Copyright

by Mike Masnick


Filed Under:
changes, copyright, legal scrub, tpp, ustr



Quiet 'Legal Scrub' Of TPP Makes Massive Change To Penalties For Copyright Infringement Without Telling Anyone

from the sneaky-bastards dept

In early November, the "final text" of the TPP was finally released. The USTR even posted the thing to Medium, pretending that after years of secrecy it was now being transparent. As we've been told time and time again, the final document is not open to any changes. The only thing left to do was a "legal scrub" which is a final process in which the lawyers comb through the document word by word, basically to make sure there are no typos or out-and-out errors. The legal scrub is not when any substantial changes can be made.

And yet... the eagle eyed Jeremy Malcolm over at EFF has spotted an apparent change in the "legal scrub" of the Intellectual Property chapter that will massively expand criminal penalties for copyright infringing activities that have no impact on the actual market. Technically, the scrub just changed the word "paragraph" to "subparagraph" in the following sentence:
With regard to copyright and related rights piracy provided for under paragraph 1, a Party may limit application of this subparagraph to the cases in which there is an impact on the right holder’s ability to exploit the work, performance or phonogram in the market.
But the impact is massive. As Malcolm explains:
What does this surreptitious change from “paragraph” to “subparagraph” mean? Well, in its original form the provision exempted a country from making available any of the criminal procedures and penalties listed above, except in circumstances where there was an impact on the copyright holder's ability to exploit their work in the market.

In its revised form, the only criminal provision that a country is exempted from applying in those circumstances is the one to which the footnote is attached—namely, the ex officio action provision. Which means, under this amendment, all of the other criminal procedures and penalties must be available even if the infringement has absolutely no impact on the right holder's ability to exploit their work in the market. The only enforcement provision that countries have the flexibility to withhold in such cases is the authority of state officials to take legal action into their own hands.
He further notes that it's obviously a significant change that could end up criminalizing plenty of activity that is infringing, but which is totally not for profit and which may have plenty of legitimate uses. There's been a long push by the legacy copyright players to use the TPP to ratchet up criminal penalties, and many of the worst proposals were stripped from the agreement -- but with this "legal scrub" things have moved massively towards criminalization. And that's a problem.

As Malcolm notes, the USTR's "official" copy of the TPP still shows the old version, meaning that any debate about the provisions is likely to ignore this change -- but the truly "official" version, hosted by New Zealand does show the change.

Malcolm is wondering how this could have happened:
Since the change highlighted above is unarguably a substantive change, the only basis for the change to be made during legal scrubbing would be if it were an error. But is it an error?

We don't know for sure—though EFF has contacted the USTR for clarification, and we will update this post if we receive an answer. But logically, the original text doesn't seem to have been an error, because there seems to be no rational basis why countries should be allowed to limit the availability of ex officio action, but not to similarly limit the availability of the other criminal remedies.

Think about it. What sense is there in sending someone to jail for an infringement that causes no harm to the copyright holder, whether they complain about it or not? And why should it matter that the copyright holder complains about something that didn't affect them anyway? Surely, if the copyright holder suffers no harm, then a country ought to be able to suspend the whole gamut of criminal procedures and penalties, not only the availability of ex officio action.

This is no error—or if it is, then the parties were only in error in agreeing to a proposal that was complete nonsense to begin with. But most likely, this is an underhanded attempt to renegotiate the Trans-Pacific Partnership before its ink is even dry.
It is quite disturbing, especially given the secret nature of the negotiations, to have such a major change slipped in secretly after the "final" version is supposedly done.

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  • identicon
    Anonymous Coward, 18 Feb 2016 @ 9:34am

    The transparency is deafening

    I'm glad that we live in the most free country in the world. Please not that Free is a trademarked term that no longer means what we thought it did. I like how we are allowing private companies to outright dictate legal terms and punishments now as well. Let Freedom Ring.

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

  • identicon
    David, 18 Feb 2016 @ 9:36am

    "Slipped in"?

    It is quite disturbing, especially given the secret nature of the negotiations, to have such a major change slipped in secretly after the "final" version is supposedly done.

    I am pretty sure that the original wording was explicitly chosen in order to prepare for inconspicuously submarining the wording after it has been "finalized". There are probably a few other such things, stuff where a judiciously added or removed comma completely subverts a text passage.

