Legal Piracy: Antigua's Desperate, Fearless Ultimatum
"We have made it clear to people by this point in time that what we'd be doing is absolutely sanctioned by an international body that the Americans participate in, and that they approve of," said Mark Mendel, an attorney who has been representing Antigua for the past decade. "So, you know, there is really no place for rhetoric. If they don't like it, that's unfortunate."
08/17/13 5:00 AM PT
About six years ago, the World Trade Organization sided with the itty-bitty Caribbean island of Antigua on its claim that the United States' ban on overseas remote gaming violated international trade agreements. Following years of failed negotiations between the U.S. and Antigua, the WTO upheld its ruling last winter, confirming once and for all that -- as compensation for the erosion of Antigua's online gambling sector -- the island could suspend its obligations to certain U.S. intellectual property rights.
The U.S. has stood pat on its ban, so Antigua announced this summer that it is forming a committee to implement the country's suspension of U.S. copyrights.
What exactly that means is anyone's guess: an iTunes-esque platform that sends sales straight to the Antiguan government, free copies of Microsoft Office being passed out in the streets, a state-sponsored Pirate Bay -- who knows? After all, there is no precedent for this, and Antigua has been decidedly mum about what it has up its sleeve.
To see what exactly is going on with this situation and how it might play out, we are pleased to welcome Mark Mendel, an attorney who has been representing Antigua for the past decade and a member of the select committee that will help with the government’s plans to suspend U.S. copyright. In this podcast, Mendel talks about the effectiveness (or lack thereof) of the WTO's ruling as a bargaining chip, and what Antigua could do if the U.S. doesn't change its stance.
Listen to the podcast (21:51 minutes).
Here are some excerpts from the podcast:
TechNewsWorld: You and I talked at the end of January, right after the WTO upheld its previous ruling that Antigua could go ahead and suspend certain obligations to U.S. copyright. At the time, I remember you saying that the WTO decision to uphold its previous ruling didn't necessarily mean that Antigua would engage in what U.S. officials were calling "state-sponsored piracy," but that it was perhaps instead a way for Antigua to have leverage in the situation and to be able to say, "OK, now the WTO has officially ruled with us. We have the upper hand."
Has the decision half a year ago morphed into something other than a bargaining chip?
Mendel: Well, under the actual WTO rules, it is designed to really be like a bargaining chip. It's designed to allow a country like ourselves to bring pressure to bear on the country that is not complying with the decision. So no matter whether you threaten it or whether you actually put it in place, it still performs that function.
Now, after I talked to you last, an Antiguan delegation went to Washington, D.C., and met with a bunch of people in Congress, a bunch of staff members both in the Senate and the House. We talked to the U.S.T.R. [United States Trade Representative]; we also talked to the International Intellectual Property Association about our case and where we stood. Also since then, our prime minister was seated next to vice president Joe Biden at a meeting -- down in Trinidad, I think it was -- in which they discussed the case directly.
We were hoping to see some movement from the U.S. authorities on coming to a meaningful negotiated settlement; that really has yet to happen. So we are now moving into the phase where this committee has been formed, and the committee will have responsibility for designing, implementing and supervising the actual suspension of the IP rights.
TechNewsWorld: You mentioned the International Intellectual Property Alliance, and I remember there was a spokesperson from that group who had one of the much-discussed quotes from January, when the WTO upheld its ruling. He said, "state-sanctioned theft is an affront to any society."
It really seemed like the U.S. and organizations that were siding with the U.S. were up in arms about this decision. Has there been any shift in philosophy on their parts? Has there been a change in the way they’ve approached this? Or has it kind of been the same rhetoric, the same stance that they had before?
Mendel: Well, I do think after we met with them and after we met with some other people -- and then of course there was a pretty good discussion of the issue in the international and the American press -- the rhetoric has been relaxed somewhat. The fact of the matter is, this is a remedy that was written into the WTO agreement. The U.S. government not only approved all of that, but they were kind of the sponsors of most of the WTO agreements, and indeed this IP remedy. Maybe they didn’t realize it was going to be used against them; I don't know.
Yet the fact of the matter is, we have made it clear to people by this point in time that what we'd be doing is absolutely sanctioned by an international body that the Americans participate in, and that they approve of. So, you know, there is really no place for rhetoric. If they don't like it, that’s unfortunate, but I think if they don't like it, it may actually have the desired effect, and that is to get their government to comply, to settle this dispute.
TechNewsWorld: It's totally fair that you would prefer not to disclose what the plans are or how far along the plans are [to generate revenue from the suspension of U.S. IP rights]. I'm curious, though, if you could expand a bit on what exactly the WTO ruling means you could do.
The phrasing that gets tossed around is that the intellectual property rights have been suspended. So does that mean, for example, that Antigua could sell products that are copyrighted by U.S. companies? Does it mean that there could be a dissemination of goods that should theoretically be copyrighted by the U.S.? What exactly is in your purview -- what are some things you could do?
Mendel: Well, there are many things that are within the realm of possibility. I mean, part of the uniqueness of all this is that nobody has ever done it before, you know. It's very interesting -- since we got the first authorization back in 2007, if you look for it, there are scholarly articles talking about what we could do, what we can't do. There are people who are very pessimistic and take a very limited view on what we possibly could do. There are others who are very expansive, saying we could do whatever we want. So, there is virtually no guidance.
So, what we're going to have to do -- and we'll be the first to do it, because I'm certain we'll be careful about it -- is we’ll set the benchmark for these remedies in the future. We are going to do something that will realize money to Antigua, and it will involve the suspension of Antigua's obligations to the U.S. with respect to intellectual property rights.
There are all kinds of possibilities, but this committee will sit down and look at all those possibilities and ensure that they're more than possibilities -- they're practicalities.
The reason that I let other people speculate is that I feel if we say what we're going to do, or what we want to do or something like that, then the debate will shift from the Americans complying with an adverse decision to, "Well, Antigua is going to do something that is bad and improper." We're not going to do something that's bad and improper, but I don’t want to spend the next six months debating that in public.