Contrary To What You've Heard, TPP Will Undermine US Law -- Including Supreme Court Decisions

from the isn't-this-a-problem? dept

Fri, Jul 31st 2015 3:05am — Mike Masnick

One of the key lines of pure unadulterated bullshit spread by the USTR concerning the Trans Pacific Partnership (TPP) agreement is that it won't lead to significant changes in US law. That's just wrong. As KEI points out, it's pretty clear that the current text would completely undermine key Supreme Court rulings concerning state sovereign immunity from intellectual property disputes. Zack Struver and Tazio De Tomassi created a short video explaining why: The specific issue is that, under the 11th Amendment to the Constitution, state governments are given "sovereign immunity" from most legal issues in federal court. And, when it comes to things like patents, the Supreme Court decided that Congress could not pass a law that takes away such sovereign immunity from the states.

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?

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Filed Under: 11th amendment, copyright, patents, research, sovereign immunity, supreme court, tpp, universities, ustr

51 Comments

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Arthur Moore (profile), 31 Jul 2015 @ 3:27am

Most likely US will be hypocrites
The thing is, that when the supreme court says you can not make that law, they mean it. Different court might rule differently, but they tend to not like it when you try to sneak through things that they've already rejected.

The end result is that, once again, the US will just not follow through with their part of treaty obligations.
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Anonymous Coward, 31 Jul 2015 @ 3:27am

Well...
According to the people you have elected to represent you: yes.

unfortunately
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Anonymous Coward, 31 Jul 2015 @ 3:28am

I'm looking at it this way:

When TPP comes in, I can still vote for whatever I want, it just won't matter a damn unless I own a multinational.
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relghuar, 31 Jul 2015 @ 3:53am

I would say USTR is absolutely right. TPP and even ISDS cannot make US change the law.
They just forgot to mention how much you'll have to pay for the privilege of keeping that law ;-)
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cpt kangarooski, 31 Jul 2015 @ 4:35am

That's not precisely true.

The 11th amendment immunity of states can be abrogated by the federal government under section 5 of the 14th amendment. But since Congress didn't specifically enact damages provisions for infringement under that part of the Constituion (as opposed to their usual Article I power) and there's not much of a history of states violating the civil rights of individuals by infringing on patents and copyrights, the immunity currently stands.
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andy, 31 Jul 2015 @ 4:42am

'Merica
So America is going into a trade agreement that they can enforce against other countries but where other countries cannot use it against the US. Seriously if any country signs up to this they deserve everything they get, or the trillions they will have to pay American big business , but where they cannot sue in kind.

Damn if any country signs up to this they are in for a big loss, bigger than any economic collapse in history as trillions will be funnelled to American industry and removed from the world economy.

I cant believe i am actually reading this article and understand it whereas world leaders are so blind to the damage they are going to inflict on their people and their economy.
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Richard (profile), 31 Jul 2015 @ 4:48am

Re: Most likely US will be hypocrites
Agreed, the US has never accepted any international trade ruling against it in the past - except when the opponent was big enough to fight back - so no reason to suspect that this will make any difference at all.
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David, 31 Jul 2015 @ 4:53am

Re:
Doesn't sound like much of a difference.
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David, 31 Jul 2015 @ 4:58am

Re: 'Merica
I cant believe i am actually reading this article and understand it whereas world leaders are so blind to the damage they are going to inflict on their people and their economy.

If they were blind to it, their bribes and/or revolving door benefits would be smaller and they would not be hiding the negotiations from their constituents.

They are voting with their own wallets, not the wallets of those they are supposed to be representing.
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Anonymous Coward, 31 Jul 2015 @ 5:02am

Re: Most likely US will be hypocrites
They could then put up a bond measure in foreign central banks. The next step would be to print up foreign currency. They would then have to pay those foreign people in foreign courts with their foreign bond/payment system.

Or, they could come to US courts and get a US ruling on the subject if they're interested in US assets in the US.

