Leveraging Copyright: Russia and Microsoft

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This week, the New York Times reported that Russian authorities were searching the offices and seizing the computers of public interest non-governmental organizations (NGOs) disfavored by the government, under the guise of enforcing Microsoft copyrights. Microsoft itself seemed to have some role in this enforcement practice as well, with its lawyers in these cases apparently pressing for criminal charges and refusing to pass on to authorities evidence that the software was legitimately purchased.

One of the first things Microsoft said in its defense was that it was required to obey Russian laws when it operates there—certainly true of any company operating overseas. But the unique situation here is that, since the charges against the organizations stem from ostensible infringements of Microsoft’s copyrights, Microsoft holds the ultimate key to preventing these particular abuses of the law.

Like any copyright holder, Microsoft has the power to grant permissions to copy and use its software to anyone—the only restrictions are those of its particular business interests. Preventing a given NGO from being wrongfully accused of violating a Microsoft license is as simple as granting permission for that NGO to use whatever Microsoft software it might have on premises. And, to its credit, that's apparently one of the things that Microsoft is going to be doing now.

Of course, this is far from a complete solution to what's a confluence of several deep problems here. One is the evident willingness of Russian authorities to target NGOs for their legitimate political activities—an issue much larger than can be discussed fully here.

But another facet of this situation that is more related to copyright and IP issues is how copyright can lend itself to being abused by enforcement authorities in just this way.

Copyright is particularly susceptible to this because of its ubiquitous presence. Note how, in the New York Times story, the general assumption that Russia is rife with infringing software means that people give a the authorities, or a plaintiff, the benefit of the doubt when they claim, without evidence, that a defendant has unlawful copies of software. Inflated accounts of the scope of the problem lend credence and cover to those who would abuse enforcement efforts.

That should give us reason to make claims of damages responsibly, and points out that the interests of the US, as far as international relations goes, can't just be focused on one narrow segment of US industries. Yet so much of our international efforts on intellectual property focus so prominently on stricter, stronger, harsher enforcement as a key goal. As we can see all too clearly now, copyright enforcement policies that may benefit software producers in the US can also have extraordinary negative effects on other aspects of foreign policy, such as free speech.

But copyright is ubiquitous in a sense far more fundamental than just the estimated number of infringing works out there. Copyright, particularly on digital platforms like computers, mobile devices, and online services, is implicated every second, because digital devices by their nature copy the information that flows through them. Buffering, cache copies, RAM copies, and others are all made at multiple points of a work's interaction with a device. And copyrighted works are everywhere, since any sufficiently original work fixed in a tangible medium (and electronic media certainly counts) can claim copyright protection. And if it's digital, it will be copied, intentionally or not, by anyone who encounters it on their own device.

This gives someone with the authority to take legal action against an alleged infringer a great deal of power. If so many people can be plausibly accused of infringement, whatever the eventual merits of the case, the enforcer (whether the owner of the copyright or the government agency with enforcement authority) can leverage that enforcement power to harass, intimidate, or delay targets of his choosing. When everybody can be colorably accused, only some will be. And those some can easily be those singled out for discrimination by the enforcers. It's why we see bogus DMCA takedown notices issued for people trying to silence criticism or stifle competition. It's why copyright law is involved in the current controversy about the Russian administration now.

So to the extent that copyright provides such a ready pretext for the exercise of power, its enforcement is not merely a question of copyright policy per se. It also means that enforcement carries a moral dimension. In seeking balance in copyright enforcement, we're not just trying to find an optimal level between protecting authors' rights and allowing technological innovation and creative mashups. We're also concerned with how enforcement can actively harm fundamental human rights as well. This isn't a problem limited to copyright, but it should demonstrate that when we push for other countries to enforce their powers in areas that can be as fuzzy and discretionary as digital copyright, we should know also just how those powers can be abused.

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