Robin Hood versus the Bullies: Software Piracy and Developing Countries

I. INTRODUCTION The discussion of globalization, a term laden with confusion, has filled volumes of political science, economics, and sociology journals. However, the effect of globalization on the legal community has yet to be fully explored. With the birth of the General Agreements on Tariffs and Trade (GATT) after World War II and the subsequent creation of the World Trade Organization (WTO) in the early 1990's, the entire arena of international trade changed shape. (1) Issues formerly considered the sovereign business of nation-states to enforce are suddenly fair game for global adjudication. (2) The rise of private actors, usually described with a multitude of acronyms such as TNC's, MNC's, NGO's, or IGO's (and variations thereof), suddenly have a role to play in international legal enforcement. (3) Furthermore, the rise of the Internet has increased the ease with which intellectual property can be pirated overseas. (4) Countries such as Thailand, China, and even Canada are under fire from the Office of the United States Trade Representative (USTR) for piracy of United States intellectual property. (5) In order to protect their interests, many multinational corporations have teamed up to fight for their right to profit from their intellectual property. (6) This is significant because without any initiation from nation-states or world governments, private actors have become, in essence, a world police for hire. (7) The implications of this practice are worrisome: if too many infant businesses are penalized for their illegal use of intellectual property, the economies of developing countries can be negatively impacted. (8) The purpose of this note is to explore the complex web of international enforcement mechanisms for intellectual property in developing countries, especially in the area of software piracy. In order to discuss this, however, it is important distinguish between the de jure intellectual property regime (the law in the books) and de .facto regime (the law that is actually enforced). Put simply, many developing nations have domestic laws protecting software, but they do not enforce those laws as much as others. (9) Why would a country fail to enforce all of its own laws? As this note will explore, many reasons exist. However, as the tension rises between those who desire intellectual property enforcement and those who do not, a line between developed and developing countries emerges. (10) Software creators, who tend to come from highly-developed economies, want to charge a fee for their product, yet users in developing countries do not want to pay for software (and in some cases cannot pay), especially when the money goes to the already software creators. (11) From here we have a clash: a conflict between the Robin Hood mentality of developing countries--who want to steal from the rich to help their own poor--and the Bullies--players in the developed countries who want tougher international enforcement for their hard-earned software creations. (12) In classic economics, this is called the logic of collective action, wherein free riders-individuals who rely on others to bear the costs of a program from which [they benefit]--have no incentive to pay for something they can get for free. (13) In the case of software piracy, software users who find these products available for free or discounted rates will most often select that cheaper option. (14) According to the logic of collective action, the only way software creators can prevent widespread infringement is to create regulations declaring such behavior illegal and then bully the infringers into compliance. (15) This explains why many of the intellectual property laws in developing countries did not originate domestically, but were required by the international community. (16) Until developing countries start to see tangible benefits from enforcing anti-piracy laws, it is unlikely that they will take intellectual property laws for software seriously. …

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