We've discussed, repeatedly, the incredible lack of transparency from the USTR regarding the TPP negotiations. Back in June, we noted that 130 Congressional Representatives all got together to send USTR Ron Kirk a letter, noting their concerns. At the end of August, Kirk replied (pdf) with his standard talking points. He insists that meeting with people is "transparency," even if they can't see the document. He insists that Congress has access to the TPP, even though the USTR locks out key staffers, and doesn't let the elected officials take notes or make copies. He insists that the document needs to be classified because it's the way things have always been done (which is generally a sign of someone not having much of a real argument).

Either way, Rep. Zoe Lofgren is unimpressed. She's now sent Kirk a letter, responding to Kirk's request for "suggestions" on how to improve transparency with some rather simple and straightforward ideas (pdf and embedded below), meaning that it's unlikely the USTR will pay much attention to them. You can read the full version at that link, but here's my summarized version, with commentary:

1. USTR should make the US positions (not those of other countries) open to the public. She doesn't even say the full text needs to be open, but merely summaries of the US's position. It's hard to see any reasonable argument against this. Since the USTR is negotiating on behalf of the American public (in theory, though the reality often seems so different), it seems ridiculous that the USTR would ever not put out at least summaries of its positions on what it's negotiating. Contrary to Kirk's claims, this does not weaken the US's negotiating ability at all. Quite the opposite, it strengthens it by making it subject to public scrutiny and input, while also highlighting to the world our resolve in coming up with a proposal that the public will accept.
2. Any IP section within TPP must have strong support for flexible "limitations and exceptions" for things like fair use and the public domain. While the USTR has shown a willingness to include some text on limitations and exceptions, the most recent leak raises questions since it appears to be rather inflexible and goes much further than is reasonable.
3. USTR should create more representative "trade advisory committees," which it consults on these issues. As it stands, the ITACs (International Trade Advisory Committee) is heavily, heavily biased in favor of older legacy industries, rather than innovators or the public. Lofgren reasonably suggests that a lot more thought and effort should go into fixing how unbalanced these committees are, since they have tremendous influence over the text.

These three basic changes won't fix all the problems -- not by a long shot -- but they would, at the very least, provide a bit more transparency and involvement, while also guaranteeing that we don't push a solely maximalist agenda in other countries. And, because of that, I fully expect the USTR to ignore all of these suggestions.

Jamie Love has provided the testimony he gave at a USTR hearing concerning Mexico and Canada's entrance into the TPP (Trans Pacific Partnership) agreement. As you hopefully recall, the agreement is being negotiated in secret... unless you happen to be a high level lobbyist. Then you get widespread access, which Love calls out:

The contempt for the public is all the more clear when USTR carries out an extensive system of briefing corporate interests on the nature of the proposals it makes in the negotiations, and openly embraces a double standard for access that can best be understood by the public when looking at the amount of money that various parties dump into political campaigns, in part to obtain this type of preferred access. According to USTR, the Advisory board for intellectual property rights is chaired by Richard Kjeldgaard, the Deputy Vice President, International Intellectual Property, PhRMA. That pretty much sums up how this process is perceived. The fact that the Obama Administration cares more about PhRMA than the public as regards access to information is a great disappointment.

But the really insane part about all of this was that it was asking for hearings from people who don't know what's in the text, because they can't see the text because the USTR refuses to release the text. That resulted in some awkward exchanges:

In Eric Schwartz of IIPA's testimony, he claims that the 3-step test applies to all exceptions, including those like the quotation or news of the day exceptions, which are mandatory. When State asks him a question about the TPP text, Scwartz says he has only seen the leaked text. Exchange illustrates the ackward nature of asking for comments on a secret text.

But, much more ridiculous is that the USTR took the farce, and then bizarrely claimed that this hearing, in which people who can't see the text were asked to talk about it, shows how transparent they're being about this process:

“USTR is committed to transparency in trade negotiations,” said Ambassador Kirk. “Today’s hearing is a good example of our engagement with interested stakeholders and members of the public. As the TPP negotiations progress, we will continue to ensure that all interested parties have an opportunity to express their views.”