We seize foreign citizens/governments assets all the time to satisfy domestic judgements. Ask Iran.
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Anonymous Coward, 31 Jul 2015 @ 5:47am

Flatly wrong as a matter of law, and the fact KEI is hosting it undermines the organization's credibility.
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avideogameplayer, 31 Jul 2015 @ 6:10am

The TPP may not be Constitutional...

http://www.theatlantic.com/politics/archive/2015/06/tpp-isds-constitution/396389/

ht tp://www.washingtonsblog.com/2015/05/fast-track-violates-the-u-s-constitution.html

There's a chance of this being voided before it's enacted...
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Anonymous Coward, 31 Jul 2015 @ 6:28am

Re:
So like, when did you begin to notice that that Constitution has been breached and under assault? What makes you think the powers that be, give just exactly a single fucking shit?

We are not at the part were we try to figure out how to be unconstitutional, we are at the part where we are seeing how far it is going to go!
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Drive by commentor, 31 Jul 2015 @ 8:26am

this is where one world goverment starts
So this is where the New World Order really starts.

Looks like the TPP will get rushed through this week. Or at least very soon. Leadership in boih the USA and Canada need to sell out our sovereignty before it can become an election issue. All hail our new corporate world leaders.

So when do the real elections for the World Corporate Congress happen? Do shareholders get a vote or do you have to be on a Board of Directors?
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got_runs? (profile), 31 Jul 2015 @ 8:27am

TPP was always about deregulation.
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Teamchaos (profile), 31 Jul 2015 @ 8:35am

Just more hysteria from the far left.
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Anonymous Coward, 31 Jul 2015 @ 8:44am

Re: Re: 'Merica
It's a big step towards the neo-liberal agenda of lifting the market to a super-national body ('globalization'), safe from voting citizens' possible demands for social benefits, free health care, and education. Oh, and nationally bound tax authorities.
This is why the political elite has stopped even pretending to listen to the electorate. Now they just enact truly disenfranchising treaties well away from the prying eyes of the unwashed masses.
The cost of low inflation (=safe investment climate) is high unemployment, which is fine with Industry. In fact, high unemployment lower wages, so what's not to like.
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Baron von Robber, 31 Jul 2015 @ 8:48am

Re:
Well, when you're that far right, everything else is on the left.
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Anonymous Coward, 31 Jul 2015 @ 9:08am

Re: Re: Most likely US will be hypocrites
That's why these trade 'agreements' seem to be one sided dictations against the little guy.
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Teamchaos (profile), 31 Jul 2015 @ 9:25am

Re: Re:
KEI, founded by Ralph Nader, is a far left organization. Wherever you sit.
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Stephen, 31 Jul 2015 @ 9:27am

Misreading the 11th Amendment
The specific issue is that, under the 11th Amendment to the Constitution, state governments are given "sovereign immunity" from most legal issues in federal court. And, when it comes to things like patents, the Supreme Court decided that Congress could not pass a law that takes away such sovereign immunity from the states.
Is that really one of the outcomes of the 11th amendment?

As far as I can see, the 11th amendment does NOT prevent a US state being sued by its OWN citizens (or anybody else for that matter) in its OWN (ie state) courts.
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btr1701 (profile), 31 Jul 2015 @ 9:35am

Re: Most likely US will be hypocrites
> they could just go to an ISDS tribunal which wouldn't care about
> sovereign immunity.

Sure, but that's only half the process. The other (and more important) half is collecting on the judgement.

The ISDS might not care about the Constitution, but any attempt to enforce its judgments will have to be done through the U.S. courts, which presumably will care quite a bit what the Constitution requires.

> The end result is that, once again, the US will just not follow through
> with their part of treaty obligations.

