It may have seemed pragmatically necessary for US President Barack Obama to override the US International Trade Commission’s (ITC’s) decision to ban certain iPhone imports, after South Korean giant Samsung’s patent-infringement victory against Apple looked to threaten the iOS dripfeed. And yet, in overriding the rule of justice Obama has exposed a root hypocrisy that weakens America’s moral authority to assert intellectual property control outside of its borders.
This it does, with fierce regularity. The spread of American culture – and the IP related to it – is hardly a new story. And, given the facility with which protected content can now be disseminated across the Internet, American IP-protection interests have been working overtime to assert their rights.
Australia, for one, has seen the results of this first-hand, both in action – for example, the ultimately unsuccessful action by American entertainment interests against major ISP iiNet on allegations it was facilitating mass piracy – and in word, such as the requirements in the Australia-US Free Trade Agreement that Australia harmonise its IP protection laws to those of the US. This is the reason Australian copyright now endures for 70 years after the death of a work’s creator, as opposed to 50 years before the FTA.
Similar issues have persisted in negotiations around the Trans-Pacific Partnership (TPP), in which Australian authorities have had to consider the legal status of geoblocking by largely American content interests such as Hulu and Netflix. Advocacy of geoblocking circumvention emerged, more recently, as a way to resolve controls that are seen by American companies as important IP protection – but increasingly seen by the Australian government as a way of enforcing anti-competitive access and pricing restrictions.
Those issues deal with disharmony between two countries’ laws – which is one thing. In Obama’s case, however, the decision to override an ITC ruling, for the first time since 1987, curiously has one country explicitly overriding its own IP controls. The result has been a very public double-standard that has the “concerned” South Korean government considering legal action and hometown hero Samsung reinforcing its martyr status as a warrior against American IP imperialism.
Intellectual property is the new measles of American colonialism: just as the Europeans wiped out native South American populations during their expansionist search for gold, so too are American intellectual-property lawyers bulldozing over foreign sovereignty in the guise of free trade agreements.
It may be hard to notice from inside US borders, but from the rest of the world it’s clear that intellectual property is the new measles of American colonialism: just as the Europeans wiped out native South American populations during their expansionist search for gold, so too are American intellectual-property lawyers bulldozing over foreign sovereignty in the guise of free trade agreements.
This has very real implications in a country like Australia, where exclusive-licensing deals with US media interests are regularly being used to stifle competition.
Consider Pay-TV operator Foxtel – whose cable services around 20% of Australian homes – which years ago strongarmed one-time rival Optus Vision into irrelevance by securing exclusive rights to a range of popular content. More recently, Foxtel fought off challenges by Apple’s iTunes and Netflix-like on-demand operator Quickflix, which offered Game of Thrones season 3 on an on-demand basis but will be banned from doing so for season 4 because Foxtel has bought all rights to the show.
It’s not as bad as it was decades ago – when popular soaps like Days of our Lives were broadcast in Australia many years after showing in the US – but IP restrictions are still nonetheless distorting the distribution of content outside the US. Many movies still screen in Australia months after they're on DVD in the US; many popular US TV shows air ages later in Australia if at all; and unexplained consistently higher prices for even digital media and games all carry the stink of heavy-handed American copyright imperialism.
No wonder Australia has some of the world’s highest incidence of illegal downloading: restrictively expensive, exclusive legitimate services struggle for traction based on the demands of their American rights holders. Experience shows that, when more-flexible options are available, many people stop illegal downloads – but if IP protection is used more like a stick than a carrot, nothing will change.
Apple faces other IP-related issues in the e-books market, where mooted restrictions on its pricing are being considered as a consequence of a determination around Apple’s price setting. Publishers aren’t impressed at all – but aren’t such restrictions supposed to be the price of IP abuse?
Back to the iPhone. Apple’s victory last year over Samsung was significant both for its size and its import, but Samsung’s own victory – as represented by the US ITC’s decision to support a ban – was even more significant because it showed that the US government held itself to the same standards of behaviour as it expects other countries to do.
The government threw a spanner in the works by deciding to stifle the decision of an independent judiciary. This says an American company does not have to be bound by the same intellectual-property framework that the country is imposing on the rest of the world.
Apple, emboldened by its newfound protector, is making new strides and has been allowed to revive patent claims against Google’s Motorola Mobility unit. Even more problematic, a subsequent ITC ruling found that Samsung infringed upon two Apple patents – and that its products could therefore be banned in the US.
Will Obama once again intervene against such a ban, as some argue it should? This would certainly support its claims that it wants to establish and reinforce a precedent that ITC decisions are more determinations of principle than determinations of an real legal consequence.
The other option is that the administration allow an ITC ban against Samsung’s products to stand, citing the importance of the integrity of IP protection measures. This would be legally allowable but morally reprehensible.
These decisions only have limited impact on most people since they relate to older Apple and Samsung products that aren’t even generally sold anymore. But the potential for important legal precedent is nonetheless significant – and unless the Obama administration is seen to be treating all players equally, its position will reek of domestic favouritism. Content-licensing issues in Australia have long shown how well this sort of hypocrisy goes down outside the US; only time will tell how it goes down inside it.
What do you think? Was the US right to override the ban on Apple products? Should it also override any ban on Samsung products? And, if so, what is the point of these intellectual-property determinations anyways?