Counterfeiting and Bootlegging Are Not the Same Thing.

Indiana Democratic Sen. Evan Bayh's commentary on the Anti-Counterfeiting Trade Agreement being negotiated internationally and in secret is, as EFF's Richard Esguerra points out, so completely misguided that you might think he was being disingenuous -- if not for the fact that there were probably dozens of other senators, on both sides of the aisle, earnestly nodding their heads alongside him. It's a strange quirk of Washington that it is socially and politically acceptable for otherwise intelligent politicians to admit to an ignorance of technology's nuances that I'm not sure you could necessarily get away with in, say, health care. Or defense.

What Bayh does is to conflate the counterfeiting of concrete consumer products with the use and abuse of digital "intellectual property." Here's Bayh:

In the face of expanding commerce, we cannot lose sight of our fundamental responsibility - protecting Americans from imports that pose significant health and safety risks. Intellectual property theft and counterfeiting represents an emerging threat to the health and safety of American consumers.

Every time someone in American politics like Bayh lumps in fake Coach handbags with songs shared on BitTorrent, a little bell rings in RIAA headquarters and everyone who works there gets a bonus. Bing!

The big movie studios and big music labels in the U.S. have strategized for years to have their political interests treated as one part of a bigger package of interests that the public is more sympathetic toward. They've been hugely successful. You really can't compare something like a knockoff purse with a bootlegged version of Astro Boy that gets passed around on peer-to-peer networks. The economics are different. The impact on the core business and motivation of the creator is different. How they are different is a conversation that Congress has really never wanted to have. So we're left with lazy commentary like Bayh's that serve to prop up a model of digital information distribution that really deserves to be questioned.

--Nancy Scola

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