Significant Concerns About The New NAFTA Agreement's Impact On Innovation And The Internet

from the it's-bad dept

Earlier this week, we wrote about how the USTR itself appeared to be totally confused about its own NAFTA-replacement agreement with Mexico in the "Intellectual Property" section, in that it was reporting that the agreement included copyright in some works for "75 years" in places and "life + 75 years" in other places, and acted as though they were the same thing. The USTR seemed legitimately confused over this issue, which did not give people much confidence that it knew what it was doing in these negotiations on the intellectual property questions. However, since that issue appeared to be one of pure confusion, which should be easily fixed in the final text, we should put our attention more towards the actual problems with what the USTR appears to be doing here.

We don't yet have the full text -- though that should be available soon -- but from the USTR's fact sheet there are many reasons to be concerned that this agreement is a massive handout to Hollywood and patent trolls, and against innovation. Let's dig in:

Enforcement authorities must be able to stop goods that are suspected of being pirated or counterfeited at all areas of entry and exit.

This seems to be an attempt to bring back some of the features of the long-derided and eventually discarded ACTA agreement, which had all sorts of problems. A big part of ACTA was ramping up enforcement by ICE in seizing "infringing" goods. Of course, this is the same ICE who wrongly seized blogs and search engines they eventually had to return years later because there was no actual evidence they were infringing. Incredibly, it announced these evidence free seizures from Disney's headquarters, making it quite clear whose interests they were representing. There are lots of other concerns with ICE these days, but the idea that it should have more power to "enforce" copyright and trademark law is problematic.

Enforcement against counterfeits and piracy occurring on a commercial scale.

This is another one that was in ACTA. The issue was that in ACTA, they greatly expanded the definition of what counted as "commercial scale" such that it would certainly catch a ton of individuals who may have been infringing at a much smaller scale than anyone would actually consider "commercial."

Meaningful criminal procedures and penalties for camcording of movies.

This is another bogeyman that the MPAA has been overreacting to for over a decade. Despite the fact that the majority of infringing films these days leak out of the Hollywood studios and their partners directly, there are still some that are cammed in a theater. It's not a huge deal, as the quality of those tend not to be that good anyway. But, the MPAA acts as if this is a total affront to America and apple pie. And, again this leads to ridiculous situations like ICE being called in by the MPAA to interrogate a guy who happened to wear his Google Glass device into a movie theater. Really. There is no need to increase penalties here and it won't noticeably impact piracy in any way. It may lead to more felony charges for kids filming their friends at a movie theater birthday party, though.

Establish a notice-and-takedown system for copyright safe harbors for Internet service providers (ISPs) that provides protection for IP and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.

The "consistent with US law" part seems good -- but there is a very notable absence here. The fact sheet says absolutely nothing about user rights, such as fair use. Indeed it was a big deal six years ago when the USTR for the very first time agreed to include "fair use" and other user rights in a trade agreement (even if we had some concerns about the implementation). But, prior to that, all other agreements that included US style copyright requirements on other countries only exported the enforcement side, with none of the user rights. That was a huge problem, and it appears it is back again.

During meetings with the USTR over the past few days, multiple people have asked whether or not the agreement includes fair use and other rights along with the enforcement language, and the USTR has literally ignored the question multiple times. That's extremely worrisome.

Require full national treatment for copyright and related rights so United States creators are not deprived of rights in foreign markets that domestic creators receive.

This is a backdoor favor to the recording industry, which has spent years aggressively pushing for a performance rights bill, that would make radio and internet streaming sites pay even more to the labels. Other countries do have this, but many of those other countries then withhold that money from US artists since the US doesn't have such a law. The fact that the US recording industry remains so successful and the envy of the world certainly suggests that such a law is not necessary to incentivize the creation of music, but nonetheless it is still a key plank that the industry has been asking for.

This sentence in the fact sheet certainly suggests that it will be used to pressure Congress into passing a law to "harmonize" US law with Mexico (and Canada if they join in).

Provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents.

Include strong protection for pharmaceutical and agricultural innovators.

It's unclear what this would mean in practice, as we already have this, so I worry that there's something nefarious snuck into the language that would prevent other fixes that Congress has opposed to limit the damage of patent trolls and bad patents.

All in all, from what the USTR has revealed, this appears to be a massive handout to a few industries: the legacy ones which have been failing to innovate lately, at the expense of the public and the industries that have continued to innovate. We'll have the full text soon, but it's not looking good. For all of the promises of Donald Trump as the ultimate dealmaker who would drain the swamp, this looks like an extra swampy handout to some giant industries.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Acker Demical, 29 Aug 2018 @ 1:55pm

    NOT a "massive handout" but I hope MINOR protections.

    the legacy [industries] which have been failing to innovate lately,

    I'll guess from rest that you mean those actually PRODUCTIVE in terms of making PRODUCTS, not "services", and of course you hold that "innovation" is for the latter to come up with new ways to grift off the producers without adding any value.

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

    • icon
      Stephen T. Stone (profile), 29 Aug 2018 @ 2:01pm

      I have seen all of those words before, but your particular combination of them gave me a headache.

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

    • icon
      James Burkhardt (profile), 29 Aug 2018 @ 2:36pm

      Re: NOT a "massive handout" but I hope MINOR protections.

      So, a producer in this case is producing content, which can be both be a product in and of itself (Traditional sales mediums) or Content for a product (Subscription or ad-supported services). And in that fashion, the producers of content may or may not be making products. In fact they refused to do make products content consumers wanted (see lack of innovation argument). That drove down the value of content not available on better delivery platforms and drove up the value of content on those same platforms.

      But I could also argue that they failed to innovate on the content as well, not just business model, which has driven down the value of that content. See the seeming stagnation of music from the perspective of dynamics and range of tone and timbre, also loudness wars.

      I can say that I recently had to look hard to find one of my favorite older cartoons (Transformers: Beast Machines) that didn't go over well and so is difficult to find. $20 for the show on an inconvenient DVD format was a questionable value, but I paid it only because I could extract the episodes and put them on my Plex server for viewing convince. If I could have gotten it digitally, I easily would have paid $30-$40 easy for that content, over a decade after its release. A third party service could have added significant value to my purchase. So yes, innovators in content delivery services can provide value to the content itself.

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

    • icon
      Rapnel (profile), 29 Aug 2018 @ 4:59pm

      Re: NOT a "massive handout" but I hope MINOR protections.

      Yeah ya fuckwad idiot, services. Those things "producers" actually need and will forever continuously strive to own, manipulate and destroy because "wah" they're playing our "things". You're a massive disgusting cunt of an insult to creators past, present and future. Just another controlling entitled idiot bootlicker that can't even bite its own dick.

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

  • icon
    That Anonymous Coward (profile), 29 Aug 2018 @ 2:03pm

    It would be nice if someone ran the numbers to see how much 'protecting' copyright holders is costing society.

    Their costs are shifted to everyone else to bear.

    Our rights are ignored b/c it MIGHT be used to hurt a copyright holder.

    Technology is crippled/held back b/c someone can imagine a way it might hurt them, withotu actual evidence b/c the tech isn't ever given a chance. (See also VCR's: Will destroy Hollywood... note we didn't get that lucky).

    The facts show the way to cut back on piracy is making the content available easily. There is content customers are offering money for but the copyright cartels have made it impossible for them to sell the content & are shocked people find other means to obtain it.

    We don't need more protectionism for copyright, we need to demand they accept reality & learn to adapt.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 29 Aug 2018 @ 4:25pm

      Re:

      You have no idea how douchey you sound, do you? Like you literally have no clue.

      What's wrong, did some musician fuck a girl you had a crush on? Tease you for being a dork? Therapy might be helpful.

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

      • identicon
        Anonymous Coward, 29 Aug 2018 @ 4:36pm

        Re: Re:

        You need a new hobby. Flagged.

