Hot Property by Pat Choate

In the last two months, I’m managed to pick up three review copies of books on IP at the Strand. Review copies are basically available for any books that you might see reviewed in places like the New York Book Review and are always published by big mass-market (i.e., non-academic) publishing houses. The first two that I got to were Kembrew McLeod’s Freedom of Expression and David Bollier’s Brand Name Bullies. Both were alright. I like Bollier’s much more and would recommend strongly although it was not a whole lot of new information for me.

Having heard that Knopf had put out a more entertainment and publishing industry friendly book, I descended into Strand’s basement and picked up a review copy of Pat Choate’s Hot Property: The Stealing of Information In an Age of Globalization. Choate is a economist and D.C. think-tanker who is probably most well known for writing a handful of books with Ross Perot and running as his V.P. in 1996.

The book’s description of the German patent strategy before, during, and after the second world war and how that model is being applied by other countries today was both well written and illuminating as were other parts of the book. One chapter pulled heavily from Drahos and Braithwaite’s Information Feudalism which I am convinced is the best and most underappreciated book on IP written in years.

Like Perot, Choate’s position is not as simple as high-protectionist or low-protectionist — right or left. On the one hand, he cries out about how IP piracy, especially on an international scale, is threatening our ways of life and our lives themselves in some cases. He claims that strong IP protection and iron-fist enforcement is the only way out. On the other hand, he is very critical about the role of large corporations in manipulating IP to screw over the little guys.

Basically, he seems to have listened to everything that the industry says about IP promoting art and science, Romantic conceptions of authorship, stories of the self-made inventor working through the patent system and, while critical of the way that corporates are abusing this system, Choate completely buys into the underlying arguments that the industry has create and employs to prop up their behavior. In this sense, I think Choate is well intentioned but a bit naive.

If naivete was Hot Property’s greatest sin, it might be excusable. It’s not. Particularly in the introduction, the way that Choate argues for stronger IP enforcement (although notably, not really for strong IP protection) is through scaremongering that, while justified in some cases, degenerates into tactics that are unnecessary and in some cases dishonest.

In one section, Choate talks about baby formula and about how counterfeit baby formula is putting our children at risk. He lists quite a few stories. The most egregious of these involved counterfeiters taking normal or substandard dairy-based formula and putting labels on it for a more expensive brand of dairy-free powder. The effect of this formula on lactose intolerant infants could be sickness or worse. Choate implies that we risk paying the price for trademark infringement with our children’s lives.

While Choate is correct that the relabeling of this formula is an act of counterfeiting and trademark infringement, there’s also a lot of other things wrong and criminal with it. Cleary, the actions of these counterfeiters constitutes fraud. It probably also boils down to criminal neglect, reckless endangerment, and potentially to attempted or actual homicide. We do not need trademark law to prosecute these sorts of crimes except it to add it the end of a long list of other, more egregious, charges. If punishment for trademark infringement is the best or only way to punish people who lie to make a buck and end up killing our children, our legal system has bigger problems than weak IP protection. While the presentation of the baby food issue is misguided, I do not think that it is necessarily dishonest.

However, Choate crossed that line with the way he conflated trademark infringement with other types of business fraud to basically use scaremongering to drive his point home. Choate points out that one frequent cause of plane crashes is "bogus parts." One would imagine that he would have examples of trademark violations at the root of these parts but these examples are nowhere to be found. Instead, he lists a handful of examples of companies who misrepresent the quality or age of their own parts. Choate describes how companies have sold cable to airlines that they knew were substandard or hoses that companies knew would deteriorate under high pressure.

These companies cannot infringing on their own trademark and they are not infringing on anyone else’s. They are acting fraudulently and and are putting people’s lives in danger in the process. This is already criminal and it has absolutely nothing to do with IP. Choate ends his sections on airplanes with this:

Now imagine this. You are on an airplane six or seven miles up in the sky with your seat reclined, happily reading a book or watching a movie, when the pilot comes on the loudspeaker and announces:

You attention please. We are experiencing some flight difficulties because (a) one of the cables needed to the fly the plane has snapped; (b) an essential [fuel, oil, hydraulic] hose has ruptured; or (c) a key structural part has just broken in two. Our flight crew will help you prepare for an emergency landing. Please stay calm.

Then, an emergency oxygen mask drops from the ceiling and you just hope that yours is not one of those contaminated hoses sold by Air-Pro. At such a moment, pirating, counterfeiting and bogus goods take on an entirely new importance.

None of the example he alluded in that passage had anything to do with pirated or counterfeit goods and the bogus goods had nothing to do with IP violations of any sort. In the context of a call for IP enforcement and protection, this is sneaky, dishonest, and wrong.

Choate may have some good points. However, packaged and presented as disengeniously as they are here, it was hard for me to get past the first chapter..