Still Plenty To Be Concerned About With TPP

from the being-more-public-would-be-good dept

Thu, Jul 5th 2012 8:22am — Mike Masnick

While we are encouraged by the USTR's supposed recognition of the importance of limitations and exceptions in copyright law in their latest TPP draft proposal, there are still significant concerns about the TPP agreement, as a whole, including with the very specifics of the language around exceptions and limitations. Already, a few folks who have been burned before by the USTR are worried that the language being used is so narrow as to only allow fair use-like exceptions in a very narrow set of circumstances. Furthermore, as Sean Flynn lays out, there are many other key issues at stake in the specifics of the text around the IP provisions, way beyond just the limitations and exceptions. These include questions about the copyright status of "temporary copies" (think cached copies), parallel importation ("gray market"), copyright term extension, digital locks and a few other things as well.

You know what would make it so that people weren't so damned concerned about all of this? Opening up the proposed text so that the public can comment on it and give feedback. The fact that the USTR was willing to reveal that it's included a section on limitations and exceptions was nice... but, in part, helped to show the problem: that the USTR only gets to reveal little bits of info it wants to reveal, rather than presenting the document in an open fashion for public comment. That's not transparent at all. We're encouraged to hear that the USTR did share the "exceptions and limitations" language with some who weren't part of the formal "advisory committee" process, but we're still not talking about an open and transparent process -- and without that there are all sorts of opportunities for problems to arise.

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Filed Under: ron kirk, tpp, transparency, ustr

37 Comments

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TaCktiX (profile), 5 Jul 2012 @ 8:30am

But the USTR is extremely transparent...about its intents to keep us in the dark.
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Anonymous Coward, 5 Jul 2012 @ 8:55am

The only reason the U.S. wants to avoid transparency is because they know that the citizens won't like what's in the agreement and, when seeing what's in it, we will resist the provisions we don't like.

What we should do is strongly demand they cancel the entire agreement altogether. If the agreement isn't worthy of being publicly negotiated then it's not worthy of existing. Abolish the agreement!!!
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Anonymous Coward, 5 Jul 2012 @ 9:04am

apart from all the nasty bits that are still in the TPP document, the bits that no one outside of the meetings are allowed to see and the very narrow wording of the importance of limitations and exceptions in copyright law, the big question to ask atm is why did they release this bit? there has to be a specific reason that we have not been told of. that in itself makes me so very suspicious! i believe what they have done is a ploy, a means to try to sneak something through or add something else in that is or will be extremely detrimental to the people. given the defeat of ACTA, there has to be provisions now added into TPP to make up for the losses, just not all at once. I DO NOT AND NEVER WILL TRUST THEM AND NOR SHOULD ANYONE ELSE!! if things are being decided in secret that affect the people, they are gonna be bad!!
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JAFM, 5 Jul 2012 @ 9:06am

Objective of TPP: The End of All Democracy - World To Be Run By Corporations
(TPP): A Stealth Attack on Democratic Governance
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Anonymous Coward, 5 Jul 2012 @ 9:14am

Shh, shh. It will all be okay
I agree that the release of the section dealing with limitations is itself a worrying development with the TPP agreement. The fact that the whole documnent isn't available means that this (unreliable, potentially temporary) section is designed just to shut up detractors.

It's existance and release is a sham.
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Anonymous Coward, 5 Jul 2012 @ 9:17am

I think it is important to be positive about the slow progress made on transparency. Again, it is a question of too little, too late, but at least they are moving in an encouraging direction.

As it has been said before: Transparency is not a question of a limited availability for specific groups. It is about incorporating, whoever wants to be part of it and at the same time, so no group gets to butcher an important treaty or agreement before it is done.
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arcan, 5 Jul 2012 @ 9:22am

Re:
i agree that they are unprecedentedly transparent. this little transparency has never been accomplished before.
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arcan, 5 Jul 2012 @ 9:24am

Re: Objective of TPP: The End of All Democracy - World To Be Run By Corporations
would it surprise people if tpp made corporations people with the same number of votes as everyone employed there combined? times some random mulitplier so the RIAA would technically have 50% of the US vote by themselves and the MIAA would have the other half. and it would apply to every single district?
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Anonymous Coward, 5 Jul 2012 @ 9:32am

Re:
"I think it is important to be positive about the slow progress made on transparency."

What progress?

"Again, it is a question of too little, too late, but at least they are moving in an encouraging direction."

Only encouraging to industry interests. Copy protection lengths still last outrageous amounts of time, the penalty structure is still one sided in favor of IP extremists and useless middlemen, our patent system is still broken, and copy protection is still opt out with no centralized reference database for us to track what's still in the public domain and what's not or to have guaranteed access to protected works once they do enter the public domain (in case we've otherwise lost record of them). Heck, the fact that IP laws exist itself is a problem. Abolish IP!!!

