TPP Also Locks In Broken Anti-Circumvention Rules That Destroy Your Freedoms

from the sad-to-see dept

We already wrote about how New Zealand has released some of the details about the finalized TPP agreement before the official text is released. The one we discussed is forcing participants into a "life plus 70 years" copyright term, even as the US had been exploring going back towards a life plus 50 regime like much of the rest of the world. That won't be possible any more.

Another issue revealed in the New Zealand announcement is that the TPP will similarly lock in an anti-circumvention clause. In the US, we have a really problematic anti-circumvention law in Section 1201 of the DMCA, which says it's against the law to circumvent "technological protection measures" even if for reasons that are perfectly legal and non-infringing. This has created a huge mess that threatens innovation in all sorts of problematic ways. It takes away our freedom to tinker with devices that we own. It also makes it illegal to do things that pretty much everyone agrees should be perfectly legal.

Earlier this year, some in Congress introduced a bill to fix Section 1201. However, that may not be possible after the TPP is agreed to. Again, the details matter, but here's what New Zealand has to say about this issue:
New Zealand has, however, agreed to extend its existing laws on technological protection measures (TPMs), which control access to digital content like music, TV programmes, films and software. Circumventing TPMs will be prohibited but exceptions will apply to ensure that people can still circumvent them where there is no copyright issue (for example, playing region-coded DVDs purchased from overseas) or where there is an existing copyright exception (for example, converting a book to braille).
So, yes, it appears there will be certain exceptions allowed, but again that gets the equation entirely backwards. At best, circumvention should be considered legal as the default, and the problem should only come in if the circumvention was done for the purpose of actual infringement. Starting from the position of "no circumvention" and then backdooring in "exceptions" massively hinders innovation by requiring permission before certain innovations are allowed.

Given how important this kind of innovation has been for the tech sector, it's disappointing in the extreme that the USTR has decided to lock this in and block all kinds of important innovations from moving forward. Once again, the USTR seems focused on protecting legacy industries while hamstringing innovative industries.

Filed Under: 1201, anti-circumvention, dmca, dmca 1201, freedom to tinker, new zealand, tpp, ustr


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  • identicon
    Shmerl, 7 Oct 2015 @ 12:04pm

    USTR is simply the DRM lobby frontend

    The question is, who elected USTR and why do they have such power to draft agreements which shape laws? It's like having another legislative branch, except one with no oversight, which is obviously prone to corruption.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 2:04pm

      Re: USTR is simply the DRM lobby frontend

      And not only that, they've been strong-arming all the other TRs in the world to their bidding. So they are technically the most powerful people in the world. Maybe we should at least give them and their actions a bit more visibility?

      On another note: I need to take a closer look at the DMCA anti-circumvention clause. Seems to me that it should be possible for me to use that text to my advantage, creating a system where anyone attempting to foist DRM on me is circumventing my technological protection mechanisms by blocking access to my data.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Oct 2015 @ 2:18pm

        Re: Re: USTR is simply the DRM lobby frontend

        Sounds great. Now all you have to do is buy enough government to enforce your plan. Hope you've got a few billion dollars laying around.

        reply to this | link to this | view in chronology ]

    • identicon
      Whoever, 7 Oct 2015 @ 2:17pm

      Re: USTR is simply the DRM lobby frontend

      The question is, who elected USTR

      The USTR isn't elected, but appointed. The USTR represents the executive branch -- in other words, what the USTR has put into the TPP is Obama's policy.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 3:25pm

      Re: USTR is simply the DRM lobby frontend

      Congress decided to give them fast-track authority. Congress does, however, still have to approve it for it to take effect. Most (but not all) Republicans tend to like this sort of thing, and Democrats will be pressured by Obama to support it to make up for any Republicans that don't.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 4:15pm

      Re: USTR is simply the DRM lobby frontend

      1. Guys with guns looking at us.

      "their friends in Hollywood and the entertainment industries never had to do a fucking thing again to earn a living"
      2.This is why I'll never watch any hollywood movies or terrible generic law and order/sitcom/tv-cable dramas ever again, no tv broadcasts, no theater, no dvds, no netflix. It helps I already hate 99% of the fuckers who make the crap.