    The whole thing is a superficially masked criminal power grab from corporate crime syndicates with the help of bribed politicians.

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

    • identicon
      Anonymous Coward, 18 Feb 2016 @ 9:41am

      Re: "Slipped in"?

      Ah, yet more culture theft by imaginary people, indeed.

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

      • identicon
        David, 18 Feb 2016 @ 1:22pm

        Re: Re: "Slipped in"?

        Well, the one thing Snowden should have taught us is that conspiracy theories are doomed to fall short of reality and that the government will lie to the people right up to the moment they are exposed and they will continue lying just because they can until people give up and forget.

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 9:45am

    We need to move our country out further west to avoid these strangling regulations that inhibit our ability to create.
    Surely Hollywood can't object to this.

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

  • icon
    Ninja (profile), 18 Feb 2016 @ 9:59am

    I have a solution. Since we know by now that everybody infringes copyright almost daily at some point just build walls around the country and call it 'jail'. Easier, no?

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

  • identicon
    AJ, 18 Feb 2016 @ 10:21am

    Nice work Jeremy Malcolm! At least SOMEONE is looking out for the interests of the people. Instead of making campaign contributions to these crooks that are trying so hard to destroy the very freedoms I elected them to protect, I think I'll send that money over to the EFF in the hopes that they will continue to watch out for us.

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 10:28am

    The conspiracy enthusiast in me wonders about a "midnight revision" ala Mitch Glazier.

    The paranoid conspiracy enthusiast in me wonders if the entire TPP was purposely written such that the meaning of several critical sections could be changed with the "cleanup" of single words.

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

    • identicon
      shyster, 18 Feb 2016 @ 12:07pm

      Re: lawyers

      They are some shrewd, snakey, sumbitches.

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

    • identicon
      David, 18 Feb 2016 @ 1:16pm

      Re:

      Well, there is a reason that parliament members are only allowed to view TPP in tightly controlled reading rooms and are not allowed to take notes or photographs or anything.

      Even if they have photographic memory, they will not be able to convincingly testify that such changes were slipped in after ratification.

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

    • identicon
      Anonymous Coward, 18 Feb 2016 @ 4:45pm

      Re:

      Of course, it's not like they would ever 'clean it up' in a way that favors the public interest.

      Oops ... that's a bad pro-corporate anti-consumer clause that was made so bad by mistake. Lets just fix it by adding a comma here.

      That will never happen.

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 10:31am

    Never happened before...

    It's not like anyone has tried to slip a word or two into legislation that impacts copyright before this, now is it?

    I mean what incentive would lawyers or legislators have to do this kind of thing (other than the promise of future payments or jobs from the **AA's)...

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 10:32am

    How long before we see some police state supporting measures thrown in I wonder

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 10:53am

    Copyright is becoming the instrument of tyranny, as if infringement is a criminal act, it does not require a rights holder complaint to initiate proceedings. Upset a government, and then try to prove that you have the rights to all the files on your devices.

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

    • identicon
      Anonymous Coward, 18 Feb 2016 @ 10:59am

      Re:

      You forgot that the government can now use any details it happens to discover while looking for terrorism for any legal reasons they wish.... Instant universal criminal charges starting at the millions for anyone with even a few MP3's that they can't prove they purchased.

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 11:24am

    It seems that regardless of all this, the media and the common people aren't really spreading the word about TPP and all its shortcomings and hidden agendas.

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

    • identicon
      Anonymous Coward, 18 Feb 2016 @ 11:44am

      Re:

      The media is part of the problem. Just look at the presidential election mess the media has gotten us into. The media has an agenda and it doesn't involve the public interest.

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

      • identicon
        any moose cow word, 18 Feb 2016 @ 2:28pm

        Re: Re:

        Agreed! When we allowed the media to be swallowed by mega corps, their agenda suddenly became aligned with their new masters. Yeah, who didn't see that coming...

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

  • icon
    Alien Rebel (profile), 18 Feb 2016 @ 1:45pm

    Creatures of the Night

    I can't help but think of the Hollywood creation stories that usually begin with something like, "before there was light, there was darkness" and go on about the demons, dark elves, goblins, or other creatures who wailed with the coming of light, and fled from it; and now desperately seek a return to the universe's original state of pristine darkness.

