Trump Advisor Pens Almost Totally Clueless Piece About 'Intellectual Property Theft'

from the this-does-not-bode-well dept

I realize that there are much bigger issues at hand right now, but those of us who follow copyright, patent and trademark policy have been somewhat perplexed about what a Trump administration might do on that front. The issue was basically entirely ignored by Trump and his campaign during election season. And because of that, you now have lots of organizations on all sides of the debate pressing Trump to simply buy into their views of intellectual property, no matter how inane.

However, I recently came across a piece at Business Insider, entitled “Why intellectual property theft is one of the biggest crimes threatening the US economy,” that was so clueless of the actual issues related to intellectual property, that I went to see who wrote it — only to discover that the author, Diana Furchtgott-Roth, was on Trump’s transition team (something that is not disclosed by Business Insider for unknown reasons). This does not bode well. The whole article is problematic and confused, so let’s dive in.

Many assert that President-elect Donald Trump is against free trade.

Well, that’s mainly because Trump himself has argued that free trade is harmful to American interests and has repeatedly argued for protectionist tariffs and other anti-free trade policies.

But standing against the theft of intellectual property and old-fashioned mercantilism, as Trump has promised to do, is an appropriate role for the chief executive. Allowing other countries to cheat us is not free trade.

So, already, we’re left with a big giant “huh?” Copyright policy, in particular, is itself a leftover remnant of mercantilism. Patents and copyrights are protectionist anti-free trade policies by their very nature. Historically, patents were a key part of anti-free trade protectionist programs by governments, in which they’d give the sole right to produce certain goods to certain “friends” and block out all others. And that’s what copyright and patent law today continue to do, in a slightly modernized form. They still involve central government bureaucracies handing out monopolies and the blocking of free trade. It’s kind of bizarre to argue that actual competition is “old fashioned mercantilism” when copyright and patents themselves are directly old-fashioned mercantilism in action.

And, sure, allowing countries to “cheat” may not be free trade, but what do we mean by “cheating” here, because it mostly sounds like copying. And copying is actually a key part of free market capitalism, because it’s a part of competition and a driver of innovation. How do you compete when someone copies you? You innovate and keep making your product or service better. That shouldn’t be seen as cheating — it should be seen as competing in a free market world. Copyright and patent laws that are too strict directly impede that free market.

From there, the article gets even more inane.

People throughout the world identify with American art, music, software, and clothing designs, and benefit from American pharmaceuticals and patents.

Weird to include clothing designs in that list, since clothing designs are, somewhat famously, not protected by copyright, which has helped it thrive (thanks to competition and rapid innovation). But, more importantly, Furchtgott-Roth seems to make the totally amateur mistake here of assuming that the product output here is the same thing as “intellectual property laws.” This is common among people who either don’t understand the space, or who are misrepresenting the role of copyright or patent laws to push an agenda. The argument relies on the simple fallacy that because some of these things (again, notably not clothing designs) are protected by intellectual property laws, they only exist because of those intellectual property laws, and therefore, we have those laws to thank for them existing.

But, of course, nearly all of the evidence contradicts this — especially in areas of art, music and software. Those are all areas where we’ve seen much more creative output over the past couple of decades, even as “piracy” and infringement have increased. The reason we’ve seen so much output has little to nothing to do with the state of intellectual property laws, but much more to do with innovations, such as the internet and computer technology, that have made it easier than ever to create, produce, edit, distribute, promote and monetize works… without having to rely on gatekeepers.

Yet American intellectual property is routinely stolen.

You mean infringed. It’s kind of an important distinction.

Each year, the United States Trade Representative publishes a report entitled ?Special 301 Report? on intellectual property theft?yet does nothing about it.

Oh goodness. Where to start. First of all, the Special 301 Report is widely considered a total joke by basically everyone with any knowledge of it outside of the USTR. As I’ve said before, I’ve even seen the copyright maximalists at the Copyright Office mock the report. Canada has an official stance that it does not recognize the Special 301 report, because the methodology is a complete and utter joke. More recently, Chile announced a similar position.

