The Most Nefarious Part Of The TPP Proposal: Making Copyright Reform Impossible

from the the-tricks-they-pull dept

So with yesterday’s revealing of the IP chapter of the TPP, there are plenty of great analyses out there of what’s in there, but I wanted to highlight some parts that are the most nefarious and downright slimy in that they represent parties (mainly the US) pretending to do one thing while really doing another. These are tricks pulled by a dishonest, shameful USTR, entirely focused on making his corporate buddies richer at the expense of everyone else. Remember, our current USTR, Michael Froman, has a long history of this kind of crap. While he hasn’t been there throughout the negotiating process, it shouldn’t be surprising that he “delivers” this sweetheart deal to a few legacy industry players.

Watch closely, and you’ll see supporters of TPP, and especially USTR employees, make the claim that nothing or almost nothing in the TPP will require legal changes in the US. They’ll say that this is just about “harmonizing” norms across borders to make it easier for businesses to do business internationally. This is a lie.

It’s a lie in two different ways. First, there are multiple provisions in here that will absolutely require changes to US law. We’ll discuss a few in other posts, but what’s much more nefarious and downright obnoxious, is that this would lock in a variety of really bad copyright policies, making it nearly impossible for Congress to go back and change them. And that’s a real issue, because, as we’ve been discussing, Congress is actually discussing copyright reform again. The head of the US Copyright Office, Maria Pallante, has proposed a bunch of changes to copyright law (some good, some bad), and astoundingly, just as Congress is at least trying to have the discussion about whether or not those and other ideas make sense, the USTR is looking to effectively tie everyone’s hands by saying “these things cannot be changed,” including many of the reforms that Pallante has directly proposed.

That’s really quite incredible if you think about it. On the one hand, you have the very head of the Copyright Office suggesting some reforms, and you have Congress beginning the process to explore that. On the other, you have the USTR totally ignoring the sole power of Congress to make copyright and patent law, and effectively saying “you cannot make any of the suggested reforms.” And then the USTR has the gall to ask Congress to give up its power to challenge specific provisions in the agreement? While we’re concerned about the Congressional copyright reform process, at least it’s being done in the open. The USTR has been hashing out the plan in TPP in total secrecy for years.

Who the hell does the USTR think they are that they can flat out override the Constitution and the Congressional process, and effectively block them in and stop any meaningful attempt at copyright reform? All done via a process driven entirely by a few special interests? It’s anti-democracy. It’s pure corporate cronyism by the worst cronies around.

Now, defenders of this proposal will lie. They’ll claim that technically (1) Congress has to approve this and (2) nothing in a trade agreement can limit Congress’s ability to pass laws. Neither point is really true (the fun with things that are “technically” true, but false in reality). As mentioned above, the USTR (and President Obama) is pushing extra hard for Trade Promotion Authority, which basically is Congress granting the USTR full power over the TPP. Normally, Congress would be able to debate, challenge and reject questionable provisions in the agreement. But, with TPA “fast track” ability, Congress could only give a yes/no vote on the whole package. And, yes, some will claim that they can just vote no, but the reality is that there are other parts of this agreement that are designed to make that nearly impossible. There are all sorts of little things that we’ll be told we “need.” TPA is a bit of theater. What’s delivered to Congress will almost have to be passed — so if it’s granted (before it’s even public what’s in the full agreement) — Congress has effectively approved the whole agreement.

As for the claim that Congress’ hands cannot be bound by a trade agreement, this is again technically true, but it ignores that it becomes realistically impossible. The second that Congress tries to change a law that goes against the TPP — such as, say, reducing the term of copyrights from the insane level today to merely crazy — lobbyists and pundits will come screaming from every direction about how we can’t abandon our “international obligations.” We’ll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it’s in the trade agreement, “breaking it” becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they’ve perfected this process of getting crap they can’t get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it. They’re not even shy about it, admitting this is exactly how they got the DMCA in the first place. Considering that the TPP has a form of DMCA-on-steroids, it shouldn’t be a surprise that they’re using an even bigger trade agreement to do the same thing.

