Double Standard On The Special 301 Report: Industry Is Allowed Vague, Unsupported Statements; Consumer Advocates Are Not

from the funny-how-that-works dept

Thu, Mar 10th 2011 2:53pm — Mike Masnick

We've already pointed out the general ridiculousness associated with the USTR's "Special 301" report, which is widely regarded as a joke. The report, which allows the administration to name which countries have been "naughty" when it comes to intellectual property enforcement, has no methodology. It has no objective measures. It has no accountability. Basically, industry groups submit their own reports on what countries are bad, and the USTR rewrites them as its own report, doing nothing to actually fact check the claims or to even quantify anything. In the past couple of years, the USTR has been more open about having consumer rights organizations -- and even consumers themselves -- submit their own reports, but there's been little indication that anyone at the USTR has actually listened to any of those reports.

And, in a rather striking demonstration of how this all works, Stan McCoy, from the USTR (and apparently a top candidate to take over the Copyright Office, despite not being an expert in copyright law), presided over hearings concerning the Special 301 report recently, in which both industry groups and consumer groups appeared. Yet, as one observer noted, McCoy appeared to have a total double-standard concerning how he viewed the comments of each:

The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups� testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.

Testimony from groups like Global Health Organization, the Forum on Democracy and Trade, Oxfam, Public Knowledge, and others were met with aggressive push back and questioning on how criticism on the Special 301 process was at all relevant to the committee�s ability to render judgments on individual countries.

But that�s exactly the problem. The report is written so vaguely, and industry complaints taken at such face value, that specific criticism of the report is near impossible. I was surprised to learn that the report doesn�t include a list of criteria used to evaluate countries or even clear explanations on why specific countries are placed on the watch list, nor does it say which industry-submitted comments were the basis for citation.

So if you're from industry, it's absolutely fine to make vague, totally unsubstantiated statements -- even if they've been widely debunked by actual experts and researchers. Yet, if you're representing consumers, you need to have specific points to make or you get chided. And, of course, you can't make any actual specific points because the USTR doesn't have any specific criteria on which it bases the overall report. Brilliant.

Also, it appears that McCoy is somewhat uninformed about his own organization's report (which he is closely connected with):

The best moment of the hearing, to me, was during Sean Flynn's testimony on behalf of the Forum on Democracy and Trade. Flynn argued (for the second year in a row, I might add) that citing countries like Finland, France, Italy, and Japan for "unfair [pharmaceutical] reimbursement policies" was incredibly vague, hypocritical (because the US has similar reimbursement policies), and--most importantly--outside the statutory mandate of the Special 301 process. McCoy retorted that no such citation was in the 2010 report [pdf].

Flynn�s response? "It's right here on page 14..."

And people wonder why foreign governments, and many of us who pay attention to these issues, consider the Special 301 process to make a mockery of the US government on intellectual property issues.

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Filed Under: consumer rights, copyright, industry, politics, special 301, stan mccoy, ustr

20 Comments

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Anonymous Coward, 10 Mar 2011 @ 3:05pm

Of course they will control it the way they want, otherwise they won't have anything to threaten the "bad" countries with. It's the US Govt after all.......
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Anonymous Coward, 10 Mar 2011 @ 3:15pm

The only place allowed to be vague and misleading is Techdirt! It's a rule!
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Anonymous Coward, 10 Mar 2011 @ 3:18pm

My favorite part is when they say other countries should break the law, like they do: The United States encourages Canada to provide its border officials with the authority to seize suspected infringing materials without the need for a court order.
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Anonymous Coward, 10 Mar 2011 @ 3:20pm

Re:
If the US is trying to abolish due process, why wouldn`t they want others to as well?
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cc (profile), 10 Mar 2011 @ 3:22pm

Re:
Which explains why you aren't supporting that vague and misleading statement.
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The eejit (profile), 10 Mar 2011 @ 3:23pm

Re: Re:
Because it would make them look good!
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Anonymous Coward, 10 Mar 2011 @ 3:31pm

Re: Re:
Maybe I am and maybe I am not, or perhaps rabbits are eating carrots somewhere. Maybe artificial scarcity died, or perhaps more people just figured out that almost all scarcity is artificial. I don't know. Perhaps.
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Anonymous Coward, 10 Mar 2011 @ 3:36pm

Re: Re: Re:
Of course... "Hey, they're doing it too!" (pointing fingers). That's exactly the US govt's mentality, sadly.
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cc (profile), 10 Mar 2011 @ 3:36pm

Re: Re: Re:
That proves it then.
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Jay (profile), 10 Mar 2011 @ 3:48pm

Re: Re: Re: Re:
cc...

Don't give anymore carrots to the troll. You look at them through the cage and smile nicely for the photo-op!

How many times do we have to tell you?
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Capitalist Lion Tamer (profile), 10 Mar 2011 @ 4:20pm

Re:
Wow. No court order, eh?

They must really view themselves as avenging angels on par with Elliott Ness or Dirty Harry. Just kick the door down and start hauling people away. Start swinging that axe and busting up those virtual stills. Due process is too good for (suspected) "criminals."

And to what end? Does shutting down an "infringing" site really put more money in their pockets or the much smaller pockets of the artists they claim to represent?

Or is it just more imaginary math where every linking site taken down equals X millions of dollars? If so, the 84,000 sites taken down recently ought to have resulted in hundreds of jobs and a windfall of cash.

Oh. It didn't?

Then I guess this is just vindictive action at the behest of their employers (yes, exactly what I said) that leaves them all with a smug sense of self-righteousness and little else. As their artists should know by now, you can't ready feed a family on self-satisfaction. Especially second-hand self-satisfaction.
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cc (profile), 10 Mar 2011 @ 4:23pm

Re: Re: Re: Re: Re:
I only feed the furry cute ones!
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Anonymous Coward, 10 Mar 2011 @ 6:37pm

Re: Re: Re: Re: Re: Re:
They make nice pets, don't they?
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Anonymous Coward, 10 Mar 2011 @ 6:38pm

Re: Re: Re: Re: Re: Re: Re:
(just be careful not to pet the trolls. Sometimes they'll try and bite you).
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Anonymous Coward, 10 Mar 2011 @ 6:41pm

Re: Re: Re: Re: Re: Re: Re: Re:
These ones don't bite!
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Anonymous Coward, 10 Mar 2011 @ 6:57pm

Re: Re:
Excellent explanation. I tip my hat to you. I think it serves to fuel their propaganda campaign, to help fulfill their agenda.
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Jose_X, 10 Mar 2011 @ 11:32pm

Re: Re:
They must really view themselves as avenging angels on par with Elliott Ness or Dirty Harry... or at least Elmer Fudd.
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The eejit (profile), 11 Mar 2011 @ 3:09am

Re: Re: Re:
Elmer Fudd is an avenging angle. I mean, look at that honker he has! It's just a pinata of money, just waiting to be popped!
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Shon Gale (profile), 11 Mar 2011 @ 5:26am

The USTR sounds like they do business like Google. Lot's of info and no validity. Lot's of empty links and no substance.
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Killer_Tofu (profile), 11 Mar 2011 @ 6:18am

301 Report as Evidence
I almost like the 301 Report. It is a constant reminder by our government how much they have sold out to special interests and are completely anti-american. I can only hope that other countries see it for what it is and take us much less seriously on IP issues. It shows how ignorant some in our government are, and very clearly points out who not to listen to.

As another commenter said somewhere, we need to get Greed declared a religion since so many people seem to worship it. Then congress can't pass any more laws that cater to it.
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