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.