    Tell me all these trade reps, politicians, and corporate lawyers don't look upon light itself as the great corrupter.
    --

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

  • icon
    BentFranklin (profile), 18 Feb 2016 @ 2:25pm

    If these mistakes were random they would occur in both directions.

    Also, anyone who has read The Power Broker will understand that this sort of thing is quite deliberate and easy to do when it's your full-time job.

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

  • icon
    nasch (profile), 18 Feb 2016 @ 2:43pm

    He further notes that it's obviously a significant change that could end up criminalizing plenty of activity that is infringing, but which is totally not for profit and which may have plenty of legitimate uses.

    Just exactly the sort of thing the MAFIAA is desperate to regain control of. How interesting.

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

  • identicon
    Josh Taylor Author of The Interracial Progress, 18 Feb 2016 @ 5:01pm

    Changing "paragraph" to "subparagraph" doesn't expand criminal penalties

    The EFF is a pro-intellectual property theft, anti-copyright. The word "Commercial gain" doesn't expand to non-commercial use. What it means that websites like Redbubble that sells fan works are in legal trouble.

    Bunch of IP stealing 2 year old thinks it's the end of the world. Creators are not corporations, they are real people they have families and they are struggling to make a living with these IP thieves making fan works without paying compensation.

    Fair use is only for educational use of copyrighted material. Fan works are not fair use.

    Pay up or making something of your own. STOP STEALING PEOPLES ORIGINAL WORKS.

    Perhaps if you had children, you should sit with them and teach them drawing someone's fictional character is immorally stealing.

    Fan works that are made without permission in compensation hurts the creator.

    Complaining, protesting, and pleading to Congress will not TPP. I support the TPP and protection creators original works. If you can't afford paying the original creator of his work, then make something of your own.

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

  • identicon
    Anonymous Coward, 18 Feb 2016 @ 5:38pm

    And let the shilling begin.

    Before TPP: "Copyright is not the issue in TPP! Stop telling me that it is!"

    After TPP: "Why didn't you say something? If you had a problem with it you should have complained! Now you get to shut up about it! You wanted this, right?"

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

  • identicon
    Socrates, 19 Feb 2016 @ 11:48pm

    This fraud is committed repeatedly

    The EU treaty Sweden voted over differ from the "actual" agreement. Every single change harmed citizens. The mass media did not make a fuzz about it. This is the same mass media that pretended that the Pirate Party didn't exist in the last EU election, even though they were Sweden's fifth largest party in the EU parliament.

    In EU the text that the representatives were handed out and the text they vote over have differed in significant ways. Every single change harmed citizens. Poland averted such a change once, and publicly stated that they did not dare to repeat it. It were "intellectual property" additions to a text that were voted over in the agricultural and fishery department!

    TPP is even worse! TPP is anti democracy.

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

  • identicon
    David E.H. Smith, 20 Feb 2016 @ 2:54am

    Corporate ‘America’ or China; which is the less Obnoxious & Abusive Debt Creator & Liability Shifter?

    Is the TPP, TTIP, CETA, et al; Corporate ‘America’s’ Desperate ‘Extortion’; Join in U.S. Increasing Avaricious $17+ trillion Debts/Plunder to harmless taxpayers, or, Scorched Earth, Global Depression? Harmless U.S. taxpayers wait for the ‘shoe’ to drop as ‘Debts’ comes home to ‘Roost’?

    TPP, et al, base for future changes for Global Corporate Economy; your tax dollars to fund their enterprises & value of shares with No Corp. Liabilities & for their future considerations…

    Is ‘The Submission’ to The Supreme Court of Canada, et al, ‘unnecessarily’ delaying the TPP, CETA, et al?

    * What happened to new Canadian PM Trudeau’s (Corporate Canada East) promise to read, understand, share his understanding of TPP with consultation & questions from the taxpayers? Have Trudeau & Freeland read the TPP?