"so no group gets to butcher an important treaty or agreement before it is done."

I agree, we shouldn't let Hollywood et al butcher the treaty before it is done. Yet they are allowed to create a butchered treaty, one that butchers everyone else. What makes the group of industry interests more special than everyone else that they get to be invited to treaty negotiations and not anyone else? What makes them less capable of 'butchering' the treaty in their sole interests. That's exactly what they're doing. By 'butcher' you mean you don't want the public to make the government act in the public interest by butchering the industry interests of those who buy laws with campaign contributions and revolving door favors. By 'butcher' you mean fix an already butchered treaty designed to work against the public interest so that it won't work against the pubic interest. This treaty can't be further butchered than it already is, this treaty itself is a butcher against the American public and it needs to be axed altogether.
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Violated (profile), 5 Jul 2012 @ 9:42am

ITS POISON
From ACTA they can now see we wont want to eat their poisoned international agreement. So they want to sugar-up TPP to the point that people will want to eat it.

Come eat your poisoned food. Hmmmm tasty. Open up your mouth and in it goes. Woooo like a 9/11 aircraft into the WTC. Hmmm so sweet this beautiful poison. Down it goes and don't worry at all about society getting sick or if some company dies when our poison is only healthy and good and protects you.

I like to be a trusting person but would you really trust a lion to babysit a young child?
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Anonymous Coward, 5 Jul 2012 @ 9:43am

Given Mr. Flynn's penchanct for overstatement, I personally would like to see counterstatements before jumping to the conclusion that the TPP issues he addresses are meritorious.
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Anonymous Coward, 5 Jul 2012 @ 9:47am

the best thing would be 'Opening up the proposed text so that the public can comment on it and give feedback.'

but that is the suggestion from a sensible, reasoned person and exactly why it will never happen! let's face it, give the paying public what they want, when they want it, how they want it, in the format and speed they want it and at a price they want? dont be ridiculous! reduce copyright terms so only those that originally had the copyright can claim it, instead of allowing those that have bought the rights being able to continue that copyright? stop copyright lasting after the death of the original licensee? not a chance!!
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Dave Xanatos, 5 Jul 2012 @ 9:57am

Concerns? What concerns?
To have any legitimate concerns, you'd have to be able to read it. Anytime someone asks to read it, Kirk waves his hand and says "This is not the trade agreement you're looking for..."

Crap. I just violated copyright. Sorry about the incoming DMCA notice, Mike. Also, something about the name Kirk strikes me as very wrong in this context, but I just can't put my finger on it.
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Anonymous Coward, 5 Jul 2012 @ 9:57am

Re:
Here, I'll save you the time.

Counterstatement: "Just trust us, everything is fine!"

There you go.
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DannyB (profile), 5 Jul 2012 @ 9:57am

Re: Re: Objective of TPP: The End of All Democracy - World To Be Run By Corporations
I clicked Insightful. But there needs to be a button marked Scary.
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DannyB (profile), 5 Jul 2012 @ 10:02am

Are you crazy?
Open up the TPP text so the public (who is not a stakeholder) can comment and give feedback?

The people behind TPP have been quite transparent in the fact that they don't want feedback in their efforts to put an end to this pesky democracy and due process nonsense. TPP supporters could even say Transparency Is Our Middle Name.

Have you considered the TPP text could be copyrighted and therefore making copies available could be an inducement to infringement? Keeping the TPP text a secret prevents piracy. Preventing piracy is a good thing and all other considerations are secondary.

More laws need to be copyright protected from piracy by the public.
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The eejit (profile), 5 Jul 2012 @ 11:04am

Re:
No, the correct suggestion would be to stop a small minority from getting legislative privilege from the beginning of these treaty negotiations.
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Mike Masnick (profile), 5 Jul 2012 @ 11:17am

Re:
Given Mr. Flynn's penchanct for overstatement

That's odd. I've yet to see Flynn overstate anything. In my experience he's been the opposite, where he's overly cautious in his statements.

Amusingly, this morning, I received an email from someone who has seen the text and said that Flynn's analysis was "spot on."

Somehow, it doesn't surprise me that you'd lie and cast aspersions on people you don't know.
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Chilly8, 5 Jul 2012 @ 11:40am

As far as anything in your cache getting you into trouble, there are always utilities like KillDisk, which can permenently annihalate them, where they cannot be recovered.

Because of the possibility that someone could still sneak S 978 through (and it would not surprise me if they were to try to sneak that into CISPA), I already have and use the product, so that the temporary browser cache in both IE and Chrome are completely eradicated, and even the best law enforcement forensic software cannot recover it.
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TtfnJohn (profile), 5 Jul 2012 @ 12:37pm

Re: Re:
Oh yes, it has. Or at least it was attempted in the negotiations on the Canada-US FTA. The "opaque" transparency surrounding TPP was attempted there until the process started to leak like a sieve. Particularly as sections of that agreement were to apply to water rights.

