New North American Trade Deal Keeps Useful (But Limited) Liability Protections, Dumps Bad Biologics Data Protection

from the not-bad dept

When the NAFTA replacement “USMCA” agreement was first announced last year, we noted that it included a mix of good and bad ideas. The key good idea was that the USMCA contained a bit of language establishing a requirement for strong intermediary liability protections, similar to (but not exactly the same as) Section 230’s protections in the US. Among the really bad ideas was expanding the data protection term for biologics — which, we’ve noted, is really dangerous for basic science and innovation for new drugs — but was supported by big pharmaceuticals to increase their monopoly power and ability to extract monopoly rents.

So it seems like good news that the latest version of the agreement keeps the intermediary liability protections and drops the biologics piece, which has the big pharma companies screaming angrily.

The intermediary liability protections for tech also have lots of people complaining — including from both parties, but it’s all ridiculous. First of all, most of the people freaking out about this are the very same people who originally loved the idea of sneaking ideas like longer copyright terms and anti-circumvention provisions into trade deals, and are now mad that internet companies are realizing that other ideas, that are better for the internet and free speech, can be put into those deals as well.

Perhaps more importantly — as you hear more people whining about the inclusion of intermediary liability protections in USMCA — is that these protections aren’t even that strong, and Canada is already talking about ways to put more liability on internet services, despite what it’s about to agree to in the USMCA. In other words, while it’s good to see this language in the agreement, which will, at the margins, help keep the internet more open for free speech, the actual impact of this provision may be limited by creative efforts to write around the agreement — and now just becomes a stick for those pushing the whole “techlash” narrative to beat against a wall.

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