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- Title
A CASE AGAINST THE ACTA.
- Authors
Port, Kenneth L.
- Abstract
The Anti-Counterfeiting Trade Agreement (ACTA) is being considered by the Obama Administration as an executive order. If signed, this order will greatly enhance controls placed at the borders of thirty-seven countries to attempt to stop the international flow of so-called counterfeit goods. To remove the social, political, and emotional stigma, I adopt the value-neutral term imitative commodity to describe what some call counterfeits, knockoffs, or pirated goods, among others. This Article uses just three manufacturers of luxury status goods to consider whether the ACTA will have optimal or negative consequences. It concludes that the data supporting the need for the ACTA is overstated and unverified; that the ACTA is actually not responsive to the precise problem that it purports to correct; that the ACTA merely acts as policy laundering, getting the Obama Administration something it fears it could not get through the public-law forum; and that the ACTA consists of vague and misdirected border measures and criminal provisions. The ACTA is raised in the context of international terrorism supporting or maintaining the imitative-commodity industry. However, just like the value of the imitative-commodity industry, the value of the actual support the imitative-commodity industry receives from terrorists and the benefit derived by terrorists is grossly overstated. In fact, there are many positive elements to imitative commodities. Some claim it is actually socially optimal to have some imitative commodities. Imitative commodities operate as free advertising for the legitimate good maker. Imitative commodities improve the goodwill of a legitimate good- maker. The sheer existence of imitative commodities allows legitimate high-end makers to sustain otherwise unsustainable prices for their luxury status goods. In the end, we have vilified imitative-commodities makers without giving thorough and analytical thought to the economic, social, or legal advantages made possible by some imitative commodities. This Article is about quantity, not quality. The ACTA operates as a sledge hammer to kill an ant. It works to make public the intellectual property rights of some manufacturers that used to be private. As such, the ACTA also operates as a corporate bailout. What is required instead is a nuanced solution to a nuanced problem.
- Subjects
OBAMA, Barack, 1961-; PRODUCT counterfeiting; FORUMS law; INTELLECTUAL property; PRIMARY commodities; EXECUTIVE power; LEGAL claims
- Publication
Cardozo Law Review, 2012, Vol 33, Issue 3, p1131
- ISSN
0270-5192
- Publication type
Article