How many times does it need to be said? That's not transparency. Inviting a bunch of people who can't see the text to comment on what might be in the text might be considered some weird form of "hearing from the public" but transparency is not about hearing from the public -- it's about showing the public what you're doing. It's about information flowing in the other direction which appears to be something that Ron Kirk and the USTR do not understand. At what point will a reporter interviewing Kirk, or perhaps an elected official, ask the basic question of how keeping something secret is transparent? Or ask him if he can explain the difference between hearing from people and being transparent. Because they're very, very different. And it seems immensely troubling that a massive trade agreement that will have far reaching implications is being negotiated in complete secrecy (unless you're a big industry player, of course) by someone who doesn't even understand what transparency means.

The folks over at the EFF have a decent summary of the travesty that was the "stakeholder" events at the latest TPP negotiating round, in which various groups (on all sides) were supposedly given an "opportunity" to express their thoughts on the TPP. We've already discussed some other aspects of it, but the one thing that the EFF writeup makes clear, is that the whole thing is a complete joke. The text, of course, remains "secret," and negotiators flat out refuse to discuss any points raised about the various leaked texts:

The stakeholder engagement events in the morning were followed by a stakeholder briefing in the afternoon. The briefing allowed registered individuals from civil society and the public to ask questions of and make comments to eight out of the nine negotiators who represent a TPP country. The press was barred from the room. Roughly 25 people rose from the audience to ask questions to the trade delegates during the 90-minute briefing period. As predicted, they were not transparent about the talks, revealed little new information, and delegates also refused to make any comments based on leaked version of texts—the only text EFF and other public interest organizations have had access to. It is difficult for public stakeholders to ask accurate questions or receive any substantive answers when the content of the agreement continues to be shrouded in secrecy.

Rossini asked the USTR about its claims that the TPP’s intellectual property chapter will provide for fair use in its IP chapter, and how those public statements starkly contrast with the recent leaked TPP chapter that shows that the US delegation is in fact pushing for provisions that will restrict non-US countries from enacting fair use. Further, they neglected to comment on the fact that the leaked test has the potential to limit US fair use to the three-step test restrictions. In response, the lead negotiator for the USTR dodged the question and stated that they would not comment on issues raised by text EFF has “purportedly” received. The representative did acknowledge that fair use would be discussed during the week's meetings.

This is not "transparency," no matter how many times the USTR claims that they have "unprecedented" levels of transparency around the TPP negotiations. If negotiators won't share what they're even negotiating, and won't respond to any questions related to the actual text that's leaked, the only thing you can discuss are vague generalities not found in the leaked documents. That's insane. And because of that, the negotiators are focused on ridiculous ideas. For example, the EFF writeup notes that negotiators were asked how they could justify negotiating expansive copyright laws in secret after seeing what happened with SOPA and ACTA... and the response revealed just how out of touch the negotiators are. They don't even realize that the DMCA is controversial:

The last question of the briefing came from EFF’s International Intellectual Property Coordinator, Maira Sutton, who raised from the crowd and asked the lead negotiator how they justify pushing for ever more restrictive copyright laws in the agreement even though it has become clear, with the defeat of ACTA in Europe, that users are sick and tired of international agreements regulating their Internet through overprotective intellectual property provisions... In response, the lead negotiator for the US stated that the standard for copyright regulation in international agreements has been the US Digital Millennium Copyright Act (DMCA). They claimed that the DMCA was legislated fairly and is an effective model for copyright enforcement in the US. The representatives' answer contradicted the fact that EFF and others have been arguing for years that the DMCA is fraught with problems. Sutton responded that based upon what we saw in the recent leaked text on fair use, developing countries would not be able to implement such copyright laws as soundly given that the three-step test language restricts signatory nations from determining and establishing fair use as they see fit.

So, the end result is that we have a completely secret back-room process, where the USTR pretends to listen to the public, but won't talk to them about what's in the actual negotiations, and refuses to comment on the little we actually know is in the document thanks to leaks. And because of that, we have completely clueless negotiators pushing something they think is sensible, totally ignorant of the reality.

This could be solved pretty easily: make the US positions and negotiating documents public and allow public comment on them. The USTR still hasn't given a reason why this can't be done. Though, the answer seems kind of obvious: actually being transparent would mean having to listen to the public and various experts point out where they're completely clueless. If USTR negotiators are so insecure in their positions, they shouldn't be in that job.