      3.Question: When are we fucked? I keep hearing different info: tpp will be in effect this year, february 2016, mid-late 2016 or even 2017-2018. Which is it, please explain to me.

      reply to this | link to this | view in chronology ]

  • icon
    NeghVar (profile), 7 Oct 2015 @ 12:12pm

    supreme court

    If if does pass, can the SCOTUS challenge its legitimacy, constitutionality. This partnership is being used to write laws which only congress is permitted to create and then the President signs or vetoes. The TPP is technically illegal in numerous ways.

    reply to this | link to this | view in chronology ]

    • icon
      NeghVar (profile), 7 Oct 2015 @ 12:29pm

      Re: supreme court

      Or does the TPP have the power to override SCOTUS? Can a country, via investor-state dispute settlement (ISDS), override a SCOTUS ruling?

      reply to this | link to this | view in chronology ]

      • identicon
        AJ, 7 Oct 2015 @ 12:32pm

        Re: Re: supreme court

        God help us if the answer is yes.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Oct 2015 @ 1:39pm

          Re: Re: Re: supreme court

          If I understood it correctly then, yes. Because the parties involved use TTP to argue their case and not national law. And since all nations agreed to TTP you can't argue that it doesn't count.
          In case you are familiar with EU law then this is more or less the same. The EU can make a law and the countries have to follow it or the other way around they aren't allowed to make a law because it is against EU law.

          reply to this | link to this | view in chronology ]

        • identicon
          Gordon, 8 Oct 2015 @ 7:05am

          Re: Re: Re: supreme court

          The answer is yes. This is the framework of a global fascist government meant to collectivize all of us under one corporate/banking jackboot and destroy the nation state.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Oct 2015 @ 12:41pm

        Re: Re: supreme court


        Wrong question; the problem is that a company can either get the law changed, or get compensation for lost and expected future profits via ISDS. They in effect put companies above countries.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Oct 2015 @ 3:37pm

          Re: Re: Re: supreme court

          It's also the wrong question because it assumes the SCOTUS and other representatives aren't bought. If they are bought they can then pretend that they can't do anything about a potential problem because they need to meet their international obligations. That way they can pawn the blame for their unwillingness to meet their public responsibilities (due to really being bought) onto something allegedly outside of their control.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Oct 2015 @ 1:15pm

        Re: Re: supreme court

        SCOTUS can always TRY to override, but even SCOTUS can be beaten if the Executive and Legislative branches fights against the ruling. Any 2 branches can force the other branch into submission.

        The better question is "Would" SCOTUS attempt to rule on it? You might find that SCOTUS own track record on the constitution is pretty fucking weak as they have already dissembled the meaning of what "reasonable" is in regards to the 4th amendment. They have already successfully rewritten the English language to mean something it does not because they simply have that power, and no one fights them on it.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 1:02pm

      Re: supreme court

      1) If this is a treaty then Congress must ratify it for it to have any legal standing in the US.

      2) Even if it does have legal standing in the US it may be possible for a court to rule against an individual provision in an individual case so long as the activity therein does not cross US borders and does not involve non-US entities. The analogy here is the various mandatory sentencing laws the US has enacted the past few decades. AFAIK the concept and doctrine of mandatory sentencing has never been declared unconstitutional. But there have been individual cases where the sentence imposed under a mandatory sentencing law has been declared "cruel & unusual" and the case remanded for resentencing.

      In case you're wondering how this treaty could apply to a completely internal activity: any country that ratifies this will find a few of their internal laws inadequate or even non-compliant, so they will have to change their laws. As a "bloody yank" there are a few laws I'd like to see changed, but this way is not how to do it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 2:30pm

      Re: supreme court

      Dunno. Is SCOTUS even allowed to see the text?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Oct 2015 @ 12:39pm

    we must fight this deal with everything we have!

    don't give up! help us fight this!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Oct 2015 @ 12:42pm

    Someone can correct this if I'm wrong, but I *believe* the Supreme Court could rule that, say, a specific provision of the TPP violates the first Amendment.

    That provision would then be inapplicable in the US as unconstitutional.

    With John Roberts running the court right now, I will not opine about how probable this outcome is.

    I am just saying that I believe it is technically possible.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 1:18pm

      Re:

      You are not wrong, the 2nd problem you mentioned is the problem. A lot of justices on SCOTUS really don't give a shit about you when their corporate masters come calling, party be damned.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Oct 2015 @ 5:44am

      Re:

      If any government rules against the FTA
      they must pay to the affected corporation
      compensations for lost and expected future profits
      FOREVER,
      or until the rule is changed in favor of the affected corporation.

      reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 7 Oct 2015 @ 12:45pm

    Just no...

    "At best, circumvention should be considered legal as the default, and the problem should only come in if the circumvention was done for the purpose of actual infringement."
    No, not even that.
    In that case, you sue for infringement, not "circumvention of protection in the purpose of infringement", and definitely not "circumvention of protection - period".

