Harriet Miers and the Market Stalls of Manila


October 8, 2005


Browse in Intellectual Property

The hounds are sniffing for a paper trail on Harriet Miers, the President’s nominee to the Supreme Court. Yet a matter of great significance is out in the open, in her official biography, and most opponents don’t seem to notice. Ms. Miers was a corporate attorney in Dallas. Her clients included Microsoft and Disney, and her specialties included what is called “intellectual property.” This deserves a look.

Microsoft and Disney have been leaders – if that’s the word – in pushing the boundaries of the copyright laws far beyond what the Founders intended. They have helped to criminalize the ordinary act of sharing with a friend; and they have set in motion what seems destined to become a property police state. In the process they have helped to stymie the very engines of creativity that the copyright (and also patent ) laws were intended to advance.

Harriet Miers apparently has been a soldier in this effort. She has said or done nothing to renounce it, so we can expect her to soldier on if she gets to the Supreme Court. This has implications for everything from the ridiculous extensions of the terms of copyright (from the Constitution’s “limited times” and the Founders’ twelve years to the current lifetime plus seventy) to the efforts to patent life. But today I want to talk about the implications for the Third World.

This question is on my mind because one of my wife’s sisters lives outside of Manila, the Philippines, with her husband and their four kids. Recently three of the kids had to go to the hospital with asthma, and if you ever have been to Manila this will be no surprise. The air is rancid. My eyes burn when I am there. Combine the hellish traffic with the brutal heat and burning trash, and it’s a wonder that every kid there doesn’t have breathing problems.

The Philippines are in some ways a large scale Bushville. The pollution laws either are weak or unenforced. There is little by way of social safety net – no social security and little medical insurance. To get these you generally have to be lucky enough to have a job with the government or a large corporation, and usually these require connections. Cronyism flourishes in Bushville because people don’t get into the game any other way.

The result of polluter-friendly government and the lack of medical insurance can be financial disaster for ordinary Filipinos. My in-laws report that a single dose of antibiotics costs between six hundred and a thousand Philippine pesos. That’s a single dose. A good middle class salary is maybe 30,000- 40,000 pesos per month, which is about $600-$800 U.S. Most Filipinos make much less. My wife’s father, who is a rice farmer, makes less than $1,000 for the whole year. You do the math.

When big medical bills come, people resort to the informal safety net, which is the extended family. In the Philippines these are extraordinary; the best friend of a third cousin can qualify. These days the networks encompass the globe. If you have a relative working abroad – in Saudi Arabia, or Hong Kong, or best of all the U.S. – then word goes out and back comes foreign currency that is magic against the anemic peso. Remittances from expatriate workers are what keeps the whole economy afloat, to the extent it is afloat, which many Filipinos would dispute.

If you don’t have family members abroad then you scrape, or else go into debt. Familial sharing is not the worst thing. But in practice it means that ordinary people are constantly reshuffling their poverty, passing it from one family hat to the next, while the country’s big shots lard their own pots. Instead of getting ahead people get stuck in place. As farms get subdivided and migration from the countryside continues, the source of much of the family safety net – the land – starts to disappear.

If President Bush were of a reflective mind, he might ponder some of the lessons here. The Philippines are a country that we Americans tried to reinvent in our own image, out of a diverse and polyglot populace. This followed the efforts of another colonial power, Spain. The experience might bear some relevance to the President’s current undertaking in the Middle East. Bush might ponder as well the ways the U.S. has engaged with the Philippines in recent decades. Basically we supported the Marcos kleptocracy, because Marcos was cooperative on military matters, and was expert at playing to U.S. foreign policy obsessions, which at the time centered upon the fear of Communist takeover of Southeast Asia.

But my main concern here is intellectual property. As in many Asian countries – China most notably – the niceties of U.S. copyright and patent law are not always honored in the Philippines. Within a short walk of my in-laws’ home near Manila, I could buy copies of Microsoft software, recorded music and movies, for considerably less than the official price. (A music CD is about 700 pesos in the big stores, but about 90 pesos on the street.) I didn’t ask, but I suspect these disks were not of kosher origins, legally speaking.

