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Confusing Export Controls with Piracy |
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The New York Times's (reg. req.) normally quite good John Schwartz writes a confused and misleading piece on national defense sensitive software slipping passed export controls (Black Market for Software Is Sidestepping Export Controls). The issue is an important one, but the article errs in trying too hard to hook the piracy of Britney Spears' CDs to the illicit export of national defense sensitive software to countries such China, Iraq and North Korea:
Intellectual property "isn't just Napster," and it "isn't just copying Madonna's songs," one Justice Department official said, adding, "It's the software that allows you to model the fuel flow in a fighter jet."
Hello, Mr. Justice Department official, this isn't about intellectual property. We would be concerned if this type of software was being distributed in Libya whether or not it was copyrighted. However, by tying the issue of violation of export controls to Napster-type filesharing, the Justice Department is setting the groundwork for cracking down on these systems as instances of support for terrorism. It won't be long, I expect, before Jack Valenti is making this argument.
But when companies want to take action against a breach of the export controls, they often find themselves frustrated - whether because the United States government is reluctant to crack down on emerging trade allies like China or because software piracy over the Internet is almost impossible to stop, even when there are attempts to do so.
Hey, Mr. Justice Department official, why are the companies the ones trying to do something about violation of export controls? Shouldn't the government be a little concerned? Apparently not:
Ms. Mara [President and CEO of Intelligent Light] said that she had made the rounds in the Commerce, Justice, State Departments and the Small Business Administration. For her troubles, she said, she got many sighs and apologies from officials who seemed averse to addressing the delicate politics and economics of United States-China relations.
Of course, once the software is being offered for sale on a piracy site in China, it's a bit late to do anything about it. You could ask the Chinese government to crackdown on the pirates, and maybe they might, but that wouldn't keep the software out of the hands of the Chinese government, which is the purpose of the export controls in the first place. This would lead a rational person to the conclusion that we needed to address the problem somewhere else, but rationality is in short supply in the United States attorney's office in Newark:
Scott S. Christie, an assistant United States attorney in Newark, said that Ms. Mara was presenting a bedeviling problem: trying to enforce United States copyright and export rules in other countries. "We scratched our heads and gave a lot of thought as to exactly what we could do, given the realities," he said.
And that's where it stands, he said. "We're still trying to resolve in our minds what the best approach is going to be," he added. "Unfortunately, it's an issue of sovereignty and diplomacy, which is sort of outside of my realm and what I do."
We can't enforce US copyright and export rules in other countries, particularly the ones export controls are supposed to target. No wonder they're scratching their heads. Let's face it, once the software is available on the Internet, you can, at best, minimize piracy, but there is no way you are going to stop determined parties with government resources from obtaining the software.
For export controls to be effective you are going to have to make it more difficult for this software to get on the Internet in the first place. Given that this software is used by a relatively small number of companies, this is a reasonable thing to do. How about watermarking the software? If it shows up on the Internet you can figure out where it came from and punish the individuals and companies that permitted the violation of export controls. I could list half a dozen more possible solutions, but I'll leave some of the work to the head scratchers in Newark.
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