Right, and in this case that's a good thing. No treaty should ever be given superiority over or allowed to undermine the Constitution itself.
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Anonymous Coward, 31 Jul 2015 @ 10:08am

This sounds like it could end public libraries.
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Eric L., 31 Jul 2015 @ 10:14am

Re:
Do you have an actual point to make?
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Anonymous Coward, 31 Jul 2015 @ 10:44am

Re: Re: Re:
"Far left" = the organization holds positions with which I disagrees but will not attempt to engage on substance. But please, keep shilling for USTR!
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nasch (profile), 31 Jul 2015 @ 11:20am

Re: Re: Re: 'Merica
It's a big step towards the neo-liberal agenda of lifting the market to a super-national body ('globalization'), safe from voting citizens' possible demands for social benefits, free health care, and education.

Sounds more like fascism. I assume "neo-liberal" means "policies I don't like"?
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Uriel-238 (profile), 31 Jul 2015 @ 11:22am

Re: this is where one world goverment starts
This isn't world rule. This is chopping up the world into bunches of tiny warlord kingdoms. Only the kingdoms are corporations instead of territorial monarchies.

Once the power of the nations are nullified, the corporations will be happy to wage war upon each other, sometimes literal war with real guns and tanks and bombs and infantry.

This is a return to plutocratic feudalism.
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nasch (profile), 31 Jul 2015 @ 11:22am

Re: Misreading the 11th Amendment
"As far as I can see, the 11th amendment does NOT prevent a US state being sued by its OWN citizens (or anybody else for that matter) in its OWN (ie state) courts."

"The specific issue is that, under the 11th Amendment to the Constitution, state governments are given "sovereign immunity" from most legal issues in federal court."

I've emphasized the relevant sections.
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Uriel-238 (profile), 31 Jul 2015 @ 11:35am

In an ideal world...
I'm not sure that sovereign immunity should be the defense for using IP for innovation and development.

Considering that the whole patent / copyright thing is to promote science and useful arts there should be protections for violating the temporary monopoly that these offer when doing so also promotes science and useful arts.

By placing defense of activities according to the intention, we don't have to rely on the laboratories being part of a state-sponsored (and therefore protected) university. Everyone should be allowed to tinker.
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Anonymous Coward, 31 Jul 2015 @ 11:42am

Re: Re: Re: Re: 'Merica
I think neo-conservative and neo-liberal are both synonyms for "corporate oligarch," the only difference being that neocons drive Bentleys equipped with rocket launchers, while neo-libs drive Maybachs that sport "Think Globally, Act Locally" bumper stickers.
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JoeCool (profile), 31 Jul 2015 @ 11:46am

Re: Re: Re: Re: 'Merica
Nope! Liberal is now used to refer to libertarianism, which is now defined as corporatocracy and cronyism. Since it's the CURRENT or new definition, that means neo. So Neo-Liberal is the right label for this.
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Anonymous Coward, 31 Jul 2015 @ 12:07pm

Re: Re: Re: Re: Re: 'Merica
And right-libertarians are now "anarcho-capitalists," left-libertarians are "anarcho-socialists," and center-libertarians are "minarcho-paradoxical-objectivists"... or something like that.
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Uriel-238 (profile), 31 Jul 2015 @ 12:18pm

As a (raging) liberal...
My positions tend to lean towards social liberties, social equality and diffusion of wealth and power.

I'm pretty sure these are the bits that differentiated the nation our constitutional framers were trying to form from the prior monarchies. Even the constitutional monarchy that was England.

The problem we've been having is making sure everyone gets their share, and preventing the system from reverting to centralized power, since that's the direction the ball always rolls.

(The US Republic was a short step from feudal monarchy. We didn't expect it to work perfectly).
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nasch (profile), 31 Jul 2015 @ 12:58pm

Re: Re: Re: Re: Re: 'Merica
Liberal is now used to refer to libertarianism

According to whom? I have never heard that. Or was that a joke?
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Anonymous Coward, 31 Jul 2015 @ 1:02pm

Re: In an ideal world...
*** Chortle ***

Man, what world have you been living in? IP hasn't been about promoting anything useful since at least Edison (famed serial patenter). Look at how patents delayed the start of powered aviation. The whole "promoting progress" thing has been the *Justfication* for harmful artificial monopolies but not the actual reason, not for a long time.

