While fracking is quite controversial, you'd think it shouldn't be controversial to want to get data and study the impact of fracking. After all, if there really isn't that much harm to it, then wouldn't that be good for the companies involved in fracking? And if, as some argue, fracking has seriously dangerous consequences, shouldn't we want to find that out as well? Of course, that assumes that companies involved in fracking are actually interested in doing what makes the most sense, rather than what makes the most money (I know, I know... stop laughing). And, here's where intellectual property issues are getting involved. A group of top intellectual property lawyers are pointing out that fracking companies are actively resisting a plan in Alaska to study the potential environmental, health and safety risks of fracking by arguing that it would violate their trade secrets. The professors point out that this is ridiculous:
[W]e remain concerned that the fracking industry has opposed the reasonable efforts of regulators throughout the country to have access to information about the exact chemical composition of fracking fluids. Such access should not only be uncontroversial, as trade secret information is shared with regulators at all levels of government and in a range of industries, but should be standard operating procedure for any regulatory entity charged with stewarding our nation’s natural resources. To deny regulators and the public access to such information is to prevent an evidenced-based analysis of the EHS impacts, if any, of fracking. It is, in sum, an effort to render the regulation of fracking as a game based upon guesswork and supposition rather than hard data. Moreover, we believe that the alleged competitive harm associated with the possible disclosure of these trade secrets (if they qualify, in fact, as trade secrets) to the public is at best overstated, and at worst reflects a skewed placement of commercial interests over the broad interests of the public in transparency, accountability and safe environmental management.
We don't talk that much about trade secret issues around here, usually covering other areas that are often lumped together in the "intellectual property" bucket. However, there's been an increasing push by some big industry players to increasingly rely on and expand trade secret law in all sorts of dangerous ways -- not to actually "protect trade secrets," but to avoid regulations (such as here) and to limit and stifle innovation and competition. Unfortunately, it seems likely that issues around trade secrets are quickly going to be nearly as important as the fights over things like copyright, patents and trademarks in terms of how they're abused by companies.
Free trade critics say a $250-million damage suit being pursued as a result of Quebec's moratorium on fracking is proof Canada needs to be careful in negotiating trade pacts around the world.
That's because TPP and TAFTA/TTIP, as well as Canada's bilateral treaty with Europe, CETA, all have ISDS clauses in them -- at least as far we know, given the obsessive secrecy that surrounds their negotiation. Here's the key issue in this latest case involving Canada:
Quebec has yet to decide whether fracking -- a process to inject fluid into the ground at a high pressure in order to fracture shale rocks to release natural gas inside -- can be conducted safely under the St. Lawrence.
"If a government is not even allowed to take a time out to study the impact without having to compensate a corporation, it puts a tremendous chill on a governments' ability to regulate in the public interest," said Ilana Solomon, director of the Sierra Club's trade program in Washington, D.C.
That is, the company concerned is trying to pressure Quebec to lift its moratorium before the latter has had a chance to evaluate all the scientific evidence on fracking, and come to a reasoned decision. That seems to be a typical effect where ISDS clauses are in operation: with the threat of huge claims hanging over them, governments often choose to capitulate and give companies what they want, rather than risk losing before the secretive tribunals that are used to adjudicate such ISDS cases.
The fear is that both TPP and TAFTA/TTIP will cast a chill over policy making around the Pacific and across the Atlantic, as businesses take advantage of the punitive damages available to bully governments into scrapping existing or proposed regulations in key consumer areas like food, health, safety and the environment.
The present case is noteworthy for the following fact:
Lone Pine is a Calgary-based firm and would not have standing as a foreign entity to sue Canada under NAFTA [North American Free Trade Agreement], but [Lone Pine company president] Granger said it can do so because it is registered in Delaware.
The justification for ISDS is that it is designed to protect companies when they make investments in a country that is not their own, and which therefore may not offer all the protections they enjoy at home -- although that's plainly absurd when trade agreements are between nations like Canada, the US and the EU. But here we see ISDS being turned into yet another way for a local company to overturn decisions it doesn't like -- a clear perversion of the original intent of such measures.