The Daily Dot's Kevin Collier has a detailed article about his experience as a journalist at the latest TPP negotiating round. He talks mainly about the various "stakeholder" presentations, which are the only access concerned groups have to the negotiators. As we've already noted, the USTR made sure to limit access to the stakeholder presentations, giving them 8 to 10 minutes (reduced from a promised 15) and then scheduling a bunch to run concurrently -- and during a time when many negotiators would likely be out to lunch. From Collier's report, we also learn that the rooms where these presentations were held only had about 20 seats in them -- and there are more than 400 negotiators. He attended the EFF's presentation, but also noted that "Attendees from a nearby presentation exited their conference room and loudly spoke outside the open door to [the EFF's Carolina] Rossini’s room, drowning out her message."

But, perhaps more interesting was Collier's encounter with Michael Schlesinger, a lobbyist for the IIPA (the International Intellectual Property Alliance -- a sort of "super group" of lobbying organizations, including both the RIAA and the MPAA, among others). The IIPA presentation immediately followed the EFF presentation, and involved Schlesinger promising to debunk the "myths" being spread by folks like the EFF. Key among them? That TPP would mandate disconnecting people from the internet. Myth, myth and more myth, Schlesigner declared: there are "no mandates to kick legitimate users off the Internet." Note the weasel word "legitimate."

However, Collier wasn't born yesterday. So he went and found the leaked draft of the IP section that was revealed back in February of 2011. And he noted that it does seem to include mandates for kicking people offline, such as saying that "effective action against any act of copyright infringement" would include things like "removing or disabling access... [and] terminating specified accounts." So, Collier went and found Schlesigner to bring this up, and Schlesinger made a remarkable admission: he claims he hasn't seen the text:

I asked him whether he stood by his presentation's claim that "TPP will result in 'kicking people off the Internet'" was a myth.

"It is," he said.

I showed him a printed-out copy of the section of the TPP leak that referred to "terminating specified accounts" of copyright infringers.

He visibly stiffened. "I'm not commenting on a leaked draft," he told me. "From what I know, the TPP framework would not force anyone off the Internet. I don't know anything about the TPP draft."

Had Schlesinger actually read the TPP, either the leaked chapter or the current draft? I can't say for sure. Legally, he can't have read the latter, because he's a federally registered lobbyist, which would bar him from seeing the text.

Got that? (1) He's not allowed to see the text. (2) He gets upset when someone points him to the leaked text. (3) He... also insists he knows, absolutely, what will not be in the text. How is that even remotely credible?

Walt Disney is a company that has regularly taken from the public domain, but which famously refuses to give back to the public domain. Many of its most famous movies were public domain stories that Disney co-opted and then locked up with copyright. Disney has also been one of the main proponents of expanding copyright at every opportunity. As many people have noted, it was a driving force behind the 1998 copyright term extension, which some have called the "Mickey Mouse Protection Act," because it kept Mickey Mouse from going into the public domain for another 20 years. So, it seems notable (as pointed out by the EFF) that one of the "stakeholder" presentations at the latest TPP negotiations was "The Walt-Disney Company: Creativity, Brought to you by Copyright."

Of course, that leaves out that Disney was more or less founded on both copyright infringement (the true history of Mickey Mouse involves Disney copying another movie that was still under copyright) and using the public domain, not copyright. Disney's creativity wasn't brought to the world because of copyright, but often in spite of copyright. You can find the history in lots of places, but this recent blog post highlights how many of Disney's early works exist thanks to the public domain:

The Disney company had a moderate level of success with the original characters featured in early black and white short films. Disney did not really hit stride until making full length animated features. Giving credit where due, “Fantasia” was original Disney characters and story line, if you want to call it that. “Fantasia” was literally a series of short animated stories edited together to a soundtrack made up of mostly public domain music for which Disney paid no license (with the exception of “The Rite Of Spring”).

