Copyright Maximalist Talking Points On Leaked TPP Draft

from the just-keep-repeating... dept

It would appear that a set of talking points that copyright maximalists have been sending around to each other concerning how to respond to the leak of the TPP draft have, themselves, been leaked (to me, at least). As we predicted, the focus is on “this won’t change US law,” but let’s go through all of them to show why the talking points are misleading or ridiculous.

The Draft Is Already Outdated. The draft is dated August 30, 2013. Since that date, there have been intensive TPP negotiations, including specifically about the IP chapter, as countries have redoubled efforts to conclude the negotiations by the end of the year. The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations.

This is true. But meaningless. After all, we’ve seen nothing on this chapter since early 2011 (other than the USTR briefly mentioning plans to push for a “three step test”). So, while changes have been made, what we do see are the negotiating positions of many of the participants — and especially the US’s extreme positions. There’s a lot that can reasonably be said about those positions beyond that “it does not reflect the current state of negotiations.” If it later comes out that the US did a complete 180 in September and October, walked away from pushing insane maximalist propaganda, then we’ll be happy to report on that. But it seems unlikely.

Almost Everything Is in Brackets. No one can say what the TPP IP chapter would do because almost nothing in the draft text is agreed – it is almost all in brackets, meaning not agreed. Given how inter-related the chapter is (e.g., obligations can be limited by exceptions in a separate article; specific provisions in one article may be affected by general provisions in another), it is effectively impossible to make any accurate claims about what TPP would require. So, any source making a claim about what the TPP IP chapter would do is making it up. At best, these claims are hypotheses about which of various brackets would stay and which of various brackets would go. At worst, they are calculated misinformation.

Uh, no. Yes, everything is in brackets — meaning not yet agreed to — but to argue this means that no one can reasonably say what the IP chapter would do if those brackets were made official is simply ridiculous. People can read and can understand what those brackets say. And they can see that the US’s position is unquestionably towards pushing maximalism.

What It Would Not Require: Changes to U.S. IP Law. While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do — since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law. Unlike the claims likely to be made by the anti-TPP voices, this one is objectively provable – please see the implementing legislation for all of the modern FTAs: P.L. Nos. 108-77, 108-78, 108-286, 108-302, 109-53, 109-283, 109-169, 110-138, 112-41, 112-42, 112-43. In recent years, it has been commonly known that USTR would not accept changes to U.S. IP law through an FTA.

Kind of funny to see this point immediately after the one that says that “any source making a claim about what the TPP IP chapter would do is making it up.” Apparently that only applies to TPP changes that the copyright maximalists don’t want you talking about. Either way, this was our main prediction and it’s exactly what the USTR has been saying (in fact, his statements, almost to a word, seem to repeat these talking points… which I’m sure is just a coincidence, right?). It’s not true. The things that the US is pushing for within the TPP quite clearly do not match up with existing law, though they’re sneakily written in a way to pretend they do. That is, they use some of the same language and ideas, but leave out important limitations and exceptions, which make the current law work.

But, as we stated, the much more important thing is the fact that the TPP locks in bad law just at a time when Congress is looking to update the law. Even if it doesn’t lead to a change in US law, blocking important changes to US law is just as bad, if not worse. Especially when it’s done by an undemocratic, secret process driven by industry insiders rather than the public.

A Really Simple “BS Meter”: Does that Happen Under U.S. Law? Given that in FTAs this century, USTR has not signed off on an IP chapter that required changes to U.S. IP law, and those FTA IP chapters have in fact been consistent with existing U.S. IP law, there is a very simple “BS Meter” one can use to evaluate claims about TPP: “Does this happen under U.S. law now?” If the answer is “No,” then the claim is “BS.” If recent rhetoric is any indication of what is in store for TPP, get your shovels ready.

