by Mike Masnick
Wed, Aug 5th 2015 10:36am
by Mike Masnick
Fri, Jul 31st 2015 3:05am
from the isn't-this-a-problem? dept
In practice, this means state governments -- including things like research universities -- are able to infringe on patents in the public interest, claiming sovereign immunity in state courts against such claims. We've pointed out in the past how hypocritical it is that state universities frequently use such sovereign immunity claims to avoid lawsuits, while at the same time being some of the most aggressive patent trolls in going after others (with the University of California being a prime example). However, it is the law of the land and in the Constitution that sovereign immunity on things like patents cannot be abridged.
Yet, as the video above notes, the TPP appears to get rid of that, and would open up states, at the very least, to these international corporate sovereignty tribunals (also known as Investor State Dispute Settlement, or ISDS, tribunals).
In other words, the USTR may single-handedly undermine the Constitution's 11th Amendment, overturning Supreme Court precedent on the subject in a deal negotiated entirely in secret, with patent holders (who hate the sovereign immunity protections) as the key advisors. That's not how our government is supposed to work.
The threat here isn't just theoretical. Beyond the various patent cases that universities and state governments have been able to toss out via sovereign immunity, the video mentions the infamous lawsuit against Georgia State University over its e-reserves program. While that case has focused on the fair use questions involved, it's entirely possible that Georgia State could also claim sovereign immunity. And since the plaintiffs suing Georgia State are "foreign" publishers (including Oxford University Press and Cambridge Press), under the ISDS system, rather than going to a US court that would recognize sovereign immunity, they could just go to an ISDS tribunal which wouldn't care about sovereign immunity.
Do we really want the USTR completely wiping out part of our Constitution (which has helped enable university research) via a secretive trade agreement with no public accountability?
by Mike Masnick
Thu, Jul 30th 2015 7:42am
Now That USTR Has Fast Track, Hollywood Ramps Up Demands While USTR Brushes Off Public Interest Group Concerns
from the because-of-course dept
You know who they are listening to, however? You guessed it: Hollywood. Politico notes that now that fast track is in hand and the USTR has more or less free rein in completing the negotiations, Hollywood has jumped in with a bunch of demands to expand copyright laws via TPP:
We've seen the Hollywood versus tech copyright fight play out over everything from SOPA to the Library of Congress. Now the major movie studios are pushing for key items on their wish list as negotiators hammer out the final details of an Asia-Pacific trade agreement. The studios hope the 12 countries working on the pact will agree to copyright protections that, in many cases, last longer than what’s currently in place, Pro Trade’s Doug Palmer reports.And, because the USTR almost always gives in to Hollywood (it helps that the MPAA hired the top USTR negotiator on IP last year, so the current negotiators recognize that their next jobs are on the line with this agreement), it appears that the US has convinced a bunch of other countries -- who should know better -- to agree to lock in a life + 70-year copyright term, even as the US Copyright Office has suggested that current copyright terms are too long and should be scaled back.
The movie studios also want stricter penalties on piracy, especially as Internet access expands throughout the region.
There is no way to explain this as anything but selling out the public interest to appease corporate interests of Hollywood. It's a fairly disgusting display of the kind of "dealmaking" that the USTR has been pushing for more quietly for years, but now that it has fast track, it knows it can play hardball to help its friends in Hollywood. Fuck the public domain, Hollywood wants to keep getting paid for works from decades ago.
by Mike Masnick
Mon, Jul 13th 2015 11:44am
White House So Desperate To Get TPP Approved, It Agrees To Whitewash Mass Graves & Human Trafficking In Malaysia
from the disgusting dept
Some trade deal supporters in Congress tried to quietly remove this provision, but failed. And that left a big Malaysia-shaped problem in front of the TPP. But, the Obama administration is nothing if not resourceful in trying to make sure the TPP gets approved and big corporations get their expanded power over national governments around the globe.
It just decided to upgrade Malaysia from a tier 3 country to a tier 2 country. Because it could. Not because of anything done by Malaysia to improve its record on human trafficking. But because it was politically necessary. The details are simply nauseating:
Also sketchy: the State Department's report was actually due out last month, but was mysteriously delayed until after the whole mess with fast track was concluded. It's almost like the State Department chose to wait until it saw whether or not this provision was included to determine what Malaysia's status would be.
