Former NSA Directors Coming Out Strongly *Against* Backdooring Encryption

TPP Also Locks In Broken Anti-Circumvention Rules That Destroy Your Freedoms

from the sad-to-see dept

Wed, Oct 7th 2015 11:46am — Mike Masnick

We already wrote about how New Zealand has released some of the details about the finalized TPP agreement before the official text is released. The one we discussed is forcing participants into a "life plus 70 years" copyright term, even as the US had been exploring going back towards a life plus 50 regime like much of the rest of the world. That won't be possible any more.

Another issue revealed in the New Zealand announcement is that the TPP will similarly lock in an anti-circumvention clause. In the US, we have a really problematic anti-circumvention law in Section 1201 of the DMCA, which says it's against the law to circumvent "technological protection measures" even if for reasons that are perfectly legal and non-infringing. This has created a huge mess that threatens innovation in all sorts of problematic ways. It takes away our freedom to tinker with devices that we own. It also makes it illegal to do things that pretty much everyone agrees should be perfectly legal.

Earlier this year, some in Congress introduced a bill to fix Section 1201. However, that may not be possible after the TPP is agreed to. Again, the details matter, but here's what New Zealand has to say about this issue:

New Zealand has, however, agreed to extend its existing laws on technological protection measures (TPMs), which control access to digital content like music, TV programmes, films and software. Circumventing TPMs will be prohibited but exceptions will apply to ensure that people can still circumvent them where there is no copyright issue (for example, playing region-coded DVDs purchased from overseas) or where there is an existing copyright exception (for example, converting a book to braille).

So, yes, it appears there will be certain exceptions allowed, but again that gets the equation entirely backwards. At best, circumvention should be considered legal as the default, and the problem should only come in if the circumvention was done for the purpose of actual infringement. Starting from the position of "no circumvention" and then backdooring in "exceptions" massively hinders innovation by requiring permission before certain innovations are allowed.

Given how important this kind of innovation has been for the tech sector, it's disappointing in the extreme that the USTR has decided to lock this in and block all kinds of important innovations from moving forward. Once again, the USTR seems focused on protecting legacy industries while hamstringing innovative industries.

TPP Q&A Oct 2015 (PDF)TPP Q&A Oct 2015 (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1201, anti-circumvention, dmca, dmca 1201, freedom to tinker, new zealand, tpp, ustr

45 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Shmerl, 7 Oct 2015 @ 12:04pm

USTR is simply the DRM lobby frontend
The question is, who elected USTR and why do they have such power to draft agreements which shape laws? It's like having another legislative branch, except one with no oversight, which is obviously prone to corruption.
[ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 2:04pm
  
  Re: USTR is simply the DRM lobby frontend
  And not only that, they've been strong-arming all the other TRs in the world to their bidding. So they are technically the most powerful people in the world. Maybe we should at least give them and their actions a bit more visibility?
  
  On another note: I need to take a closer look at the DMCA anti-circumvention clause. Seems to me that it should be possible for me to use that text to my advantage, creating a system where anyone attempting to foist DRM on me is circumventing my technological protection mechanisms by blocking access to my data.
  [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 2:18pm
    
    Re: Re: USTR is simply the DRM lobby frontend
    Sounds great. Now all you have to do is buy enough government to enforce your plan. Hope you've got a few billion dollars laying around.
    [ link to this | view in chronology ]
- Whoever, 7 Oct 2015 @ 2:17pm
  
  Re: USTR is simply the DRM lobby frontend
  The question is, who elected USTR
  
  The USTR isn't elected, but appointed. The USTR represents the executive branch -- in other words, what the USTR has put into the TPP is Obama's policy.
  [ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 3:25pm
  
  Re: USTR is simply the DRM lobby frontend
  Congress decided to give them fast-track authority. Congress does, however, still have to approve it for it to take effect. Most (but not all) Republicans tend to like this sort of thing, and Democrats will be pressured by Obama to support it to make up for any Republicans that don't.
  [ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 4:15pm
  
  Re: USTR is simply the DRM lobby frontend
  1. Guys with guns looking at us.
  
  "their friends in Hollywood and the entertainment industries never had to do a fucking thing again to earn a living"
  2.This is why I'll never watch any hollywood movies or terrible generic law and order/sitcom/tv-cable dramas ever again, no tv broadcasts, no theater, no dvds, no netflix. It helps I already hate 99% of the fuckers who make the crap.
  
