IP Skeptic Doctorow Notices a Problem

Last week, Cory Doctorow reported on Boing Boing that Amazon has a growing counterfeit products problem on its hands due to a change in company policy that allows Chinese suppliers to sell direct on the platform, bypassing domestic importers. If accurate, the issue itself is not very surprising. What is surprising is that Doctorow does not acknowledge—at least not in this article—that the counterfeit outbreak he describes is an inevitable result of the anti-IP agenda he has personally supported for years.

At some point, one must toss that copy of The Declaration of the Independence of Cyberspace into the digital dumpster and accept that the internet is not a magical cornucopia whose bounty will flow only so long as it operates beyond the legal limits of the physical world. To the contrary, the virtual increasingly has significant influence on the tangible. Doctorow describes the following:

“In late 2015, there were a spate of warnings about knockoff sex toys on Amazon made from toxic materials that you really didn’t want to stick inside your body. Now this has metastasized into every Amazon category. Sometimes its clothes and other goods that have weird sizing, colors, or poor construction. Sometimes its goods that generate no complaints, but are priced so low that the legit manufacturers can’t compete, and end up pulling out of Amazon or going bust.

Or it can be the worst of both worlds: super-cheap goods that make it impossible for legit manufacturers to compete, coupled with low-quality knockoffs that generate strings of one-star reviews from pissed off customers, meaning that even if the fakes were chased off the service, the sales will never come back.”

Sound familiar? Doctorow observes that Amazon is making money on transactions that may defraud—or even endanger—consumers while simultaneously causing permanent economic harm to legitimate suppliers. Isn’t that what many of us have been saying would happen when IP rights are not enforced online—that the “free culture” fiesta would extend beyond the supposed “harmlessness” of media piracy and eventually manifest as physical goods that can maim, poison, or kill people? Or at least just rip them off?

Unfortunately, the broader battle over IP protection on internet platforms has been distorted by a naive belief in the harmlessness of pirating entertainment media and the assumption that IP only serves the big conglomerates who produce those works. This feeds a sense that IP in general is just a “protectionist” regime for entrenched corporations to slow innovation. When it comes to physical goods, though, suddenly people begin to notice that protecting IP happens to protect consumers. This is why for instance trademark infringement is not a minor transgression. The knock-off Polo shirt won’t get anyone killed, but the knock-off Graco car seat certainly could; and when one distribution service like Amazon is vying to be the “Everything Store,” the possibility for widespread hazard becomes clear.

Presumably, Amazon will recognize the potential loss of consumer confidence if their counterfeit problem grows. The company could take mitigating measures akin to the effective, anti-fraud practices employed by eBay, which weighed heavily in its favor in a 2002 litigation with Tiffany over fraudulent products being sold on that platform. That Doctorow writes the following, however, is the real hypocrisy that needs to be addressed:

“Amazon is bending over backwards to refund customers who get bad fakes, but either can’t or won’t stem the tide of fakes themselves (I run into counterfeit editions of my books on Amazon all the time). It may be that it’s more profitable to offer refunds to customers who get bad products than it is to police the millions of SKUs that are pouring in now that Chinese industry has a direct pipeline to Amazon’s customers.”

Doctorow is criticizing Amazon for tackling the counterfeit problem one infringement at a time while failing to take broader measures to “police” its own platform to “stem the tide.” Is that not a familiar refrain copyright holders have been singing about mass infringement of their works on platforms like YouTube? I think it is. Either these platforms are under the control of their owners or they’re not. Either we want a digital market that protects suppliers and consumers, or we don’t. And we can’t have the former without shedding this naive premise that the technology itself obviates the need for intellectual property enforcement, or that IP is exclusively a barrier to access, information, or innovative services.

This subject actually refers back to the first article I wrote about any of these issues—one that appeared in December 2011 in Stars & Stripes supporting SOPA/PIPA because of their associated provisions designed to mitigate counterfeit products entering the military supply chain. You remember SOPA, right? Certainly, the cadre of “digital rights” activists won’t let you forget it as they chronically insist that all proposals to protect any kind of IP online are basically SOPA in disguise. (See Guide to Critiquing Copyright in the Digital Age).

Likely, nobody remembers that Tittle II of SOPA contained anti-counterfeiting provisions as did a companion bill to PIPA called the Combatting Military Counterfeits Act, authored by Sheldon Whitehouse (D-RI). These provisions and proposed amendments would not be protecting US consumers from Amazon-purchased counterfeits more than the existing statutes (Title 18) already do, but the bills did go further to protect against certain types of counterfeiting, and both bills expanded the principle that trafficking in counterfeits online poses a serious threat to consumer safety.

As Doctorow’s observations forecast, someone’s eventually going to get hurt. And unfortunately, that’s often what it takes for people to demand any kind of action. Or we could change the conversation before that happens.

© 2016, David Newhoff. All rights reserved.

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  • I’ve said here before that almost everything nowadays is produced from digital files. It doesn’t matter whether it is a music video, one of Doctorow’s books (he always whines when some one pirates HIS stuff), shoes, kids toys, the braking system on your car, or something for Cory to stuff up his arse. All of it is digital, and given the digital files any one with a compatible means of manufacturing can create almost identical products. I say almost identical, because whilst the two products may be superficially similar build quality is not, nor are the materials of manufacture. So the stitching on your shoes may come away within a week, and your brakes may well be made from cheaper or substandard metal and shatter after a few 100 miles of use.