There is essentially zero evidence Malaysia has done anything to earn this reclassification. Just two months ago, police found 139 mass graves along the Malaysian border that contained migrant workers that had been trafficked or held for ransom.
Since the 2014 TIP report, Malaysia has actually convicted fewer smugglers. As recently as mid-April, the US ambassador to Malaysia publicly criticized the government there for not doing more to combat trafficking.
And if you want further evidence that this late decision to magically upgrade Malaysia to tier 2 wasn't in the cards originally, how about this:
Menendez’s office said Friday that an interim report was delivered to the Senate Foreign Relations Committee in March on Tier 2 countries only, and Malaysia was not included.In short, the State Department does not really think that Malaysia has improved its terrible record on human trafficking. It did not think so in March when it released an interim report. And then it made the political decision to hold off on releasing its June report until the middle of July to see how the fast track path proceeded.
Finally, rather than take this tool and use it force Malaysia to actually improve things, it gave the country a total free pass, just for the sake of finalizing TPP. I don't care where you stand on the various other provisions of the TPP, but this sort of cynical move -- where real lives are at stake -- is horrifying. And it shows the "who gives a fuck, get it done" attitude of our government right now. This isn't a theoretical issue. This is one where it's clear that people right now are being harmed, and rather than do anything about it, the government has deliberately chosen to turn a blind eye to the problem just so it can get this questionable trade deal passed.
This, of course, also is likely to confirm the fears of many who were opposed to the TPP all along. The Obama administration and US Trade Rep Michael Froman keep insisting that the TPP has a number of features to help raise labor standards in various countries. Yet, if they're happily willing to not just look the other way over Malaysia's human trafficking, but to actively whitewash it, what does that say for the seriousness with which it will enforce any labor practice rules?
by Mike Masnick
Thu, Jun 18th 2015 10:37am
from the this-is-ridiculous dept
The original plan was then to pull another procedural trick to re-vote for TAA on Tuesday of this week, but after realizing they simply didn't have the votes, that vote was pushed off until at least July 30th. However, supporters of the big trade deals apparently huddled yesterday and finally came up with a plan B: they would separate out the TAA and TPA but with a promise from Republicans that they would come back together later, and the President more or less said he wouldn't sign the TPA unless TAA came with it.
Either way, this plan B has now gone into effect and narrowly succeeded in the House with a 218 to 208 vote, meaning that even though we thought this was done in the Senate, the fight now returns there. The Democratic Senators who voted for the combined package originally now need to see if they trust everyone to also support TAA if they vote for TPA.
Yes, it's a confusing mess -- but basically this fight now goes back to the Senate with a pretty good chance that there will be enough votes to give the President fast track authority. There are some questions on that front, but it's close enough that someone is likely to cave. And then it appears we're right back to the fight over the TAA. If it's true that the President really won't accept TPA without TAA, the House still needs to pass TAA and that wasn't possible as of Tuesday. This is a procedural move that moves the process forward, but it's still not a done deal that the trade agreements will happen. Of course, there is the risk that the President will go back on his word and because he's so desperate to get the TPP agreement approved, that he'll accept the TPA without the TAA... and that will truly screw over his own party while helping Republicans massively, since they hate the TAA program. The question, really, is how badly the President wants that trade agreement. Is he willing to screw over his own party to make it happen?
In short: this fight isn't over yet, and for now it goes back to the Senate... but it will probably also return to the House before long, and may involve the President. And, so, we wait...
by Mike Masnick
Wed, Jun 17th 2015 2:46pm
As TPP Supporters Whine About Failure Of Fast Track, Why Is No One Suggesting Increased Transparency?
from the time-to-get-it-right dept
Meanwhile, the NY Times presents the argument that with the failure of fast track, and very likely TPP with it, it could greatly diminish the US's influence in Asia. This argument has been made for a long time, and it's... questionable at best. The article dutifully quotes the "40% of the global economy" line that supporters of the TPP throw out every other hour or so, but that's really overstating the impact of the TPP. Still, there is a legitimate argument that stronger trade relations between the US and these Asian countries is good for the global economy. But -- and this is the important part that isn't mentioned -- you don't need the TPP to do that.
