How Can Border Patrol Know Whether Music On Your iPod Is Infringing?

from the they-can't dept

As you may remember, two years ago, when news of ACTA first started getting attention, one of the key initial worries was that it would include language involving border patrol/customs agents scanning computers and other devices for “infringing content.” At the time, many people pointed out that border patrol folks simply are in no position to determine what is and what is not infringing copyrights. Just as Viacom falsely thinks that YouTube somehow can make a similar legal decision on the fly, determining whether or not something infringes on copyright is not that simple. Soon after that, people were reassured that such provisions would not be a part of ACTA. However, it appears that in the latest leaked draft, some countries are supporting language that puts that concept back into ACTA. At that link, Howard Knopf does an excellent job explaining why such determinations should not (and cannot reasonably) be made at the border:

  • A judgment call about whether a particular product is “legal” or not is very often far from clear. For example, running shoes or handbags may be made “illegally” on the same assembly lines as the “real” product “after hours” and be identical in all physical respects to the “real” product. How is the border official supposed to make the determination as to whether the goods are “legal” or not?
  • In the case of parallel imports (which by definition are perfectly legitimate and neither fake nor counterfeit), the factual and legal issues are extremely complex. The US Supreme Court is about to hear a case about whether perfectly legitimate Omega watches with a small copyrighted logo engraved on the back can be imported into the US by Costco. Some of the smartest lawyers and judges in the USA are bitterly divided over how this case should turn out. In Canada, we had the Kraft case involving Toblerone chocolate bars, which resulted in a victory for the parallel importer and a complex judgment from a very divided Supreme Court of Canada (I was counsel for the Retail Council of Canada, whose intervener’s arguments prevailed in the result). There was, of course, immediate speculation about how to get around the judgment but the subsequent court cases of which I am aware have settled or, in the case in which I was involved, fizzled.
  • If the best lawyers and judges have to struggle intellectually about whether perfectly legitimate parallel import goods can be legally imported, are we ready to allow border guards with no legal education, and with no prior judicial oversight to make this initial determination and potentially tie up millions of dollars worth of merchandise for great lengths of time, forcing the importer to go to court to get the goods released?
  • Border officials will inevitably be “educated” and provided with information about suspect shipments by those who may have a vested interest in keeping out parallel imports and may even have an interest in causing serious inconvenience to a legitimate competitor.
  • The recent wrongful seizure of generic aids medicine in the Netherlands was vivid proof that empowering border officials to make difficult IP decisions can lead to serious and even potentially fatal consequences.
  • Somebody should pay for the economic losses resulting from wrongful seizures. Who will that be?
  • What remedies will there be for abuse or misuse of the “ex officio” system by competitors?
  • What if the result of a wrongful seizure of medicine results in harm to health and safety?

There are a few more that are Canada specific (since Knopf is in Canada, and Canada is supporting the provision). Somehow I doubt we’ll see much of a serious discussion of these important points, should this provision actually make it into ACTA.

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Comments on “How Can Border Patrol Know Whether Music On Your iPod Is Infringing?”

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:Lobo Santo (profile) says:

Business as Usual:

The future (in this regard) is easy to predict.

In mafia-speak: The shake-downs will continue as usual. We get our bread from the mooks, they got no say it what happens.

In gov-speak: The law will be enforced, as usual, with a profit motive. Every laptop, iPod, and generic “tablet computer” seized will be sold to pay for the cost of “enforcement.” If the sheeple wanted rights, they wouldn’t be passing through our borders.

Either way, same operation.

kellythedog (profile) says:

And what do they do with the siezed items

They put them right back into circulation.

Border Guard. ” NO it’s ok we donate this stuff to the poor, now you should feel better”
Wonder if they give a tax receipt to the poor person who lost their stuff.
Because of course the poor deserve the crap the privileged can’t have.
Reminds me of the plan a while back about giving the road kill picked up from the highways to the food banks.

Joe says:

similar case

Over here in Vancouver, there is a Gay and Lesbian bookstore that had a stunningly prolonged fight with border customs. Though would purchase books from the States and import it here for sale. It would invariably get held up at customs as ‘obscene’ for weeks/months/years.

The border guards had complete control over what was allowed to pass and what could not. Any blindingly obvious mistakes were still caught up in the bureaucracy and would lead the business to be in a constant legal fight for over 10 years. Thankfully, the store, with the support of the community and authors throughout Canada fought on and was able to survive.

Bottom line – putting a huge amount of power over people in the hands of these guards will most certainly be abused.

Danny says:

I have another item for that list

How about:

Border patrol forces are already tasked with responsibilities such as keeping out dangerous foreigners (and by that I mean actual dangerous foreigners, people with criminal ties, suspects, etc…) and stopping the smuggling of people and various other things like drugs and animals.

In short what makes those people think that their precious “intellecual property” is on par with that stuff? I don’t recall any stories of downloaded songs leading to acts of violence on American soil or funding drug cartels/terrorists.

And another thing. Time. Lets say Tourist Joe/Jane comes through a border and has 5,000 songs on their iPod. Are border patrol forces really expected to be able to spare a person to check all 5,000 of those songs? Now multiply that by a lot considering how many people walk around wit potable media players these days (and don’t forget the tv shows, movies, games, etc….).

Brendan (profile) says:

The illusion on Twitter

Tony Clement (Industry Minister) does a good job of appearing personal on Twitter, but I’m not convinced he actually hears when we (collectively) speak to him.

Some of the things Canada “supports” in ACTA are pretty silly. I really want to know where the pressure is coming from. The US, sure, but through what channels (people) is it being delivered.

darryl says:

and if they dont seize ? and people die from illegal drugs ?

and WHAT IF, they did not seize a shipment of counterfeit drugs, that do not work and people take them thinking they do work and they die ?

They will just say the small inconvience to the few is a safeguard for the many. (or Spock would say it)..

I dont know how many millions would be searched at the borders, but from those millions of searches you cant find a miniscule amount of ‘evidence’ that there is a problem.
(for anyone apart from you and the illegal importers).

Anonymous Coward says:

Re: and if they dont seize ? and people die from illegal drugs ?

Your argument is nonsensical and lacking in logic. How will the border patrol know the medications are counterfeit? Obviously if they’re hidden, yes, but otherwise? The best answer is to enforce a document trail that can be confirmed with the manufacturer. Do they do this? What about mail-order prescriptions? I can order my drugs from Canada at cut rates, but would those be seized? I would hope not.

Anonymous Coward says:

Re: Re: and if they dont seize ? and people die from illegal drugs ?

I can order my drugs from Canada at cut rates, but would those be seized? I would hope not.

Yes, customs has seized many of those shipments. I seems that Customs has determined that it would be better for ill people to die than to endanger US pharmco profits.

There are a lot of darryl types working there.

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