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

      • icon
        Thad (profile), 29 Aug 2018 @ 5:05pm

        Re: Re:

        You have no idea how douchey you sound, do you? Like you literally have no clue.

        And you have a very poor sense of irony.

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

      • icon
        That Anonymous Coward (profile), 30 Aug 2018 @ 1:10am

        Re: Re:

        "did some musician fuck a girl you had a crush on?"

        Why hello new shill visiting us here at TechDirt, next time you might want to do 3 seconds of due diligence, as I often point out & any regular can tell you...
        I'm the gay one.

        Would you like to refute anything I said, or is the best you can offer trying to hurt my feelz?

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

      • identicon
        Anonymous Coward, 30 Aug 2018 @ 2:58am

        Re: Re:

        Do all you shills belong to the projectionists union?

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

  • identicon
    Anonymous Coward, 29 Aug 2018 @ 2:07pm

    Enforcement authorities must be able to stop goods that are suspected of being pirated or counterfeited at all areas of entry and exit.

    Keep in mind that unless stated otherwise, they're going to count international telecommunications as "entry" and "exit".

    It may lead to more felony charges for kids filming their friends at a movie theater birthday party, though.

    Yep, fight against the lowest form of ripping by making the theater a more hostile place for would-be attendees (bag searches, phone-related freakouts, etc.). That'll make people want to go in person.

    It's unclear what this would mean in practice, as we already have this, so I worry that there's something nefarious snuck into the language that would prevent other fixes that Congress has opposed to limit the damage of patent trolls and bad patents.

    There must be, because Canadians have drug companies and they're not exactly shutting down due to lack of profit. If we want to export one country's rules to another, it should go the other way (as many Americans buying drugs online can attest to).

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

  • identicon
    Anonymous Coward, 29 Aug 2018 @ 2:12pm

    Where does the trade rep say “life + 75”? If there it is certainly well hidden.

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

    • identicon
      Anonymous Coward, 29 Aug 2018 @ 2:16pm

      Re:

      The fact sheet says:

      Set a minimum standard of 75 years of copyright term for sound recordings and other works calculated by date of publication, and life plus 70 years for works calculated based on the life of the author.

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

      • identicon
        Anonymous Coward, 29 Aug 2018 @ 2:34pm

        Re: Re:

        How many works are still making an income a few years after publication, never mind 70 years after the authors death. Also, the few works that have an extremely long life, like the works of Homer, make money for publishers despite being out of copyright.

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

        • identicon
          Anonymous Coward, 29 Aug 2018 @ 2:51pm

          Re: Re: Re:

          Also, the few works that have an extremely long life, like the works of Homer, make money for publishers despite being out of copyright.

          Not for the original publisher. No wonder Homer's been laying idle for millenia and all the ancient Greek publishers have gone bust.

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

        • identicon
          John Smith, 29 Aug 2018 @ 5:36pm

          Re: Re: Re:

          Ask the women who make adult-entertainment clips. Some sell videos they made ten years ago. I've had creations (not adult videos since I don't look good enough) that have made money for many years and would have made a lot more with stronger protection. I've also saved money because of the lack of protection and "implied license" (a form of opt-out copyright protection whereby if the holder doesn't speak up permission is presumed).

          I'd rather see very strong copyright protection, with much more minor penalties for single downloading. Statutory damages should apply to plagiarism, not downloading, which is a reltail or an ASCP violation at most.

          The lack of innovation in music is a direct consequence of the creators and professionals who help them create not getting paid. Right now it pays to make YouTube videos more than almost any other form of media, except for the lucky few who tap into huge distribution networks with fans loyal enough to pay without thinking.

          Some speculated that Norah Jones won her Emmy years back because her audience was older, nad less likely to know how to steal her work.

          YOu can tell a creator that if they don't adapt they'll lose money, but using that to justify stealing isn't legitimate.