Again, the real issue isn’t about how it requires changes to US law, but how it prevents necessary (and requested by the head of the Copyright Office and the President of the US) changes to US copyright law. Besides, as always, using free trade agreements to prime the ratchet has always been a part of the long game. You set it up so that you don’t need to immediately change your laws, but it does force nearly everyone else to put in place worse laws — and then the maximalists go running around talking about how we need to “harmonize” our laws with the rest of the world.

But, again, there is proposed text in the agreement that, would, in fact require changes to US law. As a single example, Mexico has proposed extending the length of copyright yet again, this time to life plus 100 years. While that’s just one proposal from one country, there are many other tidbits like that as well.

The Only Real “News” – Many Bogus Claims Are Now Verifiably False. Despite the fear-mongering over “secret” TPP negotiations, the U.S. position on intellectual property in TPP has never really been a secret – the IP chapters of the previous FTAs this century have been remarkably similar. Now that a draft of the text has been released it confirms that the U.S. is seeking IP provisions remarkably similar to those in the KORUS FTA, which received widespread support including from the tech community. The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.

This one is funny. And totally bogus. The leak of the TPP text absolutely confirmed the fears of the secret negotiations. What we’ve seen is that the US is pushing maximalist positions strongly, leaving out the important flexibilities and counterbalances found in laws elsewhere, effectively trying to ratchet up bad intellectual property laws around the globe, while making it effectively impossible to fix the problems with our broken system. Furthermore, the lack of public involvement and public comment has made it so what the US is pushing is filled with little tricks and Easter eggs designed to benefit a few legacy players at the expense of the public and innovators.

While they mock claims like “the TPP endangers internet freedom,” — that’s fairly directly provable from the leaked text. It would lock countries in to passing bad copyright laws, which would absolutely endanger internet freedom by decimating secondary liability laws, encouraging criminal prosecutions for very limited infringement, and making things like temporary copies illegal (something that is not currently the law in the US).

And that’s just on the copyright side, not even touching on the patent stuff, or the corporate sovereignty “investor state dispute resolution” mechanisms that would allow companies to sue countries who don’t give them the copyrights or patents they want.

Either way these talking points all clearly try to steer away from the real issue with this whole thing: a backroom deal where only corporate lobbyists had access — which even the former USTR flat out admitted couldn’t be passed if the public knew what was in it — is clearly not an agreement designed to benefit the public. To the contrary, this agreement is entirely designed to favor a small group of special interests: companies who have long past their innovative stage, and are now looking for anti-innovative, protectionist measures. It’s an economic and innovation suicide pact, designed to help big campaign contributors.

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Comments on “Copyright Maximalist Talking Points On Leaked TPP Draft”

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out_of_the_blue says:

Your copyright framing is a LIE, Mike. It's MUCH bigger, MUCH worse.

‘It’s a stealth corporate coup d’etat.

It’s a giveaway to banksters. It’s a global neoliberal ripoff. It’s a business empowering Trojan horse. It’s a freedom and ecosystem destroying nightmare.

The Electronic Frontier Foundation (EFF) calls it “a secretive, multi-national trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement.”‘

One of Mike’s favorite terms is “copyright maximalist”, and yet his own goal, along with all corporations, is Money Maximalization: to reduce quality and get more profits.


Gwiz (profile) says:

Re: Re:

Your copyright framing is a LIE, Mike. It’s MUCH bigger, MUCH worse.

Read the WHOLE article Blue. Mike acknowledges that he is only touching on the copyright part with:

And that’s just on the copyright side, not even touching on the patent stuff, or the corporate sovereignty “investor state dispute resolution” mechanisms that would allow companies to sue countries who don’t give them the copyrights or patents they want.

Once again, if you maybe took just a second before you rush in to post something on every article you wouldn’t look so stupid.

crade (profile) says:

“experience provides an answer for what it would not do — since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law”

experience tells us that if we manage to oust all the evil crap they are trying to pull over on us and if we fight hard enough and loud enough against it, we *might* be able to prevent ACTA and SOPA and such from requiring changes to U.S. law. (Or at least delay them a year and force them to rename it)

crade (profile) says:

Re: Re: Re:3 Re:

In fact, I don’t know anyone who intentionally infringes who gives a crap what they do to copyright law.. Why would someone care if they change the copyright term to 200 years or whatever law if they aren’t following it how it is now at [depends on the current position of the moon relative to jupiter] years?

