On counterfeiting and piracy

I was reading a Techdirt article about the US Attorney General equating counterfeiting with piracy, and starting thinking about the two.
What is the difference between a "counterfeit" tube of toothpaste and a "pirated" CD ?
Seems to me that it's actually fairly simple these days. The "counterfeit" is an inexact copy whereas the "pirated" is an exact copy. Because music, movies, etc these days are digital, they can be replicated exactly bit-for-bit. Thus whereas there's a consumer protection reason to be worried about "counterfeit" goods (because the safety parts may well be the expensive parts and hence the parts that don't get replicated), that's not the case for "pirated" goods.
I guess that a copy of a movie that used a lossy compression to reduce the file size isn't an exact copy of the original, but it's always going to be a viable substitute, and there are never going to be any safety issues.

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Differences -- and politicians supporting terrorism...

Counterfeiting is all about deceit, and trying to convince a customer that the thing they are buying has a different source or contents. Like trademark law, the intention of anti-counterfeiting laws is consumer protection. I don't see how it has anything at all to do with whether the contents are or are not identical to a non-counterfeit source, although we do tend to worry more the more dissimilar they are.

You can have a counterfeit CD that is 100% identical to an authorized version. What is counterfeit is the suggestion to the purchaser that what they are getting is appropriately paid for. In some countries the recipient of an unauthorized copy may themselves be liable for infringement, so this deceit of the recipient matters.

Piracy previously only referred to theft at sea, then referred to commercial copyright infringement, and extremely recently to any mass-scale copyright infringement. I don't believe whether the copy was identical or not has ever been relevant to the use of the term.

Are you narrowly discussing how things are different for the recipient, and thus whether there is a public safety component? If the recipient thinks they are receiving something from an authorized source, then the offense against them is counterfeiting. If the recipient knows what they are getting and its unauthorized source, then they are simply complicit in piracy. In that case I agree the two have nothing in common from a public safety point of view.

Now to the real meat from that article you didn't include: the suggestion that "piracy and counterfeiting fosters terrorism.".

It should be obvious that any strongly enforced prohibition, where the general public doesn't support that prohibition, will help fund organized crime and other harmful activities (Including terrorism). This was the case for prohibitions against alcohol consumption, and it will be the same for increased prohibitions against unauthorized sharing of knowledge.

What is missing from the discussion is the fact that increasing the enforcement of the prohibition can only increase how lucrative this will be for organized crime. This means that these politicians trying to increase infringing activities or enforcement against non-commercial activities are effectively working in favor of organized crime and the funding of terrorism groups.

Free/Libre and Open Source Software (FLOSS) consultant.


I knew as I was writing this that there was room for further exploration. :-)

And yes, I dislike the way the term "piracy" has grown in scope to the point where it's not really very useful any more (it used to be very useful to be able to distinguish "piracy", meaning infringement for profit, usually on a commercial scale from what happens at home when somebody burns a copy of a DVD for their own use).

I'm not entirely convinced that it's just a question of misleading the purchaser. My wife has bought DVDs on eBay that professed to be genuine but turned out to be (presumably) unauthorized copies. So those were counterfeit ? Meaning that the MPAA is right ? It feels different to me than toothpaste or purses.

As for funding terrorism, I felt that was the least interesting part of that article because it's so obvious. If you make something both profitable and illegal, guess where the profits will go ?

Deception is the key to counterfeiting..

If something is marketed and sold as being "Genuine", and someone buys it assuming it is when it is not, then I would consider that counterfeit.

Sure it feels different than toothpaste and purses, but that is why claiming that all counterfeiting can have public safety issues is so wrong. While there is some overlap between some of these different concepts, they are not the same. It isn't just tangible vs intangible that is the division -- I would say automotive parts and toothpaste can (but won't always) have public safety issues (whether counterfeit or just dumb procurement), while purses and multimedia can't.

Just because some of the infringing material is also counterfeit, doesn't mean all or even most of it is. And it is on this latter point that I strongly disagree with the RIAA/MPAA/BSA (and their "Canadian" counterparts) and their attempts to confuse these terms and issues.

These lobbiests have made no real attempt to differentiate between lost revenues due to legitimate/legal competitive and other market factors, revenues lost from non-commercial infringement, commercial infringement, and counterfeiting. These are 4 different scenarios that are being lumped together as if they are all one, and in all cases the proposed solution is controversial changes to the law. And in my estimation it is the first (legal/legitimate changing market conditions) that is in fact the largest factor, not the illegal factors.

Take a look at the WCT and WPPT -- while there are things in there that allege to deal with mass copyright infringement (debatable whether they are effective even at their alleged goal), there is nothing in there that deals with questions of deception and thus nothing to do with counterfeiting. Those people who share music, movies and television shows using online P2P tools don't believe that the source is genuine, and none are trying to suggest that the stuff they are unlawfully sharing is genuine. No attempt or success at deception, then no counterfeiting.

The same with tangible goods. If you deliberately purchase a poor quality product that doesn't have any CSA or related symbols on it, and you get hurt in the process, then this isn't counterfeiting. It is a stupid procurement practice that the customer is entirely to blame for. The question isn't whether the product is safe or not, but whether there was an attempt at deception about the origins/quality/etc of the product.

You may have felt the Terrorism funding part was the least interesting part, but this scare tactic is key in convincing politicians to blindly make radical changes to the law. Harmful unintended consequences can get swept under the rug if you (invalidly) claim you are just trying to stop the terrorists from winning. While I realize this statement is controversial, we need to drive home that terrorism isn't a force of nature but the predictable outcome of questionable foreign policy, and the solutions can't come from more questionable domestic and foreign policy.

Free/Libre and Open Source Software (FLOSS) consultant.