Re: [fsf-community-team] Question

[Simon Bridge]

On Sat, 2009-12-12 at 21:53 -0800, Edward Cherlin wrote:
> On Sat, Dec 12, 2009 at 16:57, Simon Bridge <address@hidden> wrote:
> > On Wed, 2009-12-09 at 16:56 +0800, Peter Rock wrote:
> >> A question - Regarding the ACTA issue, do we see any problems with
> >> applying the term "counterfeit" applied to unauthorized copies of
> >> software?
> >
> > Pretty much - "counterfeit" is usually applied to currency but has also
> > applied to art, and consumer goods, such as the Mona Lisa or designer
> > brands. Neither of these would be covered by, say, copyright. (Some sort
> > of source identifier is normally used, covered in trademark law in the
> > case of consumer goods.)
> 
> Trade dress (legal term), including trademarks, packaging, and serial
> number tags, can be and is counterfeited.

But would the perpetrator be charged under counterfeiting legislation or
under trademark law? IIRC: the first is usually criminal?

In Australia and NZ, Customs only stop counterfeit goods at the border
and refer the matter to the trademark holder.

What we are seeing in NZ is a move by publishers to try to make
difficult or expensive to prosecute cases criminal - like downloading
copyright material off the internet. Generally shifting the burden as in
the three strikes rule.

>  Most of my experience with
> this concept relates to ink jet cartridges, which are also violations
> of numerous patents and other manufacturer or vendor restrictions.
> When I was involved in that business as an analyst, we heard that the
> Chinese army had a whole factory for counterfeiting hologram tags for
> software, CDs, and so on.

We keep hearing this sort of thing - but the hard evidence shows that
the fake hologram tags etc tend to come from the factory which has been
hired to produce the authorised run. The factory manager orders a
deliberate overrun and sells off the excess privately. This is much
easier and cheaper than dedicating a factory to making reproductions.

> Software that is bit-identical is not in
> itself counterfeit, since it works correctly (apart from questions of
> dongles, registrations, and the like), but if in violation of
> copyright or copyleft, is unauthorized and illegal. Trademark
> protection gives additional legal tools for enforcing license
> restrictions for good or ill.
> 
> > It is tempting to apply the same reasoning by analogy to other works of
> > art like movies or books. To object we'd need to be able to claim that
> > treating unauthorised copies as counterfeit is not legitimate.
> 
> A counterfeit book or movie would be one that copies all of the
> publisher's information and trade dress, including trademark logos,
> attempting to pass itself off as the genuine article from the original
> publisher or a legitimate licensee.

A publisher attempts to add trade dress to digital copies.

But we are talking about ACTA here - do we know that these approaches
are being set up in the treaty as a definition of counterfeit?


> >
> > I imagine that MSs position is that users are at risk of action from MS:
> > lawsuits, inablilty to get security patches etc,
> 
> and therefore at risk from malware.

Exactly so.
MS *could* choose to release security patches to unauthorized copies,
which would improve security for everyone.