several amendments in recent years, making the existing methodology prepared by the General Prosecutor’s Office outdated. The IIPA therefore recommended that the Ministry of the Interior, the General Prosecutor’s Office, and the Investigational Committee jointly prepare a new official uniform methodology.

Prof. Geist then turns to ACTA claiming that it “will provide Russia with a template to follow on IP enforcement” and will “export tougher enforcement measures …without including the exceptions, due process, and balancing provisions”.  However, in making these claims Prof. Geist inaccurately describes what is publically known about the draft treaty from recent leaks.

ACTA does not create any new IP rights (Art.1.3.2), nor remove any exceptions that may be available under copyright. Parties to ACTA must also ensure that enforcement procedures are “applied in such a manner as to…provide for safeguards against their abuse”. (Art 2.1) The draft Internet Chapter, for example, contains an express requirement that “Each Party’s enforcement procedures shall…  be implemented in a manner… consistent with each Party’s law, preserves principles relating to freedom of expression, fair process, and privacy [EU: , among other [US: fundamental] principles]”. (Art.4.2) Each party is also obligated to “endeavor to promote cooperative efforts within the business community to effectively address {US: copyright and related rights}{EU/J: intellectual property rights} infringement while preserving legitimate competition and consistent with each Party’s law, preserving principles relating to freedom of expression, fair process, and privacy, [EU: among other [US: fundamental] principles]”. (Art.4.3)

Prof. Geist’s claim is even more illogical when one considers the principles behind ACTA. ACTA is an attempt to codify best international practices related to the enforcement of IP including practices in Japan, the EU, Australia, and the US. If Prof. Geist’s thesis is correct, one would expect to find rampant civil liberties violations in these countries attributed to the enforcement of IP laws. Of course, Prof. Geist does not make this claim. Rather, his unsubstantiated claim is that these best practices when exported to other countries would have these effects.

Prof. Geist concludes his post with the assertion that the “recent Russian case highlights why” enforcement of tough IP laws and ACTA “is such a dangerous and misguided approach that is apt to cause more problems than it solves.” The recent Russian incident establishes nothing of the sort. set rhetoric to stun

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