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

          • identicon
            Anonymous Coward, 29 Aug 2018 @ 6:29pm

            Re: Re: Re: Re:

            "The lack of innovation in music is a direct consequence of the creators and professionals who help them create not getting paid. Right now it pays to make YouTube videos more than almost any other form of media, except for the lucky few who tap into huge distribution networks with fans loyal enough to pay without thinking."

            This entire paragraph is simply from another reality.

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

          • identicon
            Anonymous Coward, 29 Aug 2018 @ 7:11pm

            Re: Re: Re: Re:

            Ask the women who make adult-entertainment clips. Some sell videos they made ten years ago

            I like how as the years pass, the copyright fans are increasingly looking toward the porn industry to garner support. Certainly makes their kid-friendly approach to IP education have rather... suggestive implications. Then again, as MyNameHere said some time back, a lot of music revolves around sex - the same music which the RIAA has been begging kids to buy, so it's not like the problem wasn't endemic to begin with.

            I've had creations (not adult videos since I don't look good enough) that have made money for many years

            Not more of this "easily proven" garbage. Look, nobody is falling for this shit. If you were that prominent you'd have proven it by now, not this he-said-she-said rubbish we have to take your word for.

            I'd rather see very strong copyright protection, with much more minor penalties for single downloading. Statutory damages should apply to plagiarism, not downloading

            Yeah... no. You've already made it very clear that you're willing to muddle the lines between plagiarism and copyright infringement. The latter being completely separate from the former. And you'd already insisted that statutory damages are there for deterrence regardless of whether it's up or downloading.

            Right now it pays to make YouTube videos more than almost any other form of media

            And it pays more than being a full-time circus clown. Your point?

            Some speculated that Norah Jones won her Emmy years back because her audience was older, nad less likely to know how to steal her work.

            Lack of citation aside, grandparents regularly share YouTube videos and ask their younger relatives how to use torrents. So good luck with that.

            YOu can tell a creator that if they don't adapt they'll lose money, but using that to justify stealing isn't legitimate.

            You know what this statement justifies, along with your typical paragraph of "citation needed" claptrap? Me not spending a single damn dime on entertainment and simply doing without.

            Or are you going to demand statutory penalties for that too?

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

  • identicon
    Anonymous Coward, 29 Aug 2018 @ 7:30pm

    "Enforcement against counterfeits and piracy occurring on a commercial scale."

    What they define as "commercial scale" will be most interesting cause according to the MPAA's comments from June via TorrentFreak they take issue that criminal sanctions are available only for cases where said infringement is for profit.

    Basically they want to be able to levy criminal charges against any online infringement.

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

  • icon
    That One Guy (profile), 29 Aug 2018 @ 8:09pm

    When silence speaks volumes

    During meetings with the USTR over the past few days, multiple people have asked whether or not the agreement includes fair use and other rights along with the enforcement language, and the USTR has literally ignored the question multiple times. That's extremely worrisome.

    Worrisome, but more to the point telling, to the point that they might as well have actually answered.

    By refusing to even acknowledge the question the answer is very clearly 'No, fair use is not in the agreement, nor are concerns for the rights of anyone but large companies/industries.'

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

  • identicon
    Anonymous Coward, 29 Aug 2018 @ 10:38pm

    A generation, twenty years. Anything beyond that is greed.

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

  • identicon
    Anonymous Coward, 30 Aug 2018 @ 6:59am

    Another stumble by the present administration.

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

    • identicon
      Anonymous Coward, 30 Aug 2018 @ 8:50am

      Re:

      Stumble? I keep telling folks that politicians are not stupid... they know exactly what the fuck they are doing.

      Every last fucking letter on those pages are very intentional.

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

  • identicon
    Châu, 31 Aug 2018 @ 3:54pm

    They Forget IP Tax!

    If government employee will waste time for help private company, I think need private company need pay extra tax for government employee's time. Private company create content (problem) and private company not want share, they can pay tax for fix their problem.

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


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