I'm not at all sure when TPP will start to spring leaks as things go on either. Wikileaks may or may not come back to life but someone else will happily publish the leaks on the Web. Say, perhaps, a Chinese blogger who will be sent some of the "talking points" and proposals which could damage Chinese trade.

The utterly insane part of this is that by doing this the negotiators create opposition to the proposed treaty even at this early stage. I guess they've learned nothing from what happened in Europe yesterday which will put the nail in another horrid treaty called ACTA.
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Loki, 5 Jul 2012 @ 1:43pm

Of course they aren't going to open up the process to "outsiders". If the industries involved can't spend two years carefully crafting the language of their pet documents so that it can be most abused yet sounding like it can't be, and then giving their opponents two weeks to find all the secret little tricks, how do you expect them to stay in business?

Clearly they've shown over the last fifty years, and especially in the last decade, they can't compete in a fair and open marketplace without a combination of government protection and still being dragged into the present.
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Androgynous Cowherd, 5 Jul 2012 @ 2:57pm

Subterfuge
Someone else has already suggested that the USTR may have claimed to be adding in exceptions language (and the MPAA pretending to be outraged) to lull TPP opponents into a false sense of security; until we see the actual US negotiating position we don't know for sure, do we? But there's another possibility:

Furthermore, as Sean Flynn lays out, there are many other key issues at stake in the specifics of the text around the IP provisions, way beyond just the limitations and exceptions. These include questions about the copyright status of "temporary copies" (think cached copies), parallel importation ("gray market"), copyright term extension, digital locks and a few other things as well.

(emphasis added).

What if there are broad fair use provisions included -- but allowed only because the MPAA allowed them in exchange for requiring a strong digital lock regime with strict anticircumvention rules not tied to infringement? The fair use provisions then can be overridden completely, and even fair use provisions already existing in another country's laws, by the MPAA and other "rights holders" just by slapping a bit of weak encryption on a product.

This bears very close watching.

Meanwhile, on the topic of temporary copies, I submit that data in volatile storage should be completely exempt from copyright as it is not a copy of a work "fixed in a medium", unlike one in nonvolatile storage. That would fix all kinds of copyright issues around caching, streaming (could still count as a performance when not recorded, and as copying when recorded), and the temporary copies of software made in RAM when you run it -- though on-disk caching could remain an issue.
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Androgynous Cowherd, 5 Jul 2012 @ 3:12pm

Re: Subterfuge
And here's another disturbing thought: that the USTR will "honestly" push for strong exceptions language, because the MPAA let them off the leash, because the MPAA bought diplomats in some other country into refusing to budge from a hard-line anti-exceptions position, with all three in league.

That takes the pressure off the USTR and lets them blame some other country when the final version of the treaty lacks strong exceptions language: "Sorry, folks. We tried to get fair use in there but the damn Noplaceistanese wouldn't agree to anything better than what we ended up with. (The fact that there's a sudden increase in major American film studio investment in film startups in Noplaceywood is purely coincidental, of course.)"
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Anonymous Coward, 5 Jul 2012 @ 8:26pm

The full document probably reads as this near the area that was revealed:

"The following text shows things that definitely will not be a part of TPP. Please ignore the following as it has no validity during signing:

(list of points and promises about fair use and crap the Big Corp despises)"
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Anonymous Coward, 5 Jul 2012 @ 10:20pm

Re: Re:
I have followed Mr. Flynn's work over the years, just as I have done for many within academia whose research and legal opinions span all sides of the aisle.

I understand the basis for your comment that you have not seen Mr. Flynn overstate anything. I happen to have a different view based upon what what I have read in several of his academic articles and public presentations.

Since I do not know what "text" your unidentified person has seen and to whom you attribute its being "spot on", I have no means by which to measure your comment.

I am not surprised that you are not surprised, but then again this is an easy staement to make when you labor under a misunderstanding of law in general, and intellectual property (BTW, I too do not like this term, but for different reasons) law in particular.
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Anonymous, 5 Jul 2012 @ 11:12pm

Acronymn Alert
What is USTR and TPP?

Should be referenced at least once don't ya think?
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Mike Masnick (profile), 6 Jul 2012 @ 2:40am

Re: Acronymn Alert
What is USTR and TPP?

Should be referenced at least once don't ya think?

No.
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Mike Masnick (profile), 6 Jul 2012 @ 2:42am

Re: Re: Re:
I have followed Mr. Flynn's work over the years, just as I have done for many within academia whose research and legal opinions span all sides of the aisle.

I bet you have.