    * Should Politicians Have to Sully Their ‘Beliefs’ & Sales Pitches with ‘Sordid’ Facts that Come from Actually Reading & Understanding Global Treaties/’Arrangements’? Just the Facts; ‘We’, The People can Draw our Own Conclusions? Unless they’ve been paid via ‘future considerations’…
    2 Republican Senators Admit that They Have read the TPP.
    Congress/Parliaments; Deluded, or, Deluding; 'IGNORAMUS et IGNORABIMUS' (I do not know & I will Not Know)?
    ‘Quis custodiet ipsos custodies’? (Who Will Guard the Guards?)

    * TPP Costs harmless Taxpayers. Why not make Global Corporate Partners pay for ‘Privilege’ of joining TPP, et al & Corporations pay TPP Tribunal’s punitive penalties NOT the harmless taxpayers?

    * Do ‘We’ want ‘Good Corporate Citizens’, or, more of Corporate Global assocs. to Punish the harmless taxpayers & complete the Info Deprivation?

    * After New Zealand’s PM admitted that medicines will cost more, have the citizens of New Zealand & other TPP nations also noticed similar moves like Canadian Prime Minister Harper below? ‘To help pay for the harmless taxpayers ‘guilty transgressions’ against Global Corporations in Canada, Prime Minister Harper has recently cut the funding for health care by $36 billion dollars’. (please see article below)

    * There is a great deal more to the ‘Foreign’ Treaties/’Arrangements’ (TPP, CETA, TTIP, et al), than Tobacco Carve-out, Piggy-backing Autos & Parts from China to N. America &/or the EU via Japan, Gouging Drug Prices, Fish, IP, Privatizing Public Health Care, Dairy products & Pork;
    Why didn’t Someone Tell me that the Punitive Penalties of the TPP’s Tribunals would come off the Top of Signatory Governments’ Budgets & Not the Bottom after All other Expenditures? Corporations & Shareholders First and the lil’ guy gets left overs, if any.

    • Can Piggy-backing 80% of products from China, BRICS, et al, on to Canadian products exported to the U.S. really lower the taxes of Canadian citizens by 7% if Corporate Canada increases our Taxes (Global Corporate Tribunal Penalties) by 2- 12%+?

    • Canada’s Remorseless Prime Minister (Pay for The WAD Accord's
    Compensations, etc.) & Depriving Citizens, et al, of Due Diligence Info?
    • There is no melodramatic ‘Boom, or, Bust’ in the TPP & the other Global
    Corporate Treaties/’Arrangements; it’s just a huge Shift of Liabilities from
    Corporations to the harmless lil’ guy and taking Huge amounts from the lil’ guy via Punitive Penalties ‘giving’ it to Shareholders as ‘Profits’;
    Tort Reform on Steroids is Tort Abolishment.

    • How long have Global Corporate Associates been ‘Passing’ Legislation in
    Anticipation of Suing Once Ratified? ‘Trickle’ Up & Out Economics.

    • Corporate America, after its 2008 ‘Tactical Probe’ into Deregulation & Its Sub sequential Buying Short on its Global Recession, is Anxious for Its Legitimized & Globalized (TPP/TTIP/CETA) ‘Full Invasion’; HSBC’s money laundering, Enron’s insider trading, Chase Bank’s fraud, etc. Corporate Canada & its Traditional Big 3 Political Parties are desperate to increase its play time under the ‘skirts’ of Corporate U.S. in the International Glitter Game.

    • TPP, TTIP, CETA; Roll-back NAFTA, et al, Tribunal Penalties (ISDS) paid by Canadian lil’ guy; $125 M & $25 M legal fees to Reneging Corporate America. U.S. Pays ‘0’. ‘You Should have Known’; President Bush. Prohibit Future TPP, et al, ISDSs.

    • But, will the lil' guy get 6 years to read, consider, discuss & improve upon (with lawyers paid by Global Corporate Assocs.)?
    ***
    FULL Article, see; davidehsmith.wordpress.com

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

  • identicon
    Running, 20 Feb 2016 @ 10:13am

    Fonts

    Technically, most of the popular fonts (e.g. Arial, Times New Roman, Courier) are copyrighted. Example:

    https://kdp.amazon.com/community/thread.jspa?messageID=341685


    So anyone that types anything for distribution will pay substantial fines or go to jail if they do not use a free-for-commercial-use font or purchase the rights beforehand?

    Are the TPPeeps even in compliance?

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


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