USTR Only Wants To Hear From You If Some Foreign Country Isn't Maximalist Enough

from the biasing-the-comments dept

Thu, Feb 7th 2013 1:43pm — Mike Masnick

For years, we've pointed out how ridiculous the USTR's Special 301 Report is. The report, which the USTR is required to put out each year, is basically a chance for copyright and patent maximalists to launder their complaints about certain countries through the USTR, allowing such complaints to get the official stamp of the US government, such that diplomats can pressure countries to implement really bad laws. The whole thing is a joke. Everyone admits that there is no actual objective process that the USTR uses to figure out who has been "naughty" and who has been "nice" when it comes to intellectual property laws. There is just the USTR going through submissions from copyright and patent maximalists, and deciding who has been named enough to be shamed.

Three years ago, we actually tried participating in the open comment period and submitted a comment highlighting the value of not creating a monoculture of maximalism around the globe on these issues, and why merely stamping the industry's claims as legit was probably not a good idea. The end result? The same exact crap as before. Given that this seems to be standard operating procedure for the USTR (and, it's only gotten worse with things like ACTA and TPP), I've not even bothered to submit comments any more. However, if anyone would care to try, the comment period is open through Friday... but it's interesting to note that the instructions for commenting already show that the USTR doesn't want to hear from you. It's really quite incredible. The very explanation of what they're asking for pre-supposes a whole bunch of things, and effectively says "only use this to complain about countries who haven't done enough to help your industry -- that's all we want to hear about."

USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

What about comments from people pointing out countries whose copyright and patent policies are too protective? Not wanted?

Written comments should include a description of the problems that the submitter has experienced and the effect of the acts, policies, and practices on U.S. industry.

Not the US public. Not on US culture. Just on US industry. Yes, the USTR is focused on industry, but the very purpose of copyright and patent law is supposed to be to benefit the public. Shouldn't their interests matter?

In other words, the USTR doesn't care about the public or your interests. All it wants to know is how it can better force other countries into over-protectionist policies that benefit a few legacy industries. You can still submit your own comments, but it seems pretty clear that they don't want to hear from you.

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Filed Under: comments, copyright, industry, maximalism, patents, public, special 301 report, ustr

25 Comments

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DOlz, 7 Feb 2013 @ 1:54pm

Dear USTR
I would like to report that Iceland is not doing enough to protect Dutch software companies from piracy.
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ChurchHatesTucker (profile), 7 Feb 2013 @ 2:00pm

Fair Use?
USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

I wonder if, say, Google could craft a complaint that lack of Fair Use in a country is harmful to their business.
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Anonymous Coward, 7 Feb 2013 @ 2:01pm

I don't expect in any way that they will take it seriously, but given the description, you could reasonably submit the US as a country to put on the watch-list:

- they deny fair and equitable market access
- the effect of their acts, pocilies and practises is noticeable by businesses and public alike, both within and outside of the US

Really, the only thing is the 'foreign' part.
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Anonymous Coward, 7 Feb 2013 @ 2:04pm

Sounds like...
there just needs to be a flood of complaints from the public. So many that finding the ones they want in the sea of others would be a very laborious process.

either that or...

It's a job for 4chan!
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Lord Binky, 7 Feb 2013 @ 2:05pm

The present use of copyright is pretty foreign from it's original intent. Does that count?
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Lord Binky, 7 Feb 2013 @ 2:06pm

Re: Sounds like...
What can not be solved with liberal application of 4chan?
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Anonymous Coward, 7 Feb 2013 @ 2:12pm

Re:
This hinges heavily on how 'foreign' is defined. As per Merriam-Webster, one of the accepted definitions is "alien in character : not connected or pertinent". Which explains a great deal about many of the stories discussed here in one short word.

http://www.merriam-webster.com/dictionary/foreign
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Chris Brand, 7 Feb 2013 @ 2:20pm

Re:
Right. They don't actually ask for "negative" effects, either, so you could say "This has the effect of propping up antiquated industries that have been made obsolete by technological progress, despite the fact that the US as a whole would be better off if they were forced to adapt or allowed to fail".
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Anonymous Coward, 7 Feb 2013 @ 2:30pm

To be fair to the USTR, when the point of the Special 301 report is to shame other countries as punishment for not being maximalist enough, it makes perfect sense for their submissions process to ask only for evidence of other countries not being maximalist enough.