This is not a matter of hooded men lurking in alleys with duffle bags. It’s in the open, in the warren of little stalls that adjoin the local supermarket. My brother-in-law chuckles at how he sees U.S. movies before I do – or would, if I went to first runs.

Yes, it is against the law. But it is a cottage industry that is everywhere and that enables thousands of people to eke out a living in a land where there aren’t always many alternatives. Schoolteachers leave the Philippines because they can make more money working as maids in Hong Kong. Often they leave husbands and kids behind. College grads can be lucky to get a job at a call center, or at McDonalds, or its local competitor, JollyBees. Besides, how many disks do the big companies think they are going to sell at their regular prices?

(And if we are going to talk about theft, let’s talk about the brave Filipinos who fought beside MacArthur’s troops in WWII and were promised GI benefits for their efforts. It’s more than half a century later and they still haven’t received any.)

It is instructive to ask where you can’t get the knock-off disks. It’s downtown, and in the chain stores in the mammoth indoor malls that are going up in cities around the country. These malls often are financed by foreign money. They are outposts of the global economy; and they lay bare one of the true functions of the intellectual property laws today. It is to suck more of Third World commerce into this global economy, and away from the street economy and small-scale entrepreneurialism that are the daily sustenance for many. Much as Disney ripped off vernacular culture to create Cinderella, Pinoccio and the rest, so it now wants to deplete the vernacular economy on a global scale.

The U.S. has been badgering the Philippine government to get tougher. The Office of U.S. Trade Representative has put the nation on its “priority watch list”, along with thirteen others including China, India, Russia and Israel. A report from the U.S. Embassy in Manila complained that “US copyright and trademark industries (ie corporations such as those Harriet Miers represented)…report continued difficulty protecting their rights through the Philippine legal system due to low conviction rates and imposition of non-deterrent sentences.”

Apparently they want the Philippines government to conduct sweeps of the market stalls and toss more poor entrepreneurs into jail to teach them a lesson.

Could we have a little reality here? This is a country too poor to provide basic human services. Kids get asthma, trash piles up, new roads literally lead to nowhere. A prominent feature of Manila is the sprawling squatter colonies, one of which is separated from my in-laws’ middle income barrio only by a narrow ravine. (When President Bush visited the city in 2003, signs were erected along the main road to hide these squatter colonies from American cameras. I was told people were paid to come and cheer.)

This country, which has major security problems on top of all its social needs, is supposed to devote substantial resources not to cleaning up the air, not to providing care for asthmatic kids, not to helping mothers stay with their families instead of going abroad to work, but rather to stopping the sale of illegal Barry Manilow CDs. No offense to Barry (who appeals to the nation’s syrupy pop taste), but is he really hurting that badly? Disney had $30.7 billion in sales last year. New chief Robert Iger’s compensation is in eight figures. Michael Eisner, whom he replaces, sometimes went to nine figures.

That’s not enough? To boost those numbers we are going to stomp out the market stalls of Manila? That’s the statement of what we stand for that we want to send to the Third World?

The ironies here are many, and cruel. For one thing, the same intellectual property grab that is behind this crackdown is making crucial medicines too expensive for people in the Third World to buy. It also is frustrating research on new vaccines, such as one for malaria, because researchers increasingly encounter patent minefields at every turn. The Golden Goose is strangling itself.

Then too, in their relaxed attitude towards intellectual property laws, the Philippines and other Asian countries are doing exactly what the U.S. itself did in the 19th century. We wanted the Philippines to model itself on the US and you know what? That’s what it is doing. More on this soon.

The Meirs nomination could provide a rare opportunity to debate these issues. The intellectual property grab in the US is the source of the problem, and the Supreme Court has been the enabler. The President says Miers will interpret the law as it is written and as the framers intended, for example. The Constitution says copyrights will exist only for “limited times.” To the framers that meant twelve years. By what stretch of the imagination can Congress extend that to over a hundred years and still claim to be within the Constitutional language and intent?

That’s just one of many questions that could be raised. I have a feeling that instead we are going to get an interminable cat and mouse game on gay marriage and Roe v. Wade. One of the sure signs of political losers is that they are rote, predictable and dull. To Democrats I say, if the shoe fits wear it.