    This has been the worst case of law-writing by far in the domain of copyright, with side-effects in domains normally unrelated to copyright.

    You do not charge someone with specifically "breaking a lock" when you already charge him with "breaking and entering". You do not charge someone with "using a gun to kill someone" when you charge him with "murder". In general, you don't sue someone for "committing a crime" and "use a specific method to commit said crime".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Oct 2015 @ 1:08pm

    and which industries were the start of this shit? and which country's politicians fell over themselves, hands out to receives the rewards, to ensure their friends in Hollywood and the entertainment industries never had to do a fucking thing again to earn a living? good ol' USA! thanks so much for screwing the world even when it's been paid for!!

    reply to this | link to this | view in chronology ]

  • icon
    Doug (profile), 7 Oct 2015 @ 1:31pm

    My front door

    Anti-circumvention is like saying it is illegal for me to break my own front door (say, if I locked my keys in the house). It may be illegal for me to break down someone else's door, but I can kick in my own door if I want. Same should go for my digital goods.

    reply to this | link to this | view in chronology ]

  • icon
    Doug (profile), 7 Oct 2015 @ 1:40pm

    Politicians are accountable to industry

    The fundamental problem here is that politicians are not accountable to the voters. They are accountable to industry.
    That's why so much of the TPP protects legacy players in user-unfriendly ways.

    There may be a short-term solution in the form of public outrage and such. If so, count me in. The long-term solution is to find a way to get politicians to be accountable to voters again. I think it is real campaign finance reform. But whatever, if you care about things like the TPP (or any other similar issue), what you should really care about first is fixing campaign finance. You can't get politicians to fix anything in favor of voters until they feel accountable to the voters.

    reply to this | link to this | view in chronology ]

  • icon
    Blackfiredragon13 (profile), 7 Oct 2015 @ 4:08pm

    What's next?

    Is it going to turn out fair use is illegal? Because seriously, WTF.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Oct 2015 @ 4:18pm

      Re: What's next?

      basically, bye brainscratch, teamfourstar, roahmmythril, littlekuriboh and others. I assume chuggaaconroy, pewdiepie and game grumps are popular enough that youtube will protect them.

      reply to this | link to this | view in chronology ]

  • icon
    Charles Roth (profile), 7 Oct 2015 @ 5:58pm

    TPP and greenvelope.com

    I just received a "mail.whitehouse.gov" email (which I usually appreciate), from Sam Franklin, apparently the founder of greenvelope.com, extolling the virtues of the TPP.

    I immediately wrote back to the only direct contact I could find for him (info@greenvelope.com), calling "foul" on his white-wash.

    I encourage others to do the same. If I actually get a better address for him, I will post it here.

    reply to this | link to this | view in chronology ]

  • icon
    Charles Roth (profile), 7 Oct 2015 @ 6:01pm

    TPP and greenvelope.com

    Hmm, sam@greenvelope.com didn't bounce. Might try that.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Oct 2015 @ 10:13pm

    What does this have to do with "trade"?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Oct 2015 @ 10:47pm

      Re:

      Oh but it has everything to do with trade. You see, how it works is the negotiators trade away the public's rights, and in exchange, they get large 'donations' and lucrative 'job offers'.

      So you see, there's plenty of trade going on.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Oct 2015 @ 6:53am

    When the current Internet is finally destroyed, even Techdirt won't escape.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Oct 2015 @ 7:06am

    People have far too much respect for the legal industry. Simply ignore those laws that make no sense.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Oct 2015 @ 9:40am

    How about 50 years total for copyright?

    Let's go life, plus a term not to exceed a total of 50 years. I could (grudgingly) live with that. It's better than what we have now. Actually, I'd be okay with the US copyright that way, even if the rest of the world goes to life plus 70. Unless we pass the TPP, their copyright terms wouldn't affect us.

    reply to this | link to this | view in chronology ]

  • identicon
    Hank, 8 Oct 2015 @ 10:16am

    TPP

    TPP, yet another violation of our rights. The gov’t constantly violates our rights.
    They violate the 1st Amendment by banning books like “America Deceived III”.
    They violate the 2nd Amendment by banning guns.
    Both parties are lawless.
    Last link of “America Deceived III” before it is completely banned:
    http://www.amazon.com/America-Deceived-III-E-Blayre-ebook/dp/B016BV09MK/

    End the TPP

    reply to this | link to this | view in chronology ]


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