    • “he always whines when some one pirates HIS stuff”

      Is this true? Do you have a link? I thought he was firmly on the “pirate my book! it only helps me!” fantasy.

  • I think you’ll find that trademark infringement is a separate conversation because it involves the element of fraud, first and foremost. And I am more than certain that it can happen on the internet, for the same reasons it would happen anywhere else: a high-street retailer has far more credibility than a back-street, long-coated, moustache-twirling huckster selling you questionable watches. And everyone knows even the police on the streets can only do so much to stop it.

    One kind of these counterfeit goods, as you are no doubt aware, are pirated DVDs of low and/or offensive quality or even not the requested movie at all. So you would expect consumers scammed in this way to be treated as the victims here. But is that so in this day in age? Of course not. Suspect and tut-tutting is the first response. I can still remember when I was a kid watching Disney movies on VHS. There would be an anti-piracy warning before 101 Dalmations: showing a pirated clip compared to a genuine clip to help the consumer spot the difference. And the tone was nothing short of sympathy, not hostility. Even a hotline to call and report in about dodgy dealers of VHS tapes, everything you could have to side with the consumer in the face of fraudulence. Compare that to today’s equivalence of drug-PSA’s “this is your brain on piracy, YOU are the dickhead” etc and the tone is entirely different even to the point where it can make you feel guilty for borrowing a book and reading without paying… or at least try to. Despite all the viruses and destruction you can get on a PC if a kid none-the-wiser innocently goes to a site just like his friends had done and can’t understand what he’s done wrong, you’d expect SOME sympathy. Rather, the parents are more likely to be scolded. Just like those who get HIV from shared needles as a result of futile criminalisation, they are given a wagging finger in the name of protection and health. (Got to love how the parallels with the self-harm demonisation that is the “war on drugs” keeps coming up here, eh?) In fact I’m willing to bet the meaning of the word “warning” from the expression “anti-piracy warning” has taken a completely different connotation from what it did back then as a result of this change in tone.

    Even though there is a point to be made that the huckster working at Forever 21 is the situation Amazon is in and should be stopped, those calls for change will only have any force behind them because noone likes to be defrauded through trademark infringment. But when it comes to copyright infringment, the guy who goes to the Pirate Bay knows very well what he’s doing, so all the nonsense about intellectual scarcity, which is only incidental to the willingness not to be defrauded by the way and not the main engine behind what makes it work (“I was lied to, which I don’t approve of because think of the IP!”), is a false comparison. The former has a chance to be enforced while the latter would be dismissed by both fiat currency and gold standard supporters alike as being too abundant to ever work if it were for two seconds talked about in that context. People would protest if they received fake dollars via a scam, but no so much if they intended to get their hands on fake dollars from the start for a more nefarious purpose. That’s why we have dollars in notes and coins only, not JPEGs and every other conceivable legal tender medium.

  • “so all the nonsense about intellectual scarcity”

    For kids there is no scarcity because everything is new to them. So in the early 60s parents would tell kids that the current hit tune came from some opera. In the 70s and 80s we could point back to the 60s and 70s for the antecedents of some groups sound. Nowadays it is almost all retro, even the guitar fuzz boxes are being made to emulate the ‘classic’ sound of those made in the late 60s and early 70s.

    The UK music chart has stagnated mostly due to streaming. Everyone is playing the same tune time after time. Singles that hit the charts months ago are still in the top 40, or whatever it is called these days.

    In the first six months of 2016, there were 86 new entries in the UK singles chart. Ten years ago, that figure was 230.

    For the rest I find it odd that people only care that their access to some knock off product may be of low quality, not that it is actual a knock off. This has consequences particularly in consumer products. Because knock offs appear on the market almost with days of the official product (and sometimes before) there is a built in advertising push towards obsolescence. Its not that those trainers you bought are worn out, its that a new style has been produced, and why are there new styles coming out every few weeks? Well the manufacturers need to keep ahead of the knock offs. Its a vicious circle which results in more pollution, more stuff in landfills, and more greenhouse gasses.

  • I’ve ended up with counterfeit goods from Amazon twice to my knowledge. In both cases, the fulfillment was direct from China.

    The first was a jeweler’s welding torch (Smith LittleTorch). The price was a little over half the other prices listed. It was a good job. The outer box was glossy and identical to the pictures of the box I’d seen on line, the foam packaging was the same shape, and the torch was generally similar… But, the foam used was a very soft, coarse foam, the normally green oxygen knob was blue, and the knurling down the body of the torch was a different length. Also, on the two smallest tip sizes, the genuine article has laser drilled sapphire orifices, the knockoff has a poorly drilled hole. It seems to work ok.

    There are several similar torches still up on the site, such as as a “Smith New Top Gas Torch Welding Soldering Little Torch Soldering With 5 Weld Tips” with a Chinglish description. Not claiming to be a “Smith LittleTorch” anymore, but there are several low cost torches with the Smith pictures.

    The second was Paw Patrol stuffed toys, Again, it was a fairly competent knockoff, but when compared to the genuine article, the stitching was significantly coarser and the label materials were a bit thinner. Other than those clues (and a long, direct from China ship), it was identical to the other stuffed toys in the series.

    Amazon could put quite a dent in this if they made it clear that this was direct ship from China/Thailand/etc. without having to go to the product comparison page.

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