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The United States finally lost. After winning 58 consecutive games during 10 years with NBA players, Team USA fell to Argentina, a team filled mostly with players who could not play in the NBA. Before exiting the tournament, the team also lost to Yugoslavia and Spain, leaving the U.S. players shocked, disappointed, embarrassed and shamed. For the first time since NBA players started representing the red, white and blue, Team USA failed to earn a medal in international competition. The world basketball championship was not marred by politics as it was in the infamous USA-USSR final in the 1972 Olympics in Munich. It also was not affected by the NBA strike as it was in the 1998 World Championships. Even worse, the tournament was held in Indianapolis, deep in the heart of American basketball country, making the losses that much harder to fathom. True, some of the marquee players in the NBA like Kobe Bryant, Tim Duncan, Kevin Garnett, Allen Iverson, Jason Kidd and Shaquille O’Neal, did not play in the championships. It is also true that the team did not have enough practice, playing only two exhibition games before the tournament. However, the losses tell us more about the shrinking gap between U.S. basketball and the rest of the world’s game than anything else. As Team USA coach George Karl acknowledged, the defeat strangely represents “a celebration of basketball.” The losses teach us about more than basketball. They offer valuable lessons on globalization and the international harmonization process. LESSON ONE: Harmonization is different from Americanization. We sometimes confuse national policy preferences with international norms. The fact that the game of basketball was founded here does not mean that the international community will necessarily follow American rules. Sure, FIBA, the international governing body of basketball, has adopted features of the NBA game, such as alley-oops, the quarter system and the 24-second clock. Yet there are limits to the NBA’s ability to export its rules. In the past decade the NBA has made repeated attempts to amend its rules to accelerate offense, encourage ball movements and increase its appeal to fans. However, some of the rule changes might not be suitable for international competition, for it does not have as many slashers and dunkers as the NBA does. Moreover, harmonization is a two-way street. While the NBA is actively exporting its concepts and style of play abroad, it also has imported some features of the international game, such as zone defense, which until now was one of the major differences between the NBA and the international game. Like rules in a basketball game, intellectual property laws vary from country to country, a reflection of differences in wealth, economic structure, technological capability, political systems and cultural tradition. Although the TRIPs agreement successfully induces countries, in particular less developed countries, to model their IP laws in the American image, the United States also has implemented changes that harmonize its IP laws with those of the international community. These examples include: copyright and patent term extension, adoption of the “intent to use” concept in trademark law, early publication of patent applications, and protection against circumvention of copy-protection technologies. Had there not been serious constitutional problems, database protection might have become another area in which the United States harmonized its laws with those abroad. LESSON TWO: International judges behave differently. We often take for granted our interpretation of rules, ignoring others’ tradition and cultural beliefs, until a foreign judge applies a wholly distinct interpretation. We shared the same shock that the U.S. basketball players experienced when they were confused by the international referees and the style of international play. What they had expected to be a call had become a non-call, and what they had expected to be legal had become a foul. Like referees, foreign judges, in particular those trained in civil law countries, tend to interpret laws differently. While companies are able to secure more preferable forums through contractual arrangement or by mounting choice-of-law arguments, governments do not have this luxury. The TRIPs agreement requires that governments resolve IP conflicts through the dispute resolution process of the World Trade Organization. As a result, the United States is sometimes subject to adverse rulings that are in tension with its constitutional principles and legal traditions. Even worse, U.S. businesses sometimes have to struggle in countries that lack a sophisticated legal system or that has limited respect for the rule of law. LESSON THREE: Our success in exporting ideas and concepts puts us in a catch-22 position. So far, the United States has been very successful in exporting ideas and concepts. Ironically, its success has come back to haunt the country for the exports have leveled the playing field and enhanced the competitiveness of the importing countries. With commitment and dedication, the importing countries might even be able to improve these ideas and establish them as international standards. This is the case with basketball. Today’s NBA has many fine players from overseas: Vlade Divac and Peja Stojakovic from Yugoslavia, Pau Gasol from Spain, Andrei Kirilenko from Russia, Steve Nash from Canada, Dirk Nowitzki from Germany, Tony Parker from France and Hedo Turkoglu from Turkey. These players are not just backups but proven starters. Three of them have played in the annual NBA All-Star game, and most recently Yao Ming, the 7-foot-5 Chinese center, was selected first in the NBA draft. Similar developments have been made on intellectual property protection in less developed countries. In the past, many of these countries were skeptical of intellectual property and considered it a tool of the developed world. Today, however, most leaders realize the benefits of intellectual property protection, in particular its positive impact on foreign investments, tax revenues, creation of jobs, and transfer of technology. If these countries continue to improve their intellectual property regimes, they might eventually be able to catch up and compete with the developed world. LESSON FOUR: We need to have a global vision and to understand the opposition. In the past, the United States could easily gather some of its best players and put on an all-star show en route to the basketball throne. This is not the case today. U.S. players no longer can use their sheer strength and athleticism to beat their opponents. To improve the team’s understanding of their opponents, some commentators noted the need to institute a scouting system and a full-time national coach. They also have noted the need to increase awareness of international games. As the world becomes increasingly interdependent, we no longer can afford to ignore foreign countries by using a “go it alone” policy. Consider international trade. During the post-war period, some less developed countries took a radical approach by isolating themselves from the international trading system, which they argued was biased toward industrialized countries. China went to the extreme by launching the Great Leap Forward, withdrawing completely from the global economy. By the late 1980s, however, virtually all of these countries have abandoned their ill-advised strategies. In sum, international harmonization is a game with different rules, different officials, and players with different visions and mindsets. What Team USA found out in the recent world basketball championship our businesses don’t want to discover. If the United States’ recent losses can help us understand globalization and enable us to succeed in the international community, perhaps they are not as bad as they sound. Peter K. Yu is acting assistant professor of law at Benjamin N. Cardozo School of Law, Yeshiva University. His book “Intellectual Property Lawmaking and the Global Economy” is forthcoming from Kluwer Law International.

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