Most companies have a natural tendency to keep details of their activities secret -- the fear being that competitors might be able to exploit for commercial advantage the information that they obtain. But it may be in the public interest for some details to be released, even if this might prove inconvenient for the company concerned. That's the background to a letter sent by ten law professors, including Larry Lessig, to the Alaska Oil & Gas Conservation Commission, pointed out to us by infojustice.org.
We, the undersigned law professors who teach and write about intellectual property and trade secrets, write in support of the Alaska Oil and Gas Conservation Commission (AOGCC) proposed hydraulic fracturing regulations that would provide for the disclosure of information that might in other contexts be deemed trade secrets that cannot be disclosed to the public, under proposed regulation 20 ACC 25.283(h).
While businesses engaged in hydraulic fracturing may have legitimate trade secrets, the public's interest in assuring that hydraulic fracturing is managed in a manner that addresses all significant risks may legitimately outweigh commercial concerns. To impede debate and discussion of the use of public natural resources in the name of commercial secrecy is to put commercial interests above the prior and more general interest in careful stewardship of the environment.
Put simply, some trade secrets must give way when broader public interests are at issue.
The letter offer three reasons why they support the new regulations calling for disclosure of information that might otherwise be regarded as confidential.
First, it is a basic principle in a democracy that the public shall conduct informed debate and discussion of public matters.
Without the facts, it's not possible to have a meaningful debate about important issues, which undermines the entire premise of democratic decision making.
Second, effective environmental management requires broad disclosure of specific data that describes any discharges into the environment -- including chemical identity, volume and locations of each chemical discharged -- and data on health and ecological effects.
Without detailed information about chemicals that are being used it is hard, if not impossible, to deal with any problems they cause. The letter quotes the following disturbing example:
in 2009, Cathy Behr, a nurse in Colorado, fell seriously ill after treating a worker who had been injured in a chemical spill. Her doctors diagnosed chemical poisoning, but the manufacturer of the product she was exposed to would not disclose its full ingredients, because it considered them proprietary. Ms. Behr has partially recovered, but she continues to have respiratory problems.
That certainly seems a pretty extraordinary state of affairs -- that someone should be unable to find out what she was exposed to in the course of her work, purely because a company deems it confidential information, and she is thus forced to live with the uncertainty of what the long-term consequences might be.
Third, trade secrecy law should not be used as a means to impede public access to EHS [environmental, health and safety] information.
That's because trade secrecy law is purely about keeping secrets from competitors: it is not about limiting access for other reasons, notably those of public health and safety. As the letter points out:
Trade secret law does not and should not exempt a firm from participation in the larger legal system, including warning and harm
In a sense, trade secrecy law only applies insofar it does not conflict with broader principles of law, such as the preservation of public health or the environment. The present case involving fracking usefully highlights that contrast, but it is always present, even in less contentious areas.
In a rather troubling move, it appears that the leadership of the House Subcommittee on Energy and Environment had a documentary filmmaker arrested on Congressional property for daring to try to film a hearing that was taking place on the subject of "fracking" -- an issue for which this filmmaker, Josh Fox, is well known for covering in his documentary Gasland. As far as I can tell, it appears the reason for his arrest was that he was "filmmaking with a different opinion than subcommittee Chair Andy Harris." As the article linked above (by Zach Carter at HuffPo) details, it isn't just common, but pretty much standard, that journalists are allowed to film any open Congressional hearings.
While it's true that there are rules in which those who wish to film hearings are supposed to get permission, no one seems to be able to remember such rules ever being enforced:
"I was chair of the Subcommittee for four years, and we frequently had people show up the day of a hearing to film," Rep. Brad Miller (D-N.C.) told HuffPost. "We asked for their name, but they were told if they would not disrupt the hearing, they were free to record. A couple of times staff said, 'You're getting in the way, don't stand there,' but other than that, I do not ever recall anything like this. We certainly never turned anyone away for not providing 24 hours' notice."