Of course, this is very much like the logical fallacy of begging the question. Or perhaps it's just bad science: collecting only evidence which supports the hypothesis.
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Anonymous Coward, 7 Feb 2013 @ 2:31pm

Re: Re:
"the effect of propping up antiquated industries that have been made obsolete by technological progress"

I think this could actually be described as retardation.
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Anonymous Coward, 7 Feb 2013 @ 2:36pm

They want comments on industry? Fine, let's given them comments on how every industry but the antiquated gatekeepers and monopolists keep suffering as a result of this garbage.
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Andrew Norton (profile), 7 Feb 2013 @ 2:45pm

same experience
I've submitted several times over the past few years
http://www.ktetch.co.uk/2011/02/ustr-301-submission-2011.html and http://www.ktetch.co.uk/2010/02/acta-comment-to-ustr.html for instance.

Never got anything back for it. Didn't bother last year.
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Anonymous Coward, 7 Feb 2013 @ 3:13pm

Re: Re: Re:
hah, that is actually an interesting take.

"The obsession of USTR to protect ratarded industries is putting U.S. internet based businesses by protecting false DMCA claims and thereby fair use. The lack of adequate protection against this is creating an unequitable market for U.S. entrepreneurs in this industry where we rely on access to intellectual property.
I therefore graciously request U.S. be considered for the list"
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Anonymous Coward, 7 Feb 2013 @ 3:23pm

Re:
I vote for: "political biased and fallacious castration clamp based on completely non-scientific methods and not withholding any respect for foreign or homeland disagreement."

Why anyone should respect USTR within any meaning of the word is beyond belief and it is incompetence by the president, the house and the senate that this abomination is not closed down.
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Anonymous Coward, 7 Feb 2013 @ 4:03pm

Quote:
USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

I identify the USA as such country since they have done nothing to protect the intellectual property of others namely the public domain, it has repeatedly forced spurious laws that goes against tis own interests only to cater to special interests, have a corrupt political system and routinely campaign against the public interests harming business opportunities by granting monopolies to a lucky few while ignoring others.
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apauld, 7 Feb 2013 @ 4:06pm

I feel like making up fake country names could be fun...
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Anonymous Coward, 7 Feb 2013 @ 4:24pm

Re: Re: Re: Re:
Now Now, lets be PC....

Calling media companies Retarded is not fair to the true mentally challenged individuals out there who had to suffer with that term growing up. They are just getting over the trauma of being called retarded, and now you go and conflate them with media companies... oh the horror, the poor dears will never recover from this defamation....
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Ophelia Millais (profile), 7 Feb 2013 @ 4:31pm

Re: same experience
I think it's good that you commented, though. I know it's discouraging to be ignored, but there's a small part of me that's foolishly optimistic about the idea of submitting comments that challenge the status quo.

Of course, the USTR is going to ignore anything along the lines of "these industries are dinosaurs that deserve to die." You'd have to frame it more like "Here's something good for American business." In other words, for your comment to even be looked at by anyone who matters, you'll have to dole out free advice on how U.S. IP-dependent industries can remain competitive and benefit more by embracing something less than the typical maximalist policies and philosophies they've advocated in the past.

I would trot out examples of industries that do very well without maximum protection from unwanted competition (bottled water, fashion, and subscription TV are among my favorites) and examples of industries that flourish despite rampant illegal competition (like pretty much the entire entertainment industry). Are we to believe that prices would go down if only piracy could be stopped?

I'd also point out the ways that copyright/patent/trademark maximalism and finger-pointing hinders and discourages innovation, concentrates influence and commerce into a handful of multinational corporations, undermines culture and public confidence in IP in general, and makes American IP-based industry less competitive and less profitable.