All of this should lead to a basic question: why is the USTR and President Obama directly trying to undermine Congress’ sole authority over copyright and patent policy? Are they proud of the tricks they tossed in the agreement? I imagine that when the USTR staffers move on to their jobs in the same industries that pushed them to write the agreement this way, they’ll all laugh about that time they fucked over the American public.

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Comments on “The Most Nefarious Part Of The TPP Proposal: Making Copyright Reform Impossible”

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51 Comments
Duke (profile) says:

It's about ratcheting up the law...

It’s a fairly standard process now. Country A expands copyright law. Then they push a treaty or agreement which encourages other countries to match them. Except the treaty has room for uncertainty; enough so that, before it is in force, the countries can claim that it is compatible with their existing laws, but afterwards can be used to justify an expansion.

And so one country goes further than the others (with duration that’s currently Mexico, with the longest duration – and it’s pushing for some longer copyright in TPP, along with the US). And then it starts again, with that country leading the way to push their position on others.

But at each level the treaty locks things into place, so even if things go wrong, copyright can never get reduced or shortened. Even if all the countries realise they don’t actually want such strong laws, they can’t do anything without re-negotiating the treaty (and possibly not even then, if it has investor-state dispute resolution procedures).

Copyright always gets bigger, never smaller.

There’s a good explicit example of this in the recent change to UK copyright law (covered by Techdirt here). It extends copyright in various situations, including some where it returns works that were in the public domain back into copyright. But then there is a specific section that makes it clear that even if the drafters have screwed up somewhere and made copyright shorter for some works, the old term will still apply. It’s a one-way process.

John Fenderson (profile) says:

It should be illegal

It should be illegal for Congress to delegate its responsibility and authority to other agencies. The TPA would be Congress delegating away its legislative authority and responsibility much as they’ve delegated away their war-making responsibility and authority.

It seems they are increasingly simply refusing to do their jobs at all.

Anonymous Coward says:

Re: It should be illegal

Their job appears to be making laws to protect their cronies business interests, which also gives them a job if they leave congress. They appear to be doing that rather well. What’s that, you expect them to look after the interests of the little person when there is no money or future jobs coming from them.

Anonymous Coward says:

Re: It should be illegal

As good as that sounds, it’s not realistic.

Things like the FDA, and a ton of other agencies can effectively modify existing laws with the power they’re given. If you took that power away from the FDA, then congress would have to vote to approve EVERY single new prescription drug, and a ton of other things that would simply flood them with applications for slight changes to the law to allow new products, and would require congress, a set of law makers, to write thing like environmental standards, etc, even though almost none of them have any environmental safety/etc real world experience.

And then congress itself is also quite corrupted with money. What would stop a drug company from lobbying congress to let them sell a new drug that would never pass FDA safety tests?

John Fenderson (profile) says:

Re: Re: It should be illegal

Things like the FDA, and a ton of other agencies can effectively modify existing laws with the power they’re given.

yes, but there are two differences for things like that. First, congress theoretically oversees what the FDA does. The FDA merely acts as Congress’ proxy.

Second, and more importantly, the FDA does not, in fact, create law. The TPP is lawmaking.

Anonymous Coward says:

150 House Democrats Against Fast-Track

?Dems reject ?fast-track? power for Obama?, by Ben Goad, The Hill, Nov 13, 2013

More than 150 House Democrats said Wednesday they would oppose the White House?s bid for ?fast-track? trade authority while accusing the administration of keeping them in the dark about international negotiations.

In a letter to President Obama, the lawmakers said White House trade promotion authority (TPA) would further limit their power to help shape the Trans-Pacific Partnership (TPP) and other trade pacts, which have major domestic policy implications.

