SOPA Supporters Urge White House To Use Secretive TPP Process To Insert Draconian New IP Laws

Legal Issues

from the sopa-reunion dept

We’ve been warning for a while about the TPP negotiations, and how the big interests who pushed SOPA were making a concerted effort to use the (very questionable and extremely secretive) nature of international trade negotiations to sneak through many of the things they wanted in SOPA, without any scrutiny. Make no mistake: while the public has no access to, or information about, what the federal government is negotiating, the big special interests are well informed. As pressure has been mounting against TPP, it appears that the US Chamber of Commerce has “brought the band back together,” putting outa letter to the Obama administration explaining why draconian IP rules must be included in the TPP. The letter is signed by a who’s who of SOPA supporters, including (of course) the Chamber of Commerce, the MPAA, the RIAA, A2IM, PhRMA, AAP, BSA, ESA and more. Basically, it’s a bunch of also ran industry trade groups whining to the feds that they can’t innovate anymore and they need economically damaging mercantilist-style protectionism.

For the TPP to achieve that vision, it is essential that the final TPP agreement incorporate comprehensive and high-standards for the protection and enforcement of intellectual property (IP) rights – including patents, trademarks, copyrights and trade secrets. And that outcome can only be achieved through continued and heightened U.S. leadership. By contrast, any attempts to weaken IP rights or to exclude any sector from protection must be strongly rejected and would be inconsistent with overall U.S. Government policy and U.S. economic and trade interests.

Almost nothing in that paragraph is accurate (or honest). The TPP can be a perfectly good trade agreement without touching on IP issues. It’s just that, in the past few years, industry lobbyists have realized that sneaking IP law expansion through international obligations is a good way (they thought) to keep them under the radar, and to get ridiculous rules pushed through without having to go through the standard legislative efforts. In fact, deals like these often require changes to the laws after-the-fact, which is exactly what the industry wants. Because then, rather than arguing for a law because they know it will hurt innovative upstarts, they can just stand around pouty-faced, talking about how we have to “respect our international obligations.”

Furthermore, there is tremendous evidence at this point that IP laws are way too broad and too draconian, and that’s causing significant hindrance to innovation. Claiming that no weakening of IP laws can be allowed is a ridiculous and unsupportable maximalist agenda, designed not to help the US, but to lock in entrenched players at the expense of disruptive innovators.

We commend your Administration for recognizing the key role played by innovative and creative industries in driving economic growth, jobs and competitiveness. As recently highlighted in the March 2012 U.S. government report – Intellectual Property and the U.S. Economy: Industries in Focus – U.S. IP intensive industries support more than one in every four jobs, over one-third of GDP, and approximately 60 percent of exports. The protection and effective enforcement of IP rights are therefore of critical importance to the economic growth and prosperity not only of the United States but also of its eight TPP-negotiating partners.

This is a load of hogwash. The “report” used the US Chamber of Commerce’s own totally discredited methodology to inflate numbers to ridiculous levels. Furthermore, the US CoC’s interpretation that this report shows that enforcement is “critical” is, once again, complete hogwash. It assumes — without any proof whatsoever — that these IP intensive industries exist because of strong IP laws.

What the letter conveniently ignores is that some of the largest players — and the fastest growing ones — included in the list of “IP intensive” industries were the tech companies who fought against SOPA and who have complained about enforcement and protection levels being way, way too high. To use those industry’s own growth as proof of the need for greater enforcement isn’t just disingenuous, it’s downright obnoxious.

As you and your Administration have repeatedly recognized, strong IP protections have been an essential element in fostering the explosive growth in new and more efficient technologies, increased productivity, life-saving medicines and other health technologies, as well as a wide variety of creative and educational works. As a result, high-standard IP protections are a key driver of economic growth in the United States and overseas and are linked to the creation and retention of jobs in industries as diverse as consumer and industrial products, educational products and entertainment, scientific products and equipment and information and communications technology.

Ah, flattery. And yet, there is no evidence to support the statement above. In fact, research has shown that IP laws do not, in fact, lead to explosive growth in technologies. Rather, the laws tend to lag growth — showing that massive growth often happens in the absence of such laws or with weaker laws. The laws are then put in place to protect the leaders against new upstarts. This is exactly what the signatories of the letter are trying to do.

While the benefits of strong IP protections and enforcement are widely supported throughout the United States and safeguarded in our Constitution and laws, such protections are at serious risk in the ongoing TPP negotiations. Some seek to enshrine low standards of protection, with limited enforcement, in the final TPP agreement, arguing that U.S. proposals would be harmful and could undermine other interests.

Actually, some seek to push back on the ridiculous excesses of those who signed this letter, in order to look out for what actually benefits the public the most. Shocker, I know, but these laws are supposed to (we’re told) benefit the public. Of course, the letter attacks such claims as well:

The strong IP protections proposed by the U.S. government in the TPP negotiations do not represent, as some suggest, a threat to public health, the development and expansion of the Internet or rights of freedom of speech, but rather a much-needed response to increasingly sophisticated threats to IP protection throughout the world. More, not less, rigorous IP rules are needed to thwart the explosion in IP infringement, including of pirated, counterfeit and unlawful copycat products throughout all sectors of the economy, and trade-secret theft.

Notice how these groups don’t even hide the fact that they know what IP protections are being proposed by the US government in the TPP negotiations. That’s because they’re heavily involved in the process. You know who’s not? The public. When special interests — especially ones with a history of trampling all over the public interest — get to help write the laws and the rules, while the public is kept in the dark, it’s a pretty safe bet to expect that the public will get trampled again. Sorry, special interests, but saying you won’t trample the public interest, while not letting the public into the debate, isn’t that convincing.

Furthermore, we’re already seeing such laws harm public health, hurt internet development, and be used to attack free speech. We can provide tons of examples. So claiming that it won’t do more of that is a laughably ridiculous assertion.

What’s also true is that never has expanding IP laws and enforcement been successful in “thwarting” infringement. It may work briefly, but within months, people find other ways to infringe. The only thing that works is encouraging real innovation in the field — enabling startups to enter the market and do cool new things. Let them compete with “piracy” and innovative companies can and do succeed (though the industry then wants to shut them down or squeeze more money out of them). Yet the TPP isn’t about enabling disruptive innovators. It’s about giving slow, lumbering legacy companies who don’t want to adapt the ability to kill innovation.

In their essence, the arguments against strong IP protections are largely based on the misguided assumption that strong IP protections advance only the interests of IP exporting countries and disadvantage countries with less well developed IP-dependent industries. In fact, the adoption of strong IP protections by all countries in the TPP and more widely promotes strong benefits for all, whether or not the country has developed its own major IP-based industries

Citation needed. Seriously. Because tons upon tons of studies have shown exactly the opposite.

Developed and developing countries that have adopted stronger IP protections have proven better able to develop their own technological, science, creative and other innovative and IP-dependent industries, advancing their own economic growth, productivity, exports, innovation and the interests of their workers and consumers alike.

This is lying by use of correlation, rather than causation. The real relationship is the opposite of what they’re saying. The innovation almost always precedes the increase in IP protections, which then grant the leaders the ability to stifle upstarts and innovation they don’t control. While it’s true that developed nations have stronger IP laws, that’s more about crony capitalism happening after the fact, rather than stricter laws being the cause of the innovation and growth.

The letter, in typical fashion, is a complete joke. The claims don’t stand up to any sort of scrutiny. The authors must know this, but in a political world, they can get away with being extremely disingenuous.

Filed Under: chamber of commerce, mpaa, riaa, sopa, tpp