And that’s because it is a total joke. There is no methodology. Basically, the USTR allows anyone to submit their “complaints” about certain countries, and it becomes a Festivus-style “airing of the grievances” for special interests. It’s mainly the MPAA, RIAA and similar maximalist organizations that go around whining about any country that won’t pass their preferred laws, even in situations where those laws go way, way, way beyond what we require in the US. One of the reasons, for example, that Canada ignores the Special 301 report was that for years the MPAA got the USTR to put it on the really bad list because Canada wouldn’t criminalize people filming movies in movie theaters.

From there, the USTR basically just picks and chooses whose complaints it likes the most, and rewrites the complaints into the Special 301 report. There is no data. There is no analysis. There is just the whining of the MPAA/RIAA, the USTR and what countries they decide need to be smacked down. Amusingly, if you submit a report to the USTR about how some country is abusing user rights — such as trampling on fair use — well, the USTR will completely ignore that.

Also the “do nothing about it” part is incredibly ignorant of what happens once a country is put on one of the “naughty” lists of the Special 301. At that point, US diplomats start putting ridiculous levels of pressure on those countries to change their laws. The Special 301 report was used to absolutely bully Sweden and Spain into ratcheting up their copyright laws, despite the fact that the public was totally against it in both cases. A few years ago, the US used the Special 301 to bully Ukraine in a way that likely violated the WTO.

In short, the total joke of a policy is (unfortunately) regularly used to apply strong diplomatic pressure on countries to change laws. But that’s apparently not enough for Furchgott-Roth, who acts as if she just discovered the Special 301 before writing up this piece. She wants more:

America should take a tough line with countries on the USTR?s Section 301 Priority Watch List. Here are five suggestions.

  1. We could limit their commercial activities in the United States. Alternatively, we could limit imports of those products with their intellectual property?or ours.
  2. When an American company is being harassed in a foreign country, we could haul the ambassador in and ask what is going on. If China holds up our imports, we could hold up their imports.
  3. If the country is on the special watch list, the Commerce Department could request the International Trade Administration do audits of intellectual property protection in those countries.
  4. We could limit, and not expand, the commercial activities of countries on that watch list.
  5. If a country appears for a second year on the list, the Commerce Secretary could be required to prepare a special report to the President on remedial actions.

Yikes. Again, the list itself is a joke based on no methodology and we already use it to apply a disproportionate level of diplomatic pressure on the countries on that list. And yet, this suggestion is to make it worse. That’s not “free trade” that’s good old fashioned protectionism of American goods. It’s the opposite of free trade. So the crux of this plan is basically letting the MPAA/RIAA decide who the US should block all trade with. What could possibly go wrong?

And, as a kicker, Furchtgott-Roth, suggests that the fact that China has literally been kidnapping book publishers and sellers it doesn’t like is a good example of how it can crack down on copying. Really.

Countries may tell us that it is impossible for them to prevent their citizens from copying our goods. But when China, for example, can make book publishers in Hong Kong disappear because it disagrees with the content of the books, it can certainly close down the fake Apple stores.

For once, I’m at a loss for words. Supporting making political dissidents disappear as a good example of how an authoritarian regime might deal with basic competition is downright frightening.

But, unfortunately, this may be what we have to look forward to under a Trump administration.

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Comments on “Trump Advisor Pens Almost Totally Clueless Piece About 'Intellectual Property Theft'”

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56 Comments
Anonymous Coward says:

“Well, that’s mainly because Trump himself has argued that free trade is harmful to American interests and has repeatedly argued for protectionist tariffs and other anti-free trade policies.”

Well, until all the labor laws, materials, and salaries are on a level playing fields someone loses out in a trade deal somewhere. Those tariffs are specifically to help make executives think again before making things in cheap labor markets to sell them back insides expensive labor markets.

I don’t think anyone wants free trade in actuality! It’s just another buzzword for the unwashed masses!

Roger Strong (profile) says:

Re: Re: Re: Re:

No, other AC is quite right.

Protectionist policies happen even with a level playing field. Ignore Mexico for a moment and look at Canada, which has pretty much the same living and working standards. From wheat to livestock to lumber to manufactured goods the US routinely refuses to honor NAFTA even with a level playing field.

Sure, there are areas where it could be argued that Canada has an advantage via having resources. But the US has its own advantages via things like having ten times the population density and longer growing seasons.