Karl (profile) says:

Re: Re: Re:3 Re:

Because it’s a common maximalist tactic to pretend that the only possible objection anyone could have to overbearing copyright laws is that it will stop them from piracy.

It’s more than that. It’s a deliberate depiction of anyone who is technologically knowledgeable, as someone who is immature and socially maladjusted. Their arguments can then be dismissed as nothing more than a symptom of personal defects. (“You only think this way because you’re immature.” “Despite what you say, you only care about getting stuff for free, because you’re too socially awkward to get a job.” And so on.)

It is used mainly by people who are technologically illiterate, and its goal is to invoke and exploit anti-intellectualism.

In reality, of course, the readership here is generally older, more highly educated, and has bigger incomes than most other sites on the Web. Almost no Techdirt readers are under 18; most are 25-34. There are almost three times as many Techdirt readers with college degrees than without; and about three times as many make over $50K/year than make less.

By why let reality get in the way of good ol’-fashioned stereotyping propaganda?

Not an Electronic Rodent (profile) says:

Re: Re: Re:6 Re:

and no AC is full of crap

Well that’s a possibility. It’s entirely possible that he’s the narrow minded, spittle-spraying, know-nothing moron he appears to be.
On the other hand, it could be that he does it deliberately since, in an article about just how amazingly shit and dishonest the US government is when dealing with matters that directly affect everybody in the world for a long time to come, coming up for 1/2 the comments so far are responding to his irrelevant ranting…

Anonymous Coward says:

‘as countries have redoubled efforts to conclude the negotiations by the end of the year’

that should read ‘the USA has redoubled efforts to conclude the negotiations by the end of the year’ so other nations have little time to change anything further after the true text is discovered!

just because it MAY mean (and i doubt it very much!) no change needed to USA law, doesn’t give the USTR, the USG or any part of the the USG or USA businesses the right to instill USA law on to any other nation, whether involved in these talks (they are definitely NOT negotiations as only the interests of anything and everything US-wise is talked about. anything else is immediately shouted down or dismissed because it doesn’t do the best thing for the USA! selfish bastards!)

TasMot (profile) says:

You Keep Labeling These Agreements Incorrectly

You keep calling them FTA negotiations. Actually, they seem to be more of LIFFFTA, as in they LIFFFTA profits. It stands for Legacy Industries Freedom From Free Trade Agreements. I mean after all, a Free Trade Agreement would open trade up more, not provide so many restrictions that try to keep out innovators and start-ups from causing disruption and lowering the profits from the cash cows of legacy (US) industries.

Just saying…..

That One Guy (profile) says:

Re: Two ways to look at it:

Imaginary Property, and copyright law is pretty much like a drug to these people, they don’t have an end-goal in mind, so much as desperately need a ‘fix’. The problem is no matter how much they try, the ‘boost’ they get from each fix gets weaker and weaker, so they try and increase it by expanding IP law, hoping that’ll work.


They’re so fixated on the ‘magic cure’, the idea that they can legislate themselves into riches, that they are completely and utterly unable to see how useless or even counter-productive their actions are, both to themselves and everyone else. Denial if you will.

They’re so fixated on ‘solving’ the problem with increased laws, that when they inevitably don’t work, the only possibility they can even think of is that the laws just aren’t big enough, harsh enough, and that just a little more will finally do it.

Anonymous Coward says:

Do you honestly expect the TTP to dictate US Law ??


I thought that was an issue for the US and the US congress…

It would simply not be legal for the US to enter into a partnership if that meant being in breach of the current US laws.

its not a ‘golden back door’ for law reform, its an agreement, and has to be within the existing laws, I don’t think the constitution stated that “The TPP may make laws!!”.

But nice try anyway, nothing like trying to confuse the issue for your own motives and biases.

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