Furthermore, this ignores the real reasons why the TPP failed. Rather than being about further opening up trading relations, the USTR ramped up the process that has been popular among lobbyists over the past couple of decades: using supposedly "free trade" deals to sneak in all sorts of regulatory schemes that will strongly pressure countries (including the US) to either change laws in certain ways, or block changing laws in other ways. That is, rather than free trade, these deals are actually the opposite. They're backdoor protectionism in the name of lobbyist-driven regulation.
And here's the thing that's amazing. In all of this, no one is talking about how to actually fix this. Pelosi talks about getting a "better deal" for the American middle class. And, sure, that would be great. But the real problem here is that these trade agreements became the playthings of giant corporate lobbyists, rather than democratically driven ideas.
If the TPP and other agreements like TTIP and TISA are really so vital to America's interests, and the interests of the "global economy," then let's have the negotiations and the debate out in public. Other international bodies, like WIPO, have long allowed such negotiations to happen publicly. It may not be how the USTR and its counterparts have negotiated such agreements in the past, but there's no reason they can't change now. Rather than continuing down this path of loading a ton of crap on the TPP tree, just to force through a few simpler free trading principles, why not conduct the negotiations openly, so that the public in all of those countries know what's going on and can see the reasoning behind these deals?
The only reason not to do this is to argue that the public is simply too dumb to understand why these deals are supposedly so important. And if that's your argument, then you're arguing against democracy. If the USTR believes it's representing democracy, then, at the very least, it should lead the way in saying that these trade negotiations will be conducted publicly and in a much more transparent way.
by Mike Masnick
Fri, Jun 12th 2015 11:21am
from the down-it-goes dept
The whole setup was somewhat confusing, because that official 302 to 126 vote was against Trade Adjustment Assistance (TAA), a program for helping workers whose jobs are displaced by trade. Such a program is usually supported by Democrats, but was rejected here in order to block Trade Promotion Authority (TPA), which was bundled with TAA on the Senate side. The later "show vote" for TPA is meaningless, because it would now need to go back to the Senate for a new vote, and the Senate won't approve TPA without TAA. And, of course, all of this is needed for the USTR and Obama to get the TPP (Trans-Pacific Partnership) approved. And, if you're confused by the fact that TAA, TPA and TPP all sound sorta similar, don't worry: that's all on purpose to confuse the hell out of you and most of the rest of the public.
Rest assured, however, that what happened today was the House of Representatives pumping the brakes on trade agreements like the TPP, after months of really heavy pressure from the White House, which had really ramped up in the past few weeks and days. This is a big blow to the USTR's program. It doesn't mean the House won't eventually get there, but it's not going to be an easy path, and this certainly could put agreements like the TPP (and TTIP and TISA) at risk.
by Mike Masnick
Mon, Jun 8th 2015 9:29am
from the well-isn't-that-great... dept
What is striking in the emails is not that government negotiators seek expertise and advice from leading industry figures. But the emails reveal a close-knit relationship between negotiators and the industry advisors that is likely unmatched by any other stakeholders.The article highlights numerous examples of what appear to be very chummy relationships between the USTR and the "cleared advisors" from places like the RIAA, the MPAA and the ESA. They regularly share text and have very informal discussions, scheduling phone calls and get togethers to further discuss. This really isn't that surprising, given that the USTR is somewhat infamous for its revolving door with lobbyists who work on these issues. In fact, one of the main USTR officials in the emails that IP Watch got is Stan McCoy, who was the long term lead negotiator on "intellectual property" issues. But he's no longer at the USTR -- he now works for the MPAA.
You can read through the emails, embedded below, which show a very, very chummy relationship, which is quite different from how the USTR seems to act with people who are actually more concerned about what's in the TPP (and I can use personal experience on that...). Of course, you'll notice that the USTR still went heavy on the black ink budget, so most of the useful stuff is redacted. Often entire emails other than the salutation and signature line are redacted.