From there on, most Disney feature animations would be based on stories that had since fallen into public domain. Snow White, Cinderella, Sleeping Beauty and many other princess stories, were based on age old fairy tales that Disney was not required to pay license or royalties for. Later works would include children’s literature like: “Pinocchio”, “Alice in Wonderland” , “The Jungle Book” (released just one year after Kipling’s copyright expired),– All in the public domain! Disney didn’t pay a cent for story license, yet reaped many millions. The “Little Mermaid”, “Beauty and the Beast”, “Aladdin” and all features made under the reign of Michael Eisner, would be from public domain. Of course, Disney touted “The Lion King” as an original story. Not! Besides being an adaptation of Shakespeare’s “Hamlet” told through a pride of lions, there are way too many similarities between The Lion King and a 1960s Japanese animated series called “Kimba the White Lion”. Though Disney claims these a coincidence, they would sue anyone else into oblivion if they came half as close to one of their properties.

It seems that perhaps someone else ought to do a presentation on "The Walt-Disney Company: Creativity, Brought to you by the Public Domain." Otherwise, we're going to see efforts like TPP seek to further kill off the public domain.

We've been talking about the incredible and ridiculous level of secrecy that the USTR has kept with regards to the TPP negotiations. While industry lobbyists are free to look over the exact details of what the US is proposing, the public, and even key Congressional staffers are left out in the cold. While USTR Ron Kirk keeps insisting that any elected member of Congress is free to look at the negotiating text, he's being disingenuous. Elected members are allowed to go to the USTR and request the document, which they will be given -- but only for viewing in that room, and they're not allowed to bring staff members (such as those who understand the ins and outs of what's being negotiated, nor are they allowed to make copies or even take notes). At the same time, lobbyists who are members of the USTR's "advisory committees" can login via any computer with internet access, and see what the latest text is without any concern. That doesn't seem right.

It appears that more and more people in Congress are getting fed up with this. A new letter has been sent to the USTR, on behalf of Congress (though, not surprisingly, spearheaded by Senator Wyden and Rep. Issa) demanding that this insanity stop, and that the USTR reveal what it's pushing for on behalf of Americans -- especially when it comes to the intellectual property sections.

Regrettably, the American people know very little about what the USTR is seeking in TPP generally, but specifically on IPR (Intellectual Property Rights). We believe that among all the areas of the TPP negotiations, the matters considered in the IPR chapter are ones in which there is particular public interest, therefore the USTR should be especially transparent and collaborative with the general public on these issues.

The American people deserve to know what the administration is purportedly seeking on its behalf.

We insist that, as expeditiously as possible, the USTR provide to the public detailed information about what obligations (and exceptions) the USTR is seeking in the IPR chapter. We call on the USTR to be particularly explicit with respect to what it aims to obtain as it relates to pharmaceutical drugs and enforcement of intellectual property rights online. Finally, it is important that the USTR convey to the American people whether the USTR is pursuing disciplines elsewhere in TPP that will promote an open and free Internet, given the Internet's increasing role in facilitating American exports of traditional goods and services as well as digital goods and services.

It seems likely that the USTR will simply ignore this letter, showing what kind of respect it has for Congress.

ITIF, the think tank that was often credited with coming up with the basic idea behind SOPA's horrifying plan to censor websites and break key parts of the basic DNS system (and, which we recently discovered, gets funding from the MPAA) is back and pushing for support of IP maximalism in the Trans Pacific Partnership (TPP) agreement. It has re-released a report about how the TPP must be "the gold standard" in trade agreements -- with a key focus on stronger and more limiting IP rules. In a press release about this re-release, ITIF argues for a strong maximalist agenda in the TPP:

Entering into a sub-standard Trans-Pacific Partnership (TPP) agreement that offers only weak intellectual property (IP) protections or permits countries to maintain mercantilist practices would be far worse than not joining the agreement

Of course, that's hilarious, because there's nothing more mercantilist in trade policy today than intellectual property rights. The basic concepts -- developed at the height of mercantilist fervor -- are all about protectionism for legacy players in the space. To argue in favor of stronger IP and against mercantilism makes no sense, because it's self-contradictory. Either ITIF is completely clueless on basic economics, or it's being intellectually dishonest. I can't tell which is worse.

U.S. trade negotiators should insist the TPP include the highest levels of intellectual property rights (IPR) protection, transparency in government procurement practices, removal of non-tariff barriers (NTBs), comprehensive market access provisions, and stringent enforcement mechanisms.

What's bizarre here is that, right after calling for IP maximalism, they immediately call for the removal of barriers and an increase in market access. You know what would actually do that? Ratcheting back the excesses of copyright and patent law. It's difficult to see how anyone can take ITIF seriously when they argue against themselves.

