On October 3, 2023, the App Association participated in the United States Patent and Trademark Office’s (USPTO) annual Roundtable on Future Strategies for Anti-counterfeiting and Anti-piracy. At this event, the App Association represented the perspective of our small business software developer community that benefits from cost-effective online mechanisms to protect their intellectual property (IP)-related products.
App Association members have for some time been supported by protections provided by digital software platforms and important technical protection measures (TPMs). Congress passed the Digital Millennium Copyright Act (DMCA) with strong bipartisan support, undergirding the relationship between online platforms and IP rights holders. Online platform protections include a robust review and eviction process for illicit products, cost-effective dispute resolution mechanisms for third-party software developers, and notices of infringing activity for consumers. Like many other industries, software developers deploy TPMs, including digital rights management (DRM) tools, firmware, encryption, obfuscation, and monitoring and analytics to protect their products from online piracy. This system ensures that platforms apply strong protections for third-party businesses and their consumers as opposed to meeting minimum requirements set out by boilerplate regulation.
During the roundtable event, the App Association emphasized its growing concerns with a global trend of harmful antitrust laws and policies, some proposed and some enacted, that are eroding online anti-counterfeiting and anti-piracy mechanisms. For example, the European Union (EU) has passed the Digital Markets Act (DMA), which bans digital platforms (which they call “gatekeepers”) from enforcing rigorous vetting, review, and security measures against illicit activity (i.e., malware, sideloading, copied apps, etc.), reducing consumer trust. The DMA has a significant impact on small and medium-sized businesses (SMBs), like App Association members, that rely on consumer trust to compete with brands recognized on a global level. The U.S. Congress is also considering similar actions in the Open App Markets Act (OAMA) and American Innovation and Choice Online Act (AICOA), which would remove important platform protections against counterfeit and pirate activity.
The App Association discussed how online platform protections are more important than ever to creators and innovators, given new developments in technologies, including the rise of generative artificial intelligence (GAI) platforms. While AI has traditionally been applied as an advanced technical tool requiring significant human intervention, GAI mimics cognition by pulling data from various sources to train on and understand patterns, create rules, and make decisions. While GAI offers further efficiencies to the creation of a work or development of an invention, it also gives rise to concerns around its ability to aid the proliferation of counterfeiting and piracy activity.
Like the relationship between app developers and an app store, the connection between a GAI platform and its users is important. While GAI platforms help software developers develop code more efficiently, the user may not know if the platform is training on their inputs or if the user is incorporating infringing outputs into their work. The App Association noted that some popular GAI platforms, like ChatGPT or GitHub Co-pilot, use closed-source large language models (LLMs) that have been accused of scraping and training on open-source software without adhering to its licensing terms, a violation of copyright and contract law. A GAI platform’s ability to infringe open-source software raises issues about liability for platform users as well as the erosion of the open-source model through widely used open-source licenses such as the GNU General Public License (GPL). The App Association noted that as this relationship grows, we urge for the development of standards of practice for GAI platforms and their users as protective measures against digital counterfeiting and piracy.
In coordination with this event, the App Association developed detailed comments on future strategies in anticounterfeiting and antipiracy that were filed with the USPTO, as well as comments on AI and copyright that were filed with the U.S. Copyright Office. Further, the App Association hosted a hill briefing on November 15, 2023, titled Copyright’s Digital Dilemma: The Benefits and Risks of Generative AI, featuring Anthony Licon of App Association member company Epic-Reach.
If you would like to learn more about our efforts to protect our members from pirates and fraudsters in common and emerging digital spaces or share your experiences, please reach out to [email protected].