Perhaps the most incredible, is the email from Jim DeLisi, from Fanwood Chemical, to Barbara Weisel, a USTR official, where DeLisi raves that he's just looked over the latest text, and is gleeful to see that the the rules that have been agreed up on are "our rules" (i.e., the lobbyists'), even to the point that he (somewhat confusingly) insists "someone owes USTR a royalty payment." While it appears he's got the whole royalty system backwards (you'd think an "IP advisor" would know better...) the point is pretty clear: the lobbyists wrote the rules, and the USTR just put them into the agreement. Weisel's response? "Well there's a bit of good news..."
by Mike Masnick
Thu, Jun 4th 2015 4:06pm
from the what-happens-behind-closed-doors... dept
Frankly, there's plenty of stuff in the TISA agreement that I think would actually be good for the internet, including many of the provisions I would normally cheer on if they were being presented and debated openly. We can discuss the merits of various proposals, but only if the discussion is held openly. Unfortunately, like with the TPP and TTIP agreements, all of the details are secret other than through leaks -- and as with some of those other agreements, the parties have agreed to keep all "negotiating" documents totally secret until five years after TISA is agreed upon.
So, even as I think there are ideas within TISA that actually are desirable, I can't see any reason why the people negotiating it can't make those arguments and positions publicly, and allow the public in on the debate. The fact that they're being kept secret, even when they're good ideas, makes me question whether or not they're truly good ideas, or what sorts of stupid poison pills have been slipped in.
But one clause, in particular, found in the leaked version is immensely troubling, opening up the possibility of effectively banning many governments from requiring open source software for certain activities. That's Article 6 in the latest leaked draft, which is text proposed by Japan:
Article 6: ... Transfer or Access to Source Code 1. No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.Now, this is nowhere near complete -- it is "bracketed text" which is still being negotiated, and Colombia already opposes the text. Also, some may argue that the second bullet point, which says it only applies to "mass market" software and not "critical infrastructure" software solves some of these issues. Finally, some might argue that this is reasonable if looked at from the standpoint of a commercial provider of proprietary software, who doesn't want to have to cough up its source code to a government just to win a grant.
2. For purposes of this Article, software subject to paragraph 1 is limited to mass-market software, and does not include software used for critical infrastructure.
But, if that language stays, it seems likely that any government that ratifies the agreement could not then do something like mandate governments use open source office products. And that should be a choice those governments can make, if they feel that open source software is worth promoting and provides better security, reliability and/or cost effectiveness when compared to proprietary software. That seems tremendously problematic, unless you're Microsoft.
by Mike Masnick
Thu, May 28th 2015 2:39pm
association of american publishers
Book Publishers Whine To USTR That It's Just Not Fair That Canada Recognizes Fair Dealing For Educational Purposes
from the you-know,-like-US-law dept
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—Thus, it seems like the Canadian interpretation is very much in line with the US's statutory view of fair use. Of course, over the years, in the US, publishers have repeatedly chipped away at fair use, such that now that Canada has moved to a position more akin to what the US's is supposed to be, those same publishers are absolutely flipping out. Last year, we noted that those US publishers submitted a recommendation to the USTR claiming that fair dealing in Canada was simply piracy. This was the publishers' submission to the USTR for consideration in preparing its annual Special 301 Report.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Apparently, this "fair dealing = piracy" argument didn't play well enough at the USTR and didn't make this year's Special 301 charade. So, the publishers are pissed. Or so reports a recent bit in Politico's Morning Trade (I'd link to the actual story, but Politico apparently doesn't believe in making it easy to permalink to its Morning Trade tidbits, so it's no longer there), where it notes they've asked the deputy USTR (and former BSA boss) to do something.
Deputy U.S. Trade Representative Robert Holleyman is traveling to New York today to attend the opening ceremony of BookExpo America, put on by the Association of American Publishers. The industry group is steamed over USTR’s failure in a recent report to confront what it regards as Canada’s overly broad copyright exception for educational purposes. “Active engagement by the U.S. and Canada to remedy the damage should not be put off any longer,” the AAP said.Think about that for a second. Here are American publishers flat out complaining about Canada setting up its laws to help people get educated. Do these publishers think even in the slightest about the kind of message they're sending out? "Fuck educating children -- we want more money."