Another favorite myth of the maximalists is that nobody will spend the money to innovate and invent without the lure of patents - despite plentiful real world evidence that this isn't true and that IP is far more often used to impede progress than promote it.
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Anonymous Coward, 31 Jul 2015 @ 1:18pm

What's really needed for free trade...
The problem with the ISDS mentality is that it tries to implement a fair trading environment by enforcing a uniform trading environment. This leads to "free trade" treaties (actually not free in any meaningful sense - a more accurate description would be "managed trade" treaties) trying to impose a uniform legislative regime on all parties. This not only erodes sovereignty, it is neither moral nor necessary. What is needed is a simple non-descrimination clause, where foreigners are subject to exactly the same restrictions (and incentives) as local corporations. National markets differ, even regional ones do, this is no different. If companies find it too difficult to adapt, they don't deserve the business.

I am a firm believer in free markets, but ISDS has nothing to do with free markets, it is all about making the lives of overpaid executives (current pay, 300 - 400% of average pay in their enterprise, compared to a historical norm or 50-60%, IIRC) easier, by removing other peoples natural rights.
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Uriel-238 (profile), 31 Jul 2015 @ 1:23pm

Apparently you didn't notice the "In an ideal world" caveat.
In the real world, the current regime needs to be replaced, by force if necessary, even considering the possibility of the loss of life and infrastructure.

And we'd be better off with IP abolished than with what we have.
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Anonymous Coward, 31 Jul 2015 @ 11:56pm

Re: Re: Most likely US will be hypocrites
It will also ramp up the hatred against the US, as it uses it might to enforce judgements against other countries.
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Vikarti Anatra (profile), 1 Aug 2015 @ 2:42am

Re: Re: Most likely US will be hypocrites
>> they could just go to an ISDS tribunal which wouldn't care about
>> sovereign immunity.

>Sure, but that's only half the process. The other (and more >important) half is collecting on the judgement.

>The ISDS might not care about the Constitution, but any attempt to >enforce its judgments will have to be done through the U.S. courts, >which presumably will care quite a bit what the Constitution requires.

Are you sure? U.S. companies have property in other countries and those other countries may decided that ISDS decision is more important than U.S. Constitution (after all U.S. signed TPP)
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Clare Love, 1 Aug 2015 @ 3:52am

Re: Re: Re: Re: Re: 'Merica
Is that the neo-libertarianism? I am totaly confused.
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GEMont, 1 Aug 2015 @ 1:54pm

The POTUS destroys The US Constitution...
"Do we really want the USTR completely wiping out part of our Constitution..."

Well, just for the sake of argument, lets say, No! "We" do not want the USTR completely wiping out any part of the Constitution, for any reason whatsoever.

The real question then becomes, just what can "we" do to stop them, if the whole deal slides into home on friction-free Fast Track - compliments of the POTUS - and everything about the deal is a 150% secret and the public has absolutely no say in the matter at all - either in the creation of the contents of the "deal", or in the control of the "deal" after its done, and has no power to put and end to the deal once it becomes law, (*)should it prove detrimental to the US public??

That's a question I'd like to see even a partial answer to.

(*) yeah, that part was sarcasm. :)

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Uriel-238 (profile), 1 Aug 2015 @ 2:33pm

Something I'm not clear on...
How can anything wipe out the consititution?

Even if the president, who now has the power to pass law through fast-track trade authority, implements the TPP, he doesn't have the power to amend the US Constitution. And SCOTUS can still rule that elements of the TPP are unconstitutional, yes?

For this to not be would be to nullify one of the checks that SCOTUS has over law, in which case the US Constitution is broken already, or rather Fast Track itself may be ruled unconstitutional by any court.

