Trademark Violation and Greater Evils

Biella Coleman recently mentioned counterfeit drugs in a blog post:

A pirated movie carries little consequence, except for that the movie industry may lose some cash flow. A fake Rolex purchased on the bustling streets of NYC saves you a lot of money (and robs you of a warranty). But counterfeit drugs, the consequences and stakes are at a whole other, more serious, order of things.

Biella’s intentions in drawing the analogy are harmless — people really do lose their lives because of fake drugs while rock-off movies and Rolexes are relatively harmless. However, her aside reminds me of the much less harmless, fair, and honest analogies drawn by Pat Choate in Hot Property who used examples like counterfeit drugs and dishonestly labeled aircraft parts to support a high protectionist position on IP.

Because of the arguments made by people like Choate, I believe that there is a subtle danger in the type of analogy that Biella draws that I think we should try to guard against in the future.

The danger lies in the fact that these comparisons tend to conflate at least two very different kinds of illegal activity. Trademark violations are illegal. So it selling drugs without approval from regulatory bodies. So is manslaughter and murder — both terms used in the Times article Biella links to to describe the actions of drug counterfeiters. Laws in most countries already prohibit all of these things and offer increasingly harsh punishments for each action. In fact, selling unlicensed drugs and killing people is much more illegal than violating trademark and making knockoffs. And it should be.

When someone commit IP violations in the process of committing much worse crimes, we should focus on highlighting, condemning, and punishing the much worse crime, not the IP violation which in comparison is almost inconsequential. The punishment for counterfeiting drugs may only be a slap on the wrist and that’s probably an appropriate punishment for the counterfeiting component of the crime. The other worse crimes that the counterfeiter is also committing should be punished much more harshly.

If, as the Dr. Reggi quoted in the Times article complains, "counterfeiting a medicine can be [only] a misdemeanor," we need stronger laws against selling unregulated drugs — not stronger IP laws. If we confuse and compare bootleg movies and knock-off Rolexes with fake malaria or AIDS drugs, we’re likely to come to the opposite conclusion.

Our reactions to such situations should be, "People are killing people with fake drugs! We need stronger laws against killing people in these ways." They should not be "People are killing people with fake drugs! Interesting to note that they are also violating trademark laws like other counterfeiters." The former reaction will frame the discussion in a way that lets us treat the bad components of the crime more harshly and will not help IP high protectionists argue for stronger IP through a disingenuous process of guilt by association.

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Benjamin Mako Hill

Rebel with rather too many causes. And your host!

9 thoughts on “Trademark Violation and Greater Evils”

  1. Part of the reason these issues might be conflated is because of the propertization/criminalization of copyright. Pre-DMCA, copyright law was primarily civil law and was adjudicated between a plaintiff and a defendant. Since the 90s standards have been set by which violations of entity’s exclusive monopoly is a (criminal) felony. So a fake drug is clearly a violation under civil law of someone’s patent or trademark rights; they can sue you. Wrongful death or harm is a crime against a person, and a criminal law that the state could prosecute. In this sense, now, copyright and fake drugs are kind of similar.

  2. I don’t think I buy it.

    Murder and fraud are not only both crimes, they are both felonies and high crimes! But one is still worse than the other and punished much more severly. If we want to use increased penalties to defer potentially murderers, we needn’t increase the penalties for fraud even if the two do sometimes happen at the same time.

    In any case, the IP violations involved in drugs are not copyright issues at all so the criminalization of copyright doesn’t really matter. Aslo, and it’s a minor point, it was (IIRC) the NET act in 1997, and not the DMCA that first criminalized copyright infringement.

  3. It’s a stupid comparison for another reason: counterfeit drugs that kill you obviously aren’t very good copies! If they were perfect, one-to-one copies (like a ripped CD), then the problem would lie purely in the trademark/IP arena. Since they’re obviously not, containing differences that could be lethal, it’s more in the realm of willful negligence and peddling untested medicines, and IP doesn’t get a look in. And nor should it.

  4. Another problem with the comparison is that “a high protectionist position on IP,” when applied to pharmaceuticals, itself results in death and illness. Trademark infringement results in sugar pills labeled as malaria medicine, and people in the eveloping world die. IP infringement results in affordable versions of patented drugs, and people in the developing world are saved.

  5. BTW: I wasn’t arguing these should be treated similarly, only why they might be conflated in the mind of some: a breakdown between the distinction between criminal and civil law.

  6. Sorry Joseph! I guess I misunderstood what you were trying to say.

    The attempt to criminalize copyright has certainly been part of a larger effort to draw a set of ethical equivalencies between copyright infringment and other crimes. Stealing, of course, is the crime that most frequently comes up and the industry has worked very hard to confuse these otherwise easily distinguishable and ethically different actions.

  7. Wow! Mako’s blog is where the cool kids hang out, apparently.

    Anyways, I can’t think about counterfeit drugs without thinking of DanceSafe ( The organization  provides pill-testing kits (and sometimes in-person pill-testing services) to people at raves and dance events who buy what they think is MDMA and what sometimes turns out to be lethal doses of PCP or cough syrup.

    Is there a point in there? I don’t know. Maybe it’s that the cruel psychopathy of murder at a distance by selling bogus drugs to unsuspecting people is orthogonal to the trademark/patent/IP issue.

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