It's probably still just pissing in the wind, but at least someone representing the public interest would be on record.
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Anonymous Coward, 7 Feb 2013 @ 6:10pm

Re:
It's not just "to be fair" - this is what USTR is directed by law (that is, by Congress) to do. The Special 301 process is part of the Trade Act of 1974. USTR's job in the Special 301 process isn't to collect any old comments about what other countries are doing, but to collect information on trade practices that are "unreasonable" as defined in the statute. And that definition is in 19 U.S.C. Section 2411(d)(3). This is what it says is "unreasonable"...

(B) Acts, policies, and practices that are unreasonable include, but are not limited to, any act, policy, or practice, or any combination of acts, policies, or practices, which�
(i) denies fair and equitable�
(I) opportunities for the establishment of an enterprise,
(II) provision of adequate and effective protection of intellectual property rights notwithstanding the fact that the foreign country may be in compliance with the specific obligations of the Agreement on Trade-Related Aspects of Intellectual Property Rights referred to in section 3511 (d)(15) of this title,
(III) nondiscriminatory market access opportunities for United States persons that rely upon intellectual property protection, or
(IV) market opportunities, including the toleration by a foreign government of systematic anticompetitive activities by enterprises or among enterprises in the foreign country that have the effect of restricting, on a basis that is inconsistent with commercial considerations, access of United States goods or services to a foreign market,
(ii) constitutes export targeting, or
(iii) constitutes a persistent pattern of conduct that�
(I) denies workers the right of association,
(II) denies workers the right to organize and bargain collectively,
(III) permits any form of forced or compulsory labor,
(IV) fails to provide a minimum age for the employment of children, or
(V) fails to provide standards for minimum wages, hours of work, and occupational safety and health of workers.

Given this Congressional mandate, it's no surprise that USTR wants to hear about practices by other countries that are "unreasonable" (as defined in the statute) but not reasonable ones. About the only way that the kind of information you're talking about falls within USTR's mandate is in the next part of the definition of "unreasonable" in the statute...

(C)
(i) Acts, policies, and practices of a foreign country described in subparagraph (B)(iii) shall not be treated as being unreasonable if the Trade Representative determines that�
(I) the foreign country has taken, or is taking, actions that demonstrate a significant and tangible overall advancement in providing throughout the foreign country (including any designated zone within the foreign country) the rights and other standards described in the subclauses of subparagraph (B)(iii), or
(II) such acts, policies, and practices are not inconsistent with the level of economic development of the foreign country.

That doesn't leave a lot of room for USTR to consider information about how the maximalist view IP rights as defined by the U.S. government aren't so great as the government says they are. Sounds like the blame rests with the Congress of 1974 more than with USTR though.
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Androgynous Cowherd, 7 Feb 2013 @ 10:56pm

Market access?
USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

You gotta love the Orwellian redefinition of "market access" as "keeping out competitors".
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Anonymous Coward, 7 Feb 2013 @ 11:18pm

Re:
You could make a reasonable argument that the USTR itself is causing much of the problems with the US exports industry, in addition to removing innovation at the third or fourth stage.
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Anonymous Howard (profile), 8 Feb 2013 @ 1:03am

Re: Re: Sounds like...
I don't think flooding this channel would solve anything since it'd assume they actually read the complaints, and not get their list from a private discussion of interests.
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The Ultimate Anonymous Coward, 8 Feb 2013 @ 3:44am

Re: Market access?
Not only that -- "fair and equitable" market access!
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Anonymous Coward, 8 Feb 2013 @ 4:56am

this is the trouble when a body that is supposed to be promoting TRADE is really a body that is trying to PROTECT A PARTICULAR INDUSTRY OR THE INDUSTRIES OF A PARTICULAR COUNTRY and totally ignoring everything and everyone else. still waiting for something to come back and bite these self-centered bastards in the arse!
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Andrew Norton (profile), 8 Feb 2013 @ 8:55am

Re: Re: same experience
Right, thats why I do it. It's also why as soon as I send a copy in, I publish it myself. That way when comments are ignored, redacted or mangled to be unreadable (as happened with my digital britain consultation submission, where the pdf file was printed out, and then badly scanned in, skewed, with the footnotes off the edge, and the graphs blurred and de-contrasted)

It's annoying though, and there's only so many hours in the day
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