[…more…]

See if your representative signed the letter.

out_of_the_blue says:

"It's pure corporate cronyism by the worst cronies around."

Oh, I don’t know. We never hear of the worst because The Establishment protects them the most. Wall Street, for instance, is full of mega-thieves gambling in a casino and if they lose, their cronies in gov’t bail them out with tax money — and no one goes to jail.

But good to see Mike at long last going Populist and writing about bad corporate actors! More of this!


“Crony capitalism” is a term used to try and maintain that there’s also a beneficial version; what the 99% actually want is well-regulated fair markets favoring Industrial Production over Money Manipulation.

08:46:10[j-117-1]

Anonymous Coward says:

22 House Republicans Against Fast-Track

?Tea Party Joins Liberals in Push Against Fast-Track Trade? by Laura Litvan, Bloomberg, Nov 13, 2013

U.S. lawmakers on opposite ends of the political spectrum are objecting to putting trade deals on a fast track for congressional approval, threatening one of the business community?s top priorities.

?.?.?. Yesterday, 22 House Republicans, including some aligned with the small-government Tea Party movement, sent their own letter saying they won?t give ground on being able to change trade pacts.?.?.?.

Sorry, no link for the Republican letter, but the Bloomberg story has a couple names listed.

anonymouse says:

What a loss!!!

Imagine if you were in these negotiations and it took you many years and lots of money to get the necessary people together to plan out the future of trade between countries just for every trade agreement to be stopped at the last hurdle because of copyright middlemen not wanting to lose their massive profits from artists work.

I see the main players in the TPP deleting all reference to copyright laws and just trying to pass what the TPP should be about, Trade between countries, not strengthening copyright laws that people are ignoring anyways becasue they go way too far in restricting what can be done with content.

Anonymous Coward says:

Re: What a loss!!!

That would be difficult since Hollywood is very dependent on getting more and more extreme copyrights to keep their Hollywood accounting in balance and alleviate the Californian deficit/deficit spending flowing (Prop. 30 is only a temporary dam, barely holding the tide untill 2016-2018 when the levee starts breaking fo reals unless something drastic happens.).

Record companies are a distant second together with a lot of larger companies wanting to hatchet up more dough for their R&D indirectly (new product = new copyrights etc. There is a reason rags-factories and other brand-heavy companies use copyright above trademarks to smack down on others!).

Anonymous Coward says:

Congress seems hell bent to give up it’s delegated authority, even when mandated by the Constitution.

Sen. Elizabeth Warren is calling out the DOJ about not going after the CEOs of major banking and Wallstreet for criminal activity regarding the housing bubble.

Republicans are investigating the possibility of impeachment for Eric Holder, head of the DOJ.

If there were ever a declaration for the corruption on Washington, the TPP should be a red flag.

The Conscious Catholic says:

its too late now, they pissed off congress

Now with congress infuriated about the fast track and secrecy, and the rise in opposition, its going to be longer for them than they thought.

this is why I trust Video Game Industry more than the rest of entertainment,

they embrace innovation instead of fearing it like this senile old folks who are just too scared of the idea of something not recorded on a piece of plastic.

Anonymous Coward says:

Not just Congress they're trying to bypass

If you look closely at the text, the negotiators are trying to bypass the Judicial branch as well. For instance, one of the key findings in Cablevision was that the copying of streaming content for buffering did not, in itself, constitute copyright infringement.

Then you look at the US’s proposed version of Section QQ.G.1:

1. Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary
(including temporary storage in electronic form).

And footnote 130:

130 [CL/NZ/MY/BN/JP propose: It is consistent with this Agreement to provide exceptions and limitations for temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between
third parties by an intermediary; or (b) a lawful use of a work; and which have no independent economic significance.] [Negotiators Note: Discussions indicated no substantive objection to the concept, however, Parties continue to consider whether the footnote is required, where it might best be placed, and how it should be drafted.]