Under NAFTA, the US EXPORTS far more manufactured goods to Canada than it imports. That trade surplus accounts for nearly 600,000 high-paying manufacturing jobs in America, but is hurting Canada. Still want to "level the playing field?"

Anonymous Coward says:

Re: Re: Re:2 Re:

Yea, I don’t even. Do you guys even think before you post?

You essentially just agreed with me, just using different words. Go back and read my post and read yours again. Maybe read it a few thousand times before you get it.

Here is the key part you should pay some attention too.

I posted – “Well, until all the labor laws, materials, and salaries are on a level playing fields someone loses out in a trade deal somewhere.”

You posted – “Under NAFTA, the US EXPORTS far more manufactured goods to Canada than it imports. That trade surplus accounts for nearly 600,000 high-paying manufacturing jobs in America, but is hurting Canada.”

Yes, yes I do want to level the playing field, it is beneficial to do so for ALL parties. When the playing field is not level we get what we have now. Super fucking rich people with a serious grip on world politics and massive accumulations of wealth.

But no… you idiots cannot see past the political nose on your faces.

just quit being stupid! PLEASE!

Anonymous Coward says:

Re: Re: Re:3 Re:

I don’t think such inequality is combatted too well by tariffs on its own. Actually, tariffs on primary production ressources is a big hinderance on the efficiency of secondary production and eventually an unwanted extra expense on society…

To combat the inequality you describe the common answer is a need for further redistribution of ressources by progressive scaling of contributions to the common welfare. That was also what sir Adam Smith proposed in his economic texts. How you achieve that without scaring the big economic transactions to foreign countries, is the modern problem. Unless you have some amazing way of scaling the tariffs, they are not on their own a part of the solution. You basically have to force redistribution mechanisms in the trade partner to achieve a fairer chance of more equal economic distribution. That is a non-starter for several reasons.

Jeremy2020 (profile) says:

Re: Re:

They’d more likely just increase the price consumers pay for goods while eliminating competition from the market place. I also have a hard time imagining such a thing would not be filled with loopholes that a large corporation could take advantage of for themselves while also using it to prevent competition.

Anonymous Coward says:

Re: Re: Re:

See… you have already figured it out.

“I also have a hard time imagining such a thing would not be filled with loopholes that a large corporation could take advantage of for themselves while also using it to prevent competition.”

This is just about how everything works. Creating a pile of shit and then tying the best looking bow you can find on top of it. It sadly works amazingly fucking well too!

Machin Shin (profile) says:

“But when China, for example, can make book publishers in Hong Kong disappear because it disagrees with the content of the books, it can certainly close down the fake Apple stores.”

I must say, sure makes me feel all warm and fuzzy to know people in our government are looking up to China and their ability to make people vanish…..

What the hell has happened to this country? We are supposed to be a shining example of freedom, not some twisted country drooling over the wonderful power of an authoritarian country.

It really sickens me to see what this country has become. Instead of the land of the free and home of the brave we have a bunch of cowering morons trashing all our freedoms. I would much rather live free and risk being killed from a terrorist attack than live under an oppressive government that is promising me a false safety.

Anonymous Coward says:

Re: Re:

This is what we get when we think the police are here to protect us instead of protecting ourselves.
This is what we get when we ask government to tell us what to do, set regulations for how businesses should operate, and what can and cannot be sold because someone thought it was bad for your health.
This is what we get when we keep asking for a king or all power president to do Congresses job without making Congress do it.
This is what we get when we mistakenly believe we are a democracy and think that the popular vote (ie mob rule) should be allowed to carry weight.
This is what we get when the Federal government is allowed to walk all over the Constitution while we do nothing.

Okay giving my keyboard a rest. I will just follow up with this, which says IT ALL in a nutshell.

“Every Nation gets the Government it deserves.”
~Joseph de Maistre

Richard (profile) says:

Re: Re: Re:

Every Nation gets the Government it deserves.

Except that a nation is not a unified moral entity capable of "deserving" anything.

The statement is nonsense – no matter who said it.

In fact the refutation of this idea is the real point behind the story of Sodom.

From Genesis 18

"And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked?

24 Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that are therein?

25 That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right?

26 And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes."

The story then goes on to progressively count down the 50 to smaller and smaller numbers – always with the same result – until Abraham realies which way this is going.