I'm not sure if a law or method that is ruled as unconstitutional can retroactively affect changes (If a man is in prison for violating a crime later ruled unconstitional, is he freed or does he continue to rot in prison?) So if TPA is rendered unconstitional would that nullify any ratification of TPP via the TPA?

The fact that the TPP remains secret from the public and will do so until -- and even after -- it is passed has opened an asp basket of problems. This form of secrecy should delegitimize the TPP as a trade agreement that the US can enter into, and that it doesn't makes for a critical hack of the US Constitutional separation of powers.

Of course, IMNAL, but if I need to be a lawyer to understand how the Constitution can be hacked, something is critically wrong.
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Bergman (profile), 1 Aug 2015 @ 7:40pm

Re: Re: Re: Most likely US will be hypocrites
Yeah, the US is going to sign TPP -- but the authority to ratify it is in the hands of Congress who cannot override the Constitution without passing a Constitutional amendment AND getting enough of the states to ratify it.

Without a Constitutional amendment, the federal law created by the treaty would be unconstitutional, and therefore null and void under US law.

We may wind up the subject of trade embargoes and sanctions, but the fact remains that some things are simply not possible under our laws, regardless of what foreign laws say.
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Bergman (profile), 1 Aug 2015 @ 7:42pm

Re:
It doesn't take much to be a multinational corporation. Just file the paperwork somewhere outside US borders, pay the fees...and then you too can be immune to US law just by convincing an ISDS tribunal that you should be.
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Bergman (profile), 1 Aug 2015 @ 8:15pm

Re:
Yeah, but it would be EXTREMELY hard to construe governmental sovereignty -- functioning exactly as the constitution defines it -- as somehow denying a citizen their rights under the constitution or as insurrection against the government.
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Bergman (profile), 1 Aug 2015 @ 8:25pm

Re: Re: this is where one world goverment starts
Look on the bright side though. If a corporation has the same sort of sovereignty a nation does, then they have the bad with the good.

How many corporations have B-52s? How many could withstand a bombing raid on their HQ?

The Geneva Conventions define what a lawful combatant is, and corporations count as civilians at the moment. But once they are sovereign entities, a lawful combatant could legitimately wage war against them, as they would no longer be considered civilian, any more than a government official is.
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Bergman (profile), 1 Aug 2015 @ 8:28pm

Re: Misreading the 11th Amendment
State courts enforce state laws, not federal laws.

Ratified treaties are federal laws. A foreign company has no standing to sue in state court.
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Bergman (profile), 1 Aug 2015 @ 8:31pm

Re: Something I'm not clear on...
SCOTUS has ruled that an unconstitutional law is unconstitutional from inception, not the moment it is successfully challenged. In the example you gave, a convict would be freed.
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GEMont, 2 Aug 2015 @ 10:43am

Re: Something I'm not clear on...
I assume that the term "completely wiping out" does not mean actually erasing the words from the pages of the Constitution, but rather, simply rendering them null and void, as far as having any legal influence on decisions made by government, through repurposing the words.

I believe however, that any secret reinterpretation of any part of the Constitution will thus "completely wipe out" the designed effectiveness of that part, in much the same manner as actually erasing that part from the pages of the constitution.

The simple facts that (1) POTUS did a work-around via Fast Track legislation, for a (2) secret trade deal that affects the "laws of the land" of many lands including America, means that the Constitution has already been compromised beyond redemption in order to prevent any future finding of the new laws that the deal creates, or the old laws that the deal alters, as unconstitutional.

Its is perhaps for this very reason that corporate America hired a constitutional scholar for the job of POTUS.

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Wendy Cockcroft, 5 Aug 2015 @ 5:52am

Re: Re: Re: Re: Re: Re: 'Merica
https://en.wikipedia.org/wiki/Neoliberalism

You're all welcome.
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Wendy Cockcroft, 5 Aug 2015 @ 5:54am

Re: Re:
Something on the order of "Corporatism is AWESOME and I get a slice of the cake!"
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