I have a strong hunch that the parties who question “whether the footnote is required” include the USTR; in other words, they’re trying to sneak a reversal of the Cablevision ruling into the treaty.

Duke (profile) says:

Re: Not just Congress they're trying to bypass

I may be wrong but I think Article QQ.H.12 is more relevant to the Cablevision ruling:

[US propose: Notwithstanding Article QQ.G.16 [limitations and exceptions] and Article QQ.G.14.3(b) [over the air broadcasting reference], no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.]

Although that comes with the footnote:

[US: For purposes of this Article and for greater certainty, retransmission within a Party’s territory over a closed, defined, subscriber network that is not accessible from outside the Party’s territory does not constitute retransmission on the Internet.]

I don’t know enough about the Cablevision ruling or current law to know whether or not that conflicts. My instinct is that the main Article would negate the ruling, but the footnote saves it. Perhaps someone with a greater understanding of the US legal position could comment.

Gabriel J. Michael says:

US proposal contradicts SCOTUS ruling in Kirtsaeng

Hard to read Article QQ.G.3 in a way that doesn’t explicitly contradict the Supreme Court’s ruling in Kirtsaeng v. John Wiley.

Also, when you look at the brackets in this article, you find that the US is the only one proposing this language. Someone needs to directly ask USTR Froman why he and his agency are lying about the TPP not altering domestic law.

That One Guy (profile) says:

Re: Re: Re: US proposal contradicts SCOTUS ruling in Kirtsaeng

Except this wouldn’t be a case of a law/ruling being rescinded/overruled through a court ruling, but rather a trade agreement, buried among all the other articles in it.

Think about that for a moment if you will, without anyone setting foot in a court room, they’d have overturned a Supreme Court decision, a ruling from the court that is supposed to be the highest arbitrator of the law in the country, and in a manner that the ‘new’ ruling on the subject couldn’t be challenged without challenging the trade agreement itself(something those pushing the agreement are trying to make as impossible as they can).

Anonymous Coward says:

This sounds like for of the usual “sky-is-falling” rhetoric so common here. The copyright terms in TPP are generally similar to the terms of other FTA’s to which the US is already part of. So to the extent that’s true, there are now in place significant limits on the ability of Congress to dilute copyright and its enforcement. There’s nothing particularly shocking or new here. The contrived panic by the article’s author is simply for theatrics.

Anonymous Coward says:

Re: Re: Re:

I’ve got news for you. The voluntary agreements coupled with six strikes is far more impactful than SOPA.

By the way, after all of the wailing, keening and gnashing of teeth over six strikes?.. what happened? It worked, that’s what. And mostly people got it and stopped freeloading or started taking extraordinary measures to continue to freeload. But the “soft middle”; those opportunistic infringers at whom these measures are targeted seemed to get the message and cut the bullshit before their service got throttled. And what of the massive injustice of the appellate process? I don’t know about you, but I haven’t heard a peep.

Karl (profile) says:

Re: Re: Re: Re:

what happened? It worked, that’s what.

Uh, no, it didn’t. At least, there’s absolutely zero evidence that it did.

It’s true that BitTorrent traffic has seen its first decline this month. But it is largely due to two factors:
1. More legal alternatives (which explain why BitTorrent traffic is lower in countries that have e.g. Netflix).
2. File sharers moving to non-BitTorrent methods, like Tor or encrypted cyberlockers.

There is no evidence at all that the “six strikes” had thing one to do with it. As a matter of fact, in the months following the Six Strikes program, U.S. traffic to the Pirate Bay website actually increased.

And, besides, it would only “work” if there were more sales being generated as a result. But on the contrary, recorded music sales have slumped – and for the first time ever, that includes digital sales.

Considering that the Six Strikes program costs about $2 million per year to run, I’d say it is a total and colossal failure.

The absolute last thing that any country should want is to make programs like this the law.