So no – a nation is not capable of "deserving" a government and even if it were then in the real world we note that nations often get governments that have been foisted on them by other nations (quite often the US – as many S. American countries will testify.)

Chile certainly didn’t deserve Pinochet for example – so your quote is rubbish.

orbitalinsertion (profile) says:

Re: Re: Re:2 Re:

It apparently carries the wisdom that both the people and the government suck and neither should have any power, authority, or rights. Those are reserved to a handful of mythical dead wise men and some rules they wrote on a piece of paper, plus mysterious entities that want to make and sell regardless of consequences.

Good plan. So wise.

That One Guy (profile) says:

Re: Re: Re: Re:

The statement is nonsense – no matter who said it.

It gets even better when you do know who said it

Joseph de Maistre, a supporter of the idea of the ‘divine right of kings’, otherwise known as ‘If you get a sadistic dictator ruling over you it’s because God Almighty decided you deserved it, so sit down, shut up, and take your just punishment.’

That One Guy (profile) says:

Re: Re: Re:3 Re:

Seems to depend on the person. I have seem some religious individuals who would(and have) argue that if a god does it(or at least if their god does it, the others being demons or figments of imagination of course), then it’s good by definition, so if they also bought into the divine right of kings then it would follow that anything the king, who was after all chosen by a god, does is also good, and therefore deserved.

It’s all sorts of absurd and wrong in the ‘Might makes right’ sense, but there are people who would believe it.

Anon C. says:

Re: No "almost" about it

Umm… they may be talking about actual theft, not copyright violations.

I couldn’t see the article (anti-ad-blocker), so I’m winging it here.

But there have been problems in the industrial sector that don’t have anything to do with copyright etc. type of IP.

Rather its actual theft of trade secret type of IP. If I’m remembering correctly, there have been visitors/immigrants from Country X who targeted specific US companies for design/data thefts. Sigh, details are now hazy.

If the article doesn’t seem to make sense, it may be because its about a different kind of IP screwup, not one that techdirt readers are familiar with. Just guessing.

As for the Chinese Gov’t disappearing people; I suspect the comment is not admiration but an expression of disbelief. If that Gov’t can/will kill people for anti-Party IP offenses, it is not creditable that they can’t stop some some other non-anti-Party IP offense (from which some local Party hack is probably getting a payoff.)

Don’t let ATHS drag you into the weeds; there is going to be soooo much more that Trump and crew are going to do that’s going to drive you nuts, without red herrings.

Cheers from a red county (in a blue state) :).

orbitalinsertion (profile) says:

Re: Re: No "almost" about it

Still, exfiltrating trade secrets does not remove them from the original holder. Still not theft per se. Unless you literally have something written on one piece of paper in a safe and someone absconds with it, and no person actually knows the secret operationally somehow, you can’t steal the secret. You may steal materials, or copy data, but saying it is the theft of ideas does not make it so.

And that is exactly what these types always bang on about.

You may be right about the disappearing part. Although i think it is equally likely either way, given the history of copyright/IP maximalists. Or both ways.

Richard (profile) says:

Bigger issues?

I realize that there are much bigger issues at hand right now,

Actually those issues aren’t that big- at least they do not represent anything abnormal in the behaviour of the US or other similar governments.

The kind of injustice you highlighted actually happens all the time – Trump’s decree – whilst stupid – I’m not defending it – has not created more that a small spike in the noise spectrum of US immigration injustice.

Of course his opponents have tried to make a big deal of it and have somewhat misrepresented it in order to do so.

However I think this story is actually more important – it should be allowed to be buried under the temporary and phoney kerfuffle about immigration policy.

Anonymous Coward says:

Re: Bigger issues?

You mean the Trump Muslim ban?
Yeah, that unconstitutional crap fest. Trump is such a loser.

Anyone who speaks out about how stupid his Muslim ban is, is obviously his “opponent” and “tries to make a big deal out of it” misrepresenting things in order to make it sound worse than it is ….. have you discussed this with any of those directly affected by the Muslim ban? What did they say to you? I would be interested in the video if you have any. I will refrain from making popcorn, because I doubt you have have spoken to anyone but yourself about this.

What exactly do you think is phony about it?

Thad (user link) says:

Re: Bigger issues?

