Obama’s Apple patent pardon reflects global IP hypocrisy

Obama’s Apple patent pardon reflects global IP hypocrisy

Summary: Watching from the other side of the world, it’s easier to see the fine line between intellectual-property pragmatism and bald hypocrisy – and Obama’s poke in Samsung’s eye just crossed it.

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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.

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Apple: Aggrieved innovator or just the home-town favourite? The world is watching as Obama decides. Image: CNET

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?

Topics: Patents, Android, Samsung, Mobility, Legal, iPhone, iOS, Government US, Apple, Australia

About

Australia’s first-world economy relies on first-rate IT and telecommunications innovation. David Braue, an award-winning IT journalist and former Macworld editor, covers its challenges, successes and lessons learned as it uses ICT to assert its leadership in the developing Asia-Pacific region – and strengthen its reputation on the world stage.

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68 comments
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  • You nailed it

    The real test - one that will be pointed to many years into the future - is when Obama will have to consider whether to veto a ban on Samsung.

    I believe that he will *not* veto the ban, exposing American hypocricy and that of the Obama administration for everyone (but Americans) to see. They hope to sweep it under the rug.

    But the case is so clear: Two cases, same two companies, both cases about patents. When the ruling is that Samsung prevails over Apple, the ruling is vetoed. When the ruling is that Apple prevails over Samsung, the ruling stands.

    Why should anyone outside USA respect USA companies intellectual property, when so clearly USA will not respect foreign companies' IP?
    honeymonster
    • Re: Why should anyone outside USA respect USA companies intellectual proper

      Might be, because the US have lots of shinny new guns and too many zombie soldiers ready to pull the trigger?

      As for Apple and Samsung... it's very simple. Things like the ITC bans exist solely to provide grounds for restricting foreign companies competition with domestic companies. If Samsung will declare they are an US corporation, swear to the flag, the President etc (whatever you Americans do) -- then ITC can side with them. Until then, c'est la vie.

      Obama was merely reminding ITC what they exist for.
      danbi
      • You just can't stop, can you?

        "..too many zombie soldiers ready to pull the trigger."

        Commenting on tech/tech companies, or even world governments is one thing. Slandering those that may be called upon to make the ultimate sacrifice is simply tasteless. I suspect you aren't so casually critical when the DPRK is rattling their sabres.
        Nierteroth9
        • Maybe he wasn't talking about people.

          I though he was talking about drones.
          marchel@...
          • Drones are not...

            soldiers. People are soldier. Drones are equipment. Soldiers do think for themselves or they would be worthless. His comment was a insult to everyone who has ever worn a soldiers uniform.
            Test Subject
        • No, he's likely one of those that want to reap what others sow

          and complain that they aren't "sowwing" fast enough for his liking.
          William Farrel
    • Common sense

      Ashok Jaga, if Obama does not veto the ban against Samsung products, it is not "hypocrisy"... it is common sense.

      These are two completely different cases. Obama stepped in for Apple because (as in other countries) Samsung was using its SEPs as ransom instead of offering them to competitors under FRAND conditions, as it agreed to do and is required to do. In some countries, Samsung is currently facing legal action for using its SEPs anti-competitively.

      On the other hand, the Apple patents that Samsung has been found guilty of infringing were proprietary to Apple. For this reason it is almost certain that Obama will not over-ride the courts' decisions against Samsung.
      Harvey Lubin
      • hypocricy or common sense?

        your definition of "common sense" sounds very indistinguishable with that of hypocrisy to me.
        Think this way, FRAND, just like goods, doesn't make any sense unless you can exchange it for something. Making it simple for you: If Apple or Microsoft want billions of $$$ for the rounded corners and similar cr@p patents with a lot of documented prior art, while paying almost nothing for FRAND patents with real technology, this is fundamentally unfair and wrong.
        eulampius
        • s/hypocricy/hypocrisy/

          .
          eulampius
        • The problem with your analysis

          is that the FRAND agreements are pretty clear cut. You want your patent to become a standard, you agree to FRAND. It really isn't that hard a concept to figure out.
          baggins_z
          • There's just one rather major flaw in your analysis...

            The ITC ruled *against* Apple in that decision. What that meant was that by their determination, Samsung was offering a fair and reasonable license that Apple chose to ignore.

            FRANDing a patent doesn't magically make it free. You're still obligated to pay for it if you use it. It just puts more restrictions, obligations and expectations on the patent holder to make the patent available for licensing as rates that might be lower than they might have gotten otherwise in order to make sure no one is discriminated against.

            Obama's solution was essentially to circumvent a legal body (a trade organization) in order to protect an American company. It's really that simple unless you can show Samsung wasn't playing fair (and thus violating the spirit of FRAND). The fact that the ITC ruled in Samsung's favour tends to argue against that.
            The Werewolf!
          • Simple

            So you know the terms of the deal with apple versus the reported lower rates to other parties based on quid pro quo agreements on other patents. But then you knew this and all the terms of the deal that the ITC passed as right and proper.
            Little Old Man
        • @eulampius

          Beautifully stated!!
          MelbourneTweetr
      • Common sense is subjective

        You can make any side of any issues "sound" like common sense by simply adding a one-sided description of the issue. If you ask someone in New York, they will tell you how getting rid of all the Republicans is just common sense. In the bible belt, they will tell you how getting rid of all the Democrats is just common sense. Each place operates under different expectations.
        A Gray
      • Common Ignorance

        Are you telling all of us that the ITC does not have common sense?
        Or maybe only when it is self-serving?
        Bradish@...
      • You don't know the details of this, do you?

        Based on your comments which ignore the fact that the ITC found in samsungs favour?
        Little Old Man
    • Some of us Americans see it too.

      "...exposing American hypocricy and that of the Obama administration for everyone (but Americans) to see..."

      And we feel he should at least be consistent. But we don't expect it.
      ye
  • Can you IMAGINE the outcry from those cheering the veto?

    Every single time apple has lost a patent case outside of the US (and they've lost nearly EVERY single patent case outside of the US) the apple fanboys go nuts about how evil all those other countries are and how they just hate American companies, etc.

    Let's take a look at this from a South Korean point of view by turning the tables.

    Let's pretend that apple won a ban against Samsung in South Korea. Then, hours before the ban was to be enacted, within days of the Samsung CEO meeting with government officials behind closed doors, the ban is vetoed.

    Can you IMAGINE how the very same people cheering this travesty of justice here in the US would react to that? They would go NUTS.

    apple lost the legal battle. A little bit of lobbying though got them to win the political war.

    What a shame. What a travesty. I'm ashamed that apple is an American company. Ashamed. This is corruption at its worst.
    toddbottom3
    • Re: Let's pretend that apple won a ban against Samsung in South Korea

      Why you expect us to believe this is not actually happening?

      Tell us, Toddy. Are you American? Do you know why the ITC ever exists? Why they put bans?
      danbi
      • @danbi

        Just to let you know (if you haven't noticed) Apple and Microsoft are in same fraternity/sorority of outrageous patent trolls that also seem to happily abuse (getting away with it pretty well) the FRAND patent system. They even help each other. Apple wrote a letter to ITC to not impose a ban on Xbox products. As the old saying goes: "Manus manum lavat"
        eulampius