Anonymous Coward says:

Re: Re: Re: Re:

What happened with the “six strikes” bullshittery is that most of the people who would have watched Hollywood movies or TV chose not to bother to watch them at all if they couldn’t download them. Result? Less word-of-mouth and less money for Hollywood and TV execs.

This is somewhat counteracted by Hulu, but only somewhat.

Anonymous Coward says:

but it isn’t just the American people, is it? and as soon as another country, even before anything is finalised and signed, tries to get terms that are favourable to it and it’s people, the threats come out over sanctions and trade hold ups. everything that the USTR is doing is for the benefit of the USG and certain US industries! if any other nation signs on for this, whoever did the signing want standing before a firing squad for treason! no one country should put itself before it’s people and definitely before the people of other nations. Obama is probably doing his best now to repay the backing he had from the industries concerned. i hope the people rebel against this or there is going to be some serious shit hit fan! the USG is definitely not flavour of the month after the NSA spying. this is going to royally screw it!

Anonymous Coward says:

This article makes everything clear and also makes perfect sense. I knew “Fast Track” is a bad idea, but I had no idea how horrible it really is.

So basically these “Free Trade” agreements are corporations convincing governments around the world, to hand over their authoritarian power to some of the largest multinational corporations on this planet.

Effectively transferring economic oversight for all the world’s economies, from Congress, to some of the largest corporations in the world.

This is a perfect example of “Too Big to Fail”. The largest corporations will eat the smaller corporations. Smaller companies won’t be able to get off the ground, because the largest corporations own most of the patents. Or litigate them out of business.

We’ll end up with record unemployment and lower wage jobs, because every store in the world will be a Walmart.

When the “Too Big to Fail” industries finally do fail, due to a pissed off population, things will be much worse than they currently are now.

Cerberus (profile) says:

Re: It's not only Lobbyist we'd need to worry about

Exactly! That is what will happen if this mercantilist treaty is ratified: parliaments, courts, and constitutions will have to be ignored, or countries will be sued at one of those three-lawyer tribunals that enforce such treaties, and the countries will be made to pay billions because some foreign corporation doesn’t like a certain law/verdict/constitution. It’s almost treason by their trade representatives.

Corwin (profile) says:

What's "impossible"?

Copyright, like sexual fidelity and superstitious faith, is an obsolete concept from way back when we didn’t know EVOLUTION. Even thinking about trying to enforce copyright in a world that has computers is like trying to forbid being wet on the surface of a planet that’s 70% water.

Copyright reform already happened. We call that THE INTERNET.
Policy and laws are irrelevant to REALITY. They’re fictions collectively held to be true. Collective solipsism, as meaningless and worthless as believing in an anthropomorphic personal God-creator, or the Easter Bunny. It’s not real just because children believe in it when lied to by authority figures. Laws are not more real than that, they’re just believed in by so-called adults. Who then go about trying to enforce them even if they’re as absurd as trying to ban the tides from the beaches!

There are two rules worth living by : 1/No harm 2/No theft. EVERYTHING else is obfuscation.

GEMont (profile) says:

Business as Usual

“why is the USTR and President Obama directly trying to undermine Congress’ sole authority over copyright and patent policy?”

Sounds like standard corporate procedure to me. After all, what corporation tells the public what its planning to do, when those plans are utterly detrimental to the public??

I see no reason why USA Inc., commonly known as the Federal Government, should warn the public of their plans to insure the eternal profits of their Entertainment Industry partners and friends at public expense and risk the public’s angry response and possible failure of their plans.

That’s simply not how corporations do things.

But you probably thought the US Federal Government was something other than the Entertainment Industry’s Public Relations Contracter, didn’t you. 🙂

That One Guy (profile) says:

Re: Business as Usual

But you probably thought the US Federal Government was something other than the Entertainment Industry’s Public Relations Contracter, didn’t you. 🙂

I don’t think anyone who’s actually informed, and has been following what they’ve been doing believes that actually, though it’s far more than just the entertainment industry pulling the strings.

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