Why do people keep trying to say that it’s completely normal for a President to order DHS officers to ignore court orders and refuse to meet with senators?

This is not normal. Yes, other Presidents have instituted immigration bans. But it’s never happened on this scale, it’s never been applied to people who were already sitting in airports, it’s never applied to green card holders or other legal residents, and it’s certainly never come with an order to ignore the other two branches of government.

William Null says:

Sometimes it has to be worse before it will get better. This is well-engineered effort to show US people what exactly it means to have no net neutrality and what exactly are dangers of copyright enforcement.

Sometimes it has to get worse before it will get better. Just vote for Justice Democrats next election.

Make America ACTUALLY great again.

Detective-kun says:

Suddenly Hong Kong

Mike. It’s February 1st, 2017 today, and that article’s published like 2 weeks ago. That relationship omission you’ve already discovered, and the fact that old news appeared in your feed as news today, makes this piece suspiciously manipulative. Let’s go look up the author.

https://www.manhattan-institute.org/expert/diana-furchtgott-roth

She did work on Trumps transition team. She’s one of the think tank’s director and a columnist at marketwatch.com writing about economic stuff. *She definitely doesn’t write for Business Insiders*, so let’s look at marketwatch.com and see who she really wrote.

http://www.marketwatch.com/topics/journalists/diana-furchtgott-roth

There is indeed an article about Intellectual Property by that writer, dated in July 2016, which is a discrepancy from the one on Businesses Insider and Fiscal Times, published by January 2017.

http://www.marketwatch.com/story/the-us-doesnt-even-enforce-trade-rules-never-mind-enact-favorable-deals-2016-07-07

https://web.archive.org/web/20160707100040/http://www.marketwatch.com/story/the-us-doesnt-even-enforce-trade-rules-never-mind-enact-favorable-deals-2016-07-07

That woman is indeed a die hard zealot for Intellectual Property in both versions. However, Business Insider and Fiscal Times have reworded the same article from July 2016 and republished it in January 2017 under a completely different headline. The similarities are obvious in paragraphs that references USTR Special 301 Report, with the 2017 version having a massive compression.

**Now please pay attention.**

Diana did not mention Hong Kong and disappearing editors in her 2016 article. The 2017 article did. Who put Hong Kong and disappearing editors in the 2017 article?

The media did. It’s the media that’s looking up to China and its draconian information control, putting their own words into others’ mouths so they push their agenda using reputation and resources of others.

This is essentially the legal definition of libel. She’s getting blamed by things she did not say, and had no responsibility of saying, because of somebody else claiming that she did.

The point is, before you get angry at someone, verify the source of information. Just because there’s a bunch of text next to a portrait or a name doesn’t mean that the person wrote *all* that.

Finally, Mike remains correct on everything else about the original Market Watch article, save for the Hong Kong kicker.

(In case Business Insider decides to pull a disappearing editor)

https://web.archive.org/web/20170113160757/http://www.businessinsider.com/intellectual-property-theft-biggest-crimes-us-economy-2017-1

Adam V says:

Re: Suddenly Hong Kong

However, Business Insider and Fiscal Times have reworded the same article from July 2016 and republished it in January 2017 under a completely different headline.

Or, maybe we give BI the benefit of the doubt, and perhaps instead of assuming that BI read it and decided to reword it themselves, but keep Diana’s by-line and think she wouldn’t notice, we assume that she went to BI and said “I’ve got an article that I think will be of interest to your readers” and BI said “sure, send it along and we’ll run it past our editorial board”, at which point she reworded her own article, supplied it to them, and they published it.

Anonymous Coward says:

Send people to jail if they download a movie. Fine them hundreds of thousands of dollars if they copy software. Restrict how people can listen to their music. Prevent local companies operating because of patents. Let people die if they can’t afford medication.

Other countries don’t ignore US IP, they ignore the laws behind it: Because they’re stupid.

Adam V says:

Disclosure Added

> only to discover that the author, Diana Furchtgott-Roth, was on Trump’s transition team (something that is not disclosed by Business Insider for unknown reasons)

Note that BI has now added this disclosure at the bottom:

> Disclosure: Diana Furchtgott-Roth is a senior fellow at the Manhattan Institute. **In November 2016, she was appointed to Donald Trump’s transition team.**

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