Rep. Jerry Nadler (D-N.Y.) told HuffPost, “I have served in the House of Representatives since 1992, and I had the privilege of chairing the Subcommittee on the Constitution, Civil Rights, and Civil Liberties. In all that time, I cannot recall a chair of any committee or subcommittee having ever ordered the removal of a person who was filming a committee proceeding and not being disruptive, whether or not that person was accredited. It is a matter of routine that all sorts of people photograph and record our proceedings. Most of them are not accredited. I cannot recall anyone questioning their right to be there."
On top of that, even if you want to stick to the letter of the rules, and say that since he didn't have approval he shouldn't have been allowed, that still doesn't excuse the arrest. They could have simply confiscated the camera, or even simply checked to see if he could obtain a temporary permit:
Temporary passes are easy to obtain, and if Republicans had objected on procedural grounds, they could have simply sent the crew to the front desk, rather than ordering police to arrest journalists.
And, of course, now this is raising some serious First Amendment issues. Considering that pretty much everyone else has been allowed to film, and the only times that people are rejected are if there are too many cameras (not so in this case), it appears that the only reason that Fox was arrested was because his opinion was different from that of the subcommittee chair. And that's where the First Amendment issue comes in. If the reason for his arrest was based on his viewpoint, rather than his actions, then that's an almost certain First Amendment issue -- and since the only thing different in Fox's situation compared to most others' situations is his opinion... then this action likely trips that First Amendment wire.
But here's the really crazy thing: I can't, for the life of me, figure out how this move made any sense to Rep. Harris. If he had allowed the filming to go on, it would have been a non-story, and most people wouldn't have heard about this hearing or paid any attention to the issue at all. But by having the guy arrested, he's now called much more attention to the issue, guaranteeing that it becomes a news story that lives on for a while... and it does absolutely nothing to stop what happened in the hearing from appearing in a later documentary by Fox. That's because C-SPAN still filmed the whole thing... So all Rep. Harris did was give a lot more attention to a guy whose viewpoints he opposed.
For what it's worth, we've chided Fox in the past as well, for abusing the DMCA to take down videos he had no copyright over, to try to hide the speech of critics. He's certainly no free speech hero himself. But that hardly means that we should encourage his own free speech rights to be taken away. In the meantime, since much of the coverage here makes this into a "Republicans vs. Democrats" issue, one also has to wonder about Rep. Darrell Issa's view on the whole thing. While it was his party that had Fox arrested, he's been a champion of much more openness and transparency with recordings of Congressional hearings.
It seems that whether you agree with Fox or not, it's simply ridiculous (and potentially against the law) to have had him arrested merely for seeking to film the hearing in question.
And here we are with yet another example of someone using copyright for censorship. Stephan Kinsella points us to the news that Josh Fox, the Oscar-nominated filmmaker of the documentary Gasland, has apparently sent a takedown notice to YouTube, concerning a video of a reporter asking him some pointed questions about apparent omissions in the film. The reporter posted the 3-minute video to YouTube, which is almost entirely footage of him asking Fox questions at a screening. Early in the clip there is 26-seconds of footage from Gasland to provide the context of the questioning. This seems like a classic case of fair use, and yet if you visit the YouTube clip that the guy uploaded, you see this:
The journalist has now reposted the video to Vimeo, where he hopes it'll stay up (Update: and... just like that, it's gone too):
It's almost impossible to construct a scenario where that's not fair use. Whether or not you agree with Fox or the reporter concerning issues of natural gas drilling and "fracking" (and I actually consider myself among those who is concerned about fracking -- the issue that Fox tried to highlight with his documentary), we should all agree that it's absolutely wrong and abusive to use the DMCA in this manner. The guy asked Fox some tough questions, and he answered them. He might not like how the video appeared but that's not a copyright issue. Issuing a bogus copyright takedown claim is an abuse of the law (for which there are penalties) and, even worse, makes him look like he's running scared from these questions and unwilling to deal with them further.
Fox is free to argue that the clip misrepresented him, misquoted him or otherwise was unfair or questionable, if he believes that's the case. He can argue that he didn't give good answers and would like to answer the questions more fully. But what he should not be able to do is to issue a totally bogus copyright claim on the video which is clearly fair use, and where he's obviously not using copyright law as intended, but as a way to silence a critic of his.