Robin Hood versus the bullies: software piracy and developing countries.

Since most software companies are in the business of creating software and not creating mechanisms of international intellectual property enforcement, they have combined resources to protect their interests. (176) For example, the major intellectual property industries in the United States align to lobby the government to enforce their interests under the umbrella of the IIPA. (177) The IIPA collects information about intellectual property piracy overseas and reports it to the USTR. (178) Members include other alliances of industry specific groups such as: the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers' Association (NMPA), and the Recording Industry Association of America (RIAA). (179)

One of these groups, the Business Software Alliance (BSA), is a major coalition of software companies (180) such as Microsoft, Sun Microsystems, Hewlett Packard and many more intellectual property holders. (181) In order to protect its members' interest, the BSA sets up offices in foreign countries (there are over eighty BSA offices worldwide) with piracy-reporting hotlines and a team of attorneys to investigate and prosecute software infringement cases under domestic law. (182) These teams have many functions. They coordinate raids with local police, investigate and prosecute crimes, (183) set up training for local enforcement officials, and, finally, set up public awareness campaigns about software piracy. (184) The offices typically advertise a grace period date before starting prosecution, and many times they offer discounted rates for users who turn in their pirated copies of software. (185) Nonetheless, the BSA gathers the data in each country and files a Special 301 report with the USTR and also the IIPA, which then accumulates data for its own Special 301 report to the USTR. (186) Based on this information, the USTR determines what status to give each country. (187)

Yet the BSA and the IIPA are only two actors of hundreds in the international software protection enforcement regime. (188) As Peter Drahos emphasized during a symposium on international piracy, the private enforcement regime is "nodular" with overlapping membership. (189) For example, in addition to being a member of the IIPA, the BSA is a part of the Industry Functional Advisory Committee on Intellectual Property Rights for Trade Policy Matters (IFAC-3), which advises both the Congress and the President on the effectiveness of certain trade agreements on intellectual property. (190) Furthermore, the software enforcement regime described thus far does not even include the BSA's "competitors" in the field of international software protections, such as the Software and Information Industry Association (SIIA) or the Entertainment and Leisure Software Publishers Association (ELSPA). (191) Additionally, this does not include the many individual software companies that have their own anti-piracy departments. (192)

Concerned with the ongoing pressure placed on developing countries and intellectual property, one scholar laments:

With these three levels of pressure--WTO, IIPA, and IFPI (193)--the

schismogenetic dominant-submissive relationship between developed

and developing nations is further enforced. As the industrial world

presses the rest to conform to its standards, the question arises:

with the vast diversity of races, cultures, beliefs, ideals,

philosophies, societies, and economies in the world, is it feasible

to expect every nation to conform to the same IP standards and

methods of enforcement as espoused by the United States, the

European Union, and Japan? (194)

Obviously aware of this issue, the BSA includes support for small businesses in purchasing authentic, licensed software. (195) So, arguably, the BSA is actually helping these industries by giving them legal validity, which leads to increased investment; it also gets the businesses set up with more effective software that presumably works better and includes warranties and support networks. (196) Furthermore, the BSA provides expensive training to police that is especially welcomed by the low-budget operations in developing countries. (197)

More alarming are the tensions that could potentially rise between these private actors and the public sector. For example, the BSA's objectives are obviously in line with TRIPS. The BSA clearly reports to the USTR, WIPO, and the IIPA and complies with the domestic laws of each country when it sets up an international branch. (198) However, if there were a private actor campaigning in a manner that caused an effect inconsistent with the goals of any of these organizations, who has the authority to stop it?

To date, there is no international law controlling the actions of private actors. (199) The International Court of Justice (ICJ) is only able to settle legal disputes for international persons, which, by legal definition, are states. (200) Likewise, the WTO arbitration system is for members only, which again, means states only. (201) However, as these private actors continue to grow and impact the economic viability of nation-states around the world, some form of adjudication process, whereby a country can request sanctions against these private actors, must be developed.

IV. CONCLUSION: ROBIN HOOD VERSUS THE BULLIES: WHO WILL WIN?

The future of software piracy is dependent on a number of factors. As Raymond Nimmer and Patricia Krauthaus explain, technologically advanced countries follow a "natural progression" in normalizing software protection within their legal system. (202) The early period usually involves case law, where lawyers and judges alike are uncertain about how to handle software within the purview of existing law. (203) In due course, they will typically extend current law to encompass software protection. (204) Eventually, the legislative body promulgates law to reflect the judicial determinations from earlier cases. (205) In this scenario, the legal system is already functional, and software is merely a new product that has become useful for citizens and lucrative for creators. (206)

For many developing countries however, the legislation for software is present before countries realize the usefulness or profitability of the product. (207) This creates the clash between advanced countries who want software protection and developing countries who hardly know what it is. (208) Because developing countries have not had time to evolve their intellectual property systems naturally, they have felt bullied into accepting other countries' awkward values. (209) And because they feel bullied, developing countries resort to Robin Hood schemes. (210) Feeling victimized by the alien rules forced upon them, developing countries feel justified in "stealing" software from their "oppressors." (211)

Eventually, however, this will change. As countries begin to develop their own software industries, they will see the benefit of enforcing software protection. (212) However, many of these countries--especially those in Africa--are absurdly far from developing any profitable industry, let alone a profitable software industry. (213) A software industry requires a solid infrastructure (electricity, computers, networks, etc.), which in turn requires an educated labor force. (214) In addition to all these things, the country must already value intellectual property as a sellable commodity in order for a software industry to emerge. (215) Because software is such an advanced form of trade it is likely to be one of the last things protected by emerging market countries. (216)

Nonetheless, the international community and those who have advanced far enough to create software will fight vehemently to protect their own future value. (217) Because the natural interest for software protection does not yet exist in some developing countries, however, these owners will try to develop an artificial interest for developing countries. (218) Most often, this artificial interest comes in the form of threats (such as trade sanctions), or temptations (such as funding). (219) Whether or not these measures will speed up the natural evolution of software protection remains to be seen, but it is not all bad. By ensuring a future for their own businesses, the "bullies" will also leave open the option for a future emerging market software industry: an industry that even Robin Hood would find feeds the poor better than he could.

([dagger]) This note was a winning paper in the 2007 Annual Nathan Burkan Memorial Competition, sponsored by the American Society of Composers, Authors, and Publishers.

(1.) See THOMAS OATLEY, INTERNATIONAL POLITICAL ECONOMY: INTERESTS AND INSTITUTIONS 1N THE GLOBAL ECONOMY 17 (2d ed. 2005).

(2.) See, e.g., INFO. AND MEDIA RELATIONS DIV., WORLD TRADE ORG., UNDERSTANDING THE WTO 59 (3d ed. 2005), http://www.wto.org/english/ thewto_e/whatis_e/tif_e/understanding_text_e.pdf (on file with the Rutgers Computer and Technology Law Journal) [hereinafter UNDERSTANDING THE WTO].

(3.) Trans-National Corporations, Multi-National Corporations, Non-Governmental Organizations, and Inter-Governmental Organizations, respectively. For definitions, see generally OATLEY, supra note 1.

(4.) See, e.g., Press Release, U.S. Dep't of Justice Criminal Div., Federal Law Enforcement Targets International Piracy Syndicates (Dec. 11, 2001), http://www.cybercrime.gov/warezoperations.htm (on file with the Rutgers Computer and Technology Law Journal).