I understand the basis for your comment that you have not seen Mr. Flynn overstate anything. I happen to have a different view based upon what what I have read in several of his academic articles and public presentations.

Prove it. Cite an example of him overstating something.

Since I do not know what "text" your unidentified person has seen and to whom you attribute its being "spot on", I have no means by which to measure your comment.

The text of TPP. Are you really that stupid?

I am not surprised that you are not surprised, but then again this is an easy staement to make when you labor under a misunderstanding of law in general, and intellectual property (BTW, I too do not like this term, but for different reasons) law in particular.

Heh. Always free with an insult made out of ignorance. Trust me, I understand both the law and IP much better than you. That has been made quite clear.
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Anonymous Coward, 6 Jul 2012 @ 7:55am

Re: Acronymn Alert
USTR stands for United States Trade Representative, a position currently held by Mr. Ron Kirk.

TPP stands for Trans-Pacific Partnership, a trade agreement presently being negotiated. A summary of what the agreement entails can be found at:

http://en.wikipedia.org/wiki/Trans-Pacific_Strategic_Economic_Partnership#Members
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Anonymous Coward, 7 Jul 2012 @ 8:11am

Re: Re: Re: Re:
Trust me, I understand both the law and IP much better than you.

I am not inclined to accept your invitation, using as but one of numerous examples your comment concerning the holding in MercExchange v. eBay.
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Mike Masnick (profile), 8 Jul 2012 @ 11:28pm

Re: Re: Re: Re: Re:
I am not inclined to accept your invitation

Ha!! So you can't even provide a SINGLE citation.

This is why we call you out as being full of shit. Because you are.

using as but one of numerous examples your comment concerning the holding in MercExchange v. eBay.

Which we were right on, and you were wrong. Of course. Because you continue to be totally full of shit. Even people on CAFC agree with our interpretation of the MercExchange ruling.

You pretend you know stuff and you do not. Then we call you on it and you pretend you weren't just proven to be a complete idiot.

You're so full of shit, it's incredible.
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Anonymous Coward, 9 Jul 2012 @ 12:52pm

Re: Re: Re: Re: Re: Re:
Why not try reading the Supreme Court holding before launching off on yet another self-indulgent diatribe about your legal expertise? Let me make this one issue easy for you.

From the syllabus published with the decision in MercExchange v. eBay:

Held: The traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. That test requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved
by a permanent injunction. The decision to grant or deny such relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion. These principles apply with equal force to Patent Act disputes. �[A] major departure from the long tradition of equity practice should not be lightly implied.� Weinberger v. Romero-Barcelo, 456 U. S. 305, 320. Nothing in the Act indicates such a departure. Pp. 2�6.

The above articulates the longstanding "four-factor test". Note that not one portion of the test is changed. The only thing that has changed is the court notes permanent injunctions in patent cases should not almost automatically be awarded to a prevailing patentee. The test must be applied in each instance. You might want to also take a look at the concurring opinions and how they relate this holding to then current practices within the CAFC
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Anonymous Coward, 9 Jul 2012 @ 2:12pm

BTW, I declined accepting your invitation to "trust me" about your legal expertise. My declining the invitation applied to nothing else.
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Mike Masnick (profile), 10 Jul 2012 @ 1:31am

Re:
BTW, I declined accepting your invitation to "trust me" about your legal expertise. My declining the invitation applied to nothing else.

Obviously it did, because you failed to provide a single citation. Because you're completely full of shit.
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Mike Masnick (profile), 10 Jul 2012 @ 1:33am

Re: Re: Re: Re: Re: Re: Re:
The above articulates the longstanding "four-factor test". Note that not one portion of the test is changed. The only thing that has changed is the court notes permanent injunctions in patent cases should not almost automatically be awarded to a prevailing patentee.

Holy fuck. The WHOLE POINT of the discussion we had was that I said that what changed with Mercexchange was that permanent injunctions in patent cases should not automatically apply.

In other words, thank you for proving my point -- both that I was right *and* that you are full of shit. Thanks.
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Anonymous Coward, 10 Jul 2012 @ 5:37am

Re: Re: Re: Re: Re: Re: Re: Re:
From your article:

"...courts are only supposed to issue injunctions in exceptional cases..."

This is not what the court held.

The following is also in the article:

"If it's an issue that can be dealt with by requiring a royalty, then there's no reason to issue an injunction."

It would take a highly unusual set of facts for a court to even entertain imposing such a requirement since a basic rule of patent law is that compulsory licenses are not available as an element of legal damages.
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Anonymous Coward, 10 Jul 2012 @ 2:26pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
To be clear on my last point, a court generally does not have the authority to mandate the award of a license compelling a patentee to license an infringer. A court can award money damages in a "sum certain", but forcing an unwilling patentee to grant a license that survives the end of a contested matter is quite another thing.
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