We've noted for quite some time that the USTR's idea of "transparency" is laughable. They pretend that letting a few critics speak briefly is "transparency." It's not. Transparency is revealing what you're proposing on behalf of the public. And, even the "hearing from critics" part is increasingly laughable. We recently noted that the USTR had already limited the "direct stakeholder engagement period" to just three hours, which is much shorter than usual. Now, word comes from the EFF that it's become even worse, as the USTR has sent them an email saying that their allotted 15 minute presentation time has been cut down to just 8 minutes, and they're splitting up the presentations into four different rooms -- so most negotiators won't even be around to hear any individual presentation anyway. Here's the EFF's concerns:

We just received an email from the USTR indicating that they are going to cut down the already inadequate 15-minute time allotment for our stakeholder presentation, to a mere eight minutes. In addition, they will all be held in four separate rooms. So not only will the presenters have barely any time to discuss their specific concerns with the agreement, it will literally be impossible for negotiators to attend all the presentations they would be interested in hearing since they will all be held simultaneously in different locations. Moreover, this entire round of negotiations will last 10 full days, and so it seems especially odd that they would need to cut down time for public participation this drastically.

And here's the email from the USTR:

Good evening,

You are confirmed for a stakeholder presentation slot on Sunday, September 9^th during TPP Round 14 Direct Stakeholder Engagement Forum.

Due to space constraints and an overwhelming showing of interest, we will have to limit presentation time to 8 minutes. Each presentation room will have a laptop, projector, and screen. If you would like to give a PowerPoint presentation, all you need to do is bring your presentation with you on a flash drive. No need to send to me ahead of time.
Please plan ahead so that your presentation fills the allotted time. We will have to stop you at the 8 minute mark in order to give every presenter an equal opportunity to make their presentation.

A schedule of presentations will be provided for you at the round. All presentations will be scheduled within the 11:00 am- 2:00 pm block, and take place in Potomac rooms A, B, C or D.

Thank you, again, for your participation. We value your input, and look forward to an on-going conversation regarding TPP.

Very best,

USTR

This isn't transparency. This is transparency theater, so that Ron Kirk can tell people he's being transparent, when he's being anything but.

We've talked about the ridiculous secrecy around the negotiating texts for the Trans Pacific Partnership (TPP) agreement. It makes no sense to have these documents secret and out of the view of the public, but it's what's happening. Because of that, we're forced to deal with very occasional leaks to get a partial view of what's being negotiated in our name without any oversight. ACTA was a somewhat similar situation, but there were more regular leaks there -- and we've heard that the USTR, in particular, has taken great pains to make it much more difficult to leak TPP text without revealing who leaked it.

However, it appears that some are (in some ways, quite literally) upping the ante in trying to pressure people into leaking the text. The folks over at ZeroPaid point us to some group that claims to have raised over $17,000 as a bounty for leaked TPP negotiating texts. They're asking for more pledges, though I have no idea whether or not the effort is legit. ZeroPaid points out that the site appears to be a project of Just Foreign Policy, which seems to at least be a legitimate organization, according to Guidestar. For what it's worth, the site also claims that you won't actually have to pay until the text is leaked, at which point they will ask you to fulfill your pledge.

The group's concerns seem reasonable as well:

The TPP negotiations have taken place under an unprecedented shroud of secrecy, denying all but a very few any input into the terms of the agreement. The chapters that have been leaked are quite disturbing, revealing plans that would threaten public health, the environment, internet freedom, and the general well-being of perhaps billions of people. Here's a little taste of what the agreement would include: foreign investor protections that would help corporations offshore jobs, powers that allow multinational corporations to challenge domestic regulations before international tribunals, a strengthening of patent and intellectual property rules which would, among other things, raise the price of life-saving medicines in third world countries, and the ability for Wall Street to roll back safeguards meant to restore financial stability worldwide.

Will this be incentive enough for someone to leak the text? I'm not so sure. I'd think that someone's basic conscience about having access to such a document should be a better reason, but you never know...

We've been writing about the Trans Pacific Partnership (TPP) agreement for a while now, so hopefully you're already aware and concerned about it. However, the good folks over at the EFF have now put together an infographic highlighting the problems of the TPP and what you can do about it. Check it out: