Lucas Logan Texas A&M University SUMMMARY: The IPR GPR: The Emergence of a Global Prohibition Regime to Regulate Intellectual Property Infringement

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1 1 Lucas Logan Texas A&M University SUMMMARY: The IPR GPR: The Emergence of a Global Prohibition Regime to Regulate Intellectual Property Infringement This research is guided by the following question: What features of prohibited activities make the application of greater restrictions on freedom tolerable? I define prohibitions and their restrictions by using terms from Nadelmann (1990) and Andreas and Nadelmann s work on global prohibition regimes [GPRs]. The authors argue that the nature of prohibited activities and the type of enforcement that restricts prohibited norms and activities is a phenomenon based on political economic, social and communicative properties (Andreas & Nadelmann, 2006). At the political economic level of the GPR, where power relations are determined, the strongest states are the actors that set the guidelines for which norms and activities are to be prohibited, and these actors export economic and legal models that support their standards for prohibition. At the social level, norms are developed through historical patterns of action and societal interpretations of morals and deviance (Nadelmann, 1990, p. 480). At the communicative level, the laws and social patterns that govern prohibitions are often based on the discourse surrounding the prohibited activity. Andreas and Nadelmann (2006) view the efficacy of prohibition regimes as a matter of degree. Sometimes, a prohibited activity will be extremely marginalized by enforcement regimes (slavery; high seas piracy). In other instances, the activity cannot be entirely wiped out through legal measures (drug trafficking; prostitution). In some cases, the costs of waging an endless prohibition regime are better than the alternatives; in other cases, most notably the drug trade, the global prohibition regime [GPR] is a political economic and social disaster (Andreas & Nadelmann). The goal of this dissertation will be to pinpoint, from a political economic perspective, when the costs of the prohibition regime equal the benefits; when is it undesirable to buckle down on prohibitions, and under what conditions should governing bodies consider alternatives? The political economic perspective that guides my critique is sourced from authors including Fuchs (2011), Mosco (2006), Schiller (1992), and Schiller (2009). These author s perspectives of social power relations that constitute the

2 2 production, distribution and consumption of information resources, and whose research is largely informed by the mid-20 th to early 21 st century reality of the international spread of information and communication technologies, are a fitting complement to Andreas and Nadelmann s (2006) theoretical approach to the evolution of GPRs. Essentially, in the post-war era, the United States used its political economic and military might to craft a GPR system bourn from international governing bodies and cross-national legal cooperation as well as exportable technocratic expertise, tools and legal instruments (Andreas & Nadelmann, 2006, p. 194). The U.S.-style system of the GPR coincided with the U.S. push for globalization and liberalization that political economic analyses describe as creating a power imbalance involving North-South relations (Schiller, 1992), civil society and the corporate sector, and the ownership of information (Fuchs, 2011). The modern GPR model is used to enforce prohibitions across states and information economies, from drug sales to money laundering (Andreas and Nadelmann, 2006). For this study, the GPR that I critique is one that Andreas and Nadelmann identify as emerging: that of intellectual property rights [IPR]. In consideration of the scope of the research, the case studies selected for this dissertation involve online infringements of intellectual property rights, particularly those of copyrights. I refer to the GPR over intellectual property as the IPR GPR. The debate over the policies and enforcement that govern IPR online are related to the rapid growth of information and communication technologies (Cohen, 2012, p. 3). This paper contributes to the debate over, as Cohen (2012, p. 3) the content of information policy, technological design, information market structure and ethics of information use by providing a critical political economic analysis of the policies and enforcements that drive IPR in networked societies. I identify the most powerful actors in this struggle and address modes of resistance by civil society groups and citizens. I will also pinpoint the political economic attributes and consequences of the IPR GPR in terms of the costs versus benefits of the enforcement model to society. For instance, do policy makers and enforcement regimes favor one set of social actors over another when punishing intellectual property crimes, and is the GPR model an appropriate process for balancing information rights in

3 3 society? This paper analyzes the political economic issues underlying the IPR GPR, and provides insights to the function of GPRs as models of enforcement. The case studies featured include that of IPR law online in Spain. In 2007, Roja Directa, a Spanish web site that specializes in the online streaming of broadcasts of sports matches, was taken to court for alleged copyright infringement (McSherry 2011). Spanish courts found that, since the web site only acted as a directory for users to stream broadcasts and did not stream any of the broadcasts itself, Roja Directa was not in violation of the national copyright law (McSherry). In 2011, however, nineteen of Roja Directa s Internet domain names, including and were seized by the U.S. government for copyright infringement Puerto 80 Projects, S.L.U. v. United States of America, Department of Homeland Security and Immigration and Customs [Puerto 80 v. U.S.] 2011). Additionally, the U.S. government was found to be working closely in secret with the Spanish government to adopt new copyright laws so that sites like Roja Directa would be criminalized in Spain. In the eyes of the many Spanish citizens that took to the streets of Madrid and protested their government s hidden dealings with the U.S., the real infringement was not that of Internet users over copyright, but of the U.S. over Spanish sovereignty (Slattery, 2011). The second case involves the file sharing web-site The Pirate Bay. Pressure on Sweden to adopt EU copyright directives forced a series of property seizures and lengthy court cases involving the site and its founder. Yet despite the arrests of the founders and the tremendous pressures put on the site to shut down, it remains online and receives consistent support from civil society organizations and political parties including Pirate Party. The Pirate Bay is evidence that resistance to international enforcement regimes in networked communication environment is powerful and complex, and complicates the policing of IPR. The findings in this paper support the idea that the process of creating and enforcing information policy inspires a democratic deficit by empowering the government, corporations and law enforcement agencies at the expense of other members of civil society. State sovereignty is violated by international regimes that ignore

4 4 borders and national laws in order to enforce the policies of other states. In effect, the IPR GPR becomes impractical on multiple levels: It fails to reign in the intellectual property infringement, fails to effectively govern norms, and fails to foster democratic communicative norms. In regard to the cost-benefit analysis of the IPR GPR, the evidence suggests that the benefits, from a political economic perspective, outweigh the costs. Alternatives to the IPR GPR that involve cooperation between international governmental organizations, individual states, multinationals and civil society that do not rely on more complex approaches to intellectual property policy than legal regimes.

5 5 References Andreas, P. & Nadelmann, E. (2006). Policing the Globe. New York: Oxford University Press. Cohen, J. (2012). Configuring the Networked Self: Law Code, and the Play of Everyday Practice. New Haven, MA: Yale University Press Fuchs, C. (2011). Foundations of Critical Media and Information Studies. New York, NY: Routledge. Mosco, V. (2009). The Political Economy of Communication (Vol. 2). Thousand Oaks, CA: Sage Publications. McSherry, C. (2011, August 4). Court refuses to return seized domain name, claims shutting down speech doesn't cause a substantial hardship. Electronic Frontier Foundation. Retrieved from Puerto 80 Projects, S.L.U. v. United States of America, Department of Homeland Security and Immigration and Customs [Puerto 80 v. U.S], 11 Civ (PAC), Document 15 (2011). Schiller, D. (1999). Digital Capitalism. Cambridge, MA: The MIT Press. Schiller, H. (1992). Mass Communications and American Empire. (2 nd Ed.) Boulder, CO: Westview Press. Slattery, L. (2011, May 27). Planet business. The Irish Times, p. 6.