  3.Question: When are we fucked? I keep hearing different info: tpp will be in effect this year, february 2016, mid-late 2016 or even 2017-2018. Which is it, please explain to me.
  [ link to this | view in chronology ]
NeghVar (profile), 7 Oct 2015 @ 12:12pm

supreme court
If if does pass, can the SCOTUS challenge its legitimacy, constitutionality. This partnership is being used to write laws which only congress is permitted to create and then the President signs or vetoes. The TPP is technically illegal in numerous ways.
[ link to this | view in chronology ]
- NeghVar (profile), 7 Oct 2015 @ 12:29pm
  
  Re: supreme court
  Or does the TPP have the power to override SCOTUS? Can a country, via investor-state dispute settlement (ISDS), override a SCOTUS ruling?
  [ link to this | view in chronology ]
  - AJ, 7 Oct 2015 @ 12:32pm
    
    Re: Re: supreme court
    God help us if the answer is yes.
    [ link to this | view in chronology ]
    - Anonymous Coward, 7 Oct 2015 @ 1:39pm
      
      Re: Re: Re: supreme court
      If I understood it correctly then, yes. Because the parties involved use TTP to argue their case and not national law. And since all nations agreed to TTP you can't argue that it doesn't count.
      In case you are familiar with EU law then this is more or less the same. The EU can make a law and the countries have to follow it or the other way around they aren't allowed to make a law because it is against EU law.
      [ link to this | view in chronology ]
    - Gordon, 8 Oct 2015 @ 7:05am
      
      Re: Re: Re: supreme court
      The answer is yes. This is the framework of a global fascist government meant to collectivize all of us under one corporate/banking jackboot and destroy the nation state.
      [ link to this | view in chronology ]
      - Wendy Cockcroft, 9 Oct 2015 @ 6:25am
        
        Re: Re: Re: Re: supreme court
        Yep, that's what it looks like to me.
        [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 12:41pm
    
    Re: Re: supreme court
    
    Wrong question; the problem is that a company can either get the law changed, or get compensation for lost and expected future profits via ISDS. They in effect put companies above countries.
    [ link to this | view in chronology ]
    - Anonymous Coward, 7 Oct 2015 @ 3:37pm
      
      Re: Re: Re: supreme court
      It's also the wrong question because it assumes the SCOTUS and other representatives aren't bought. If they are bought they can then pretend that they can't do anything about a potential problem because they need to meet their international obligations. That way they can pawn the blame for their unwillingness to meet their public responsibilities (due to really being bought) onto something allegedly outside of their control.
      [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 1:15pm
    
    Re: Re: supreme court
    SCOTUS can always TRY to override, but even SCOTUS can be beaten if the Executive and Legislative branches fights against the ruling. Any 2 branches can force the other branch into submission.
    
    The better question is "Would" SCOTUS attempt to rule on it? You might find that SCOTUS own track record on the constitution is pretty fucking weak as they have already dissembled the meaning of what "reasonable" is in regards to the 4th amendment. They have already successfully rewritten the English language to mean something it does not because they simply have that power, and no one fights them on it.
    [ link to this | view in chronology ]
    - PRMan, 8 Oct 2015 @ 7:50am
      
      Re: Re: Re: supreme court
      Like "marriage" for instance. All definitions up until 50 years ago included a man and a woman.
      [ link to this | view in chronology ]
      - PRMan, 8 Oct 2015 @ 7:51am
        
        Re: Re: Re: Re: supreme court
        Oh, I'm sorry.
        
        Or is it only a bad thing when they do it for something you're NOT in favor of?
        [ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 1:02pm
  
  Re: supreme court
  1) If this is a treaty then Congress must ratify it for it to have any legal standing in the US.
  
  2) Even if it does have legal standing in the US it may be possible for a court to rule against an individual provision in an individual case so long as the activity therein does not cross US borders and does not involve non-US entities. The analogy here is the various mandatory sentencing laws the US has enacted the past few decades. AFAIK the concept and doctrine of mandatory sentencing has never been declared unconstitutional. But there have been individual cases where the sentence imposed under a mandatory sentencing law has been declared "cruel & unusual" and the case remanded for resentencing.
  
  In case you're wondering how this treaty could apply to a completely internal activity: any country that ratifies this will find a few of their internal laws inadequate or even non-compliant, so they will have to change their laws. As a "bloody yank" there are a few laws I'd like to see changed, but this way is not how to do it.
  [ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 2:30pm
  
  Re: supreme court
  Dunno. Is SCOTUS even allowed to see the text?
  [ link to this | view in chronology ]
Anonymous Coward, 7 Oct 2015 @ 12:39pm

we must fight this deal with everything we have!

don't give up! help us fight this!
[ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 1:42pm
  
  Re:
  I dare to say it is pretty much a done deal, it was from the begining, sadly.
  [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 2:46pm
    
    Re: Re:
    Its not a done deal far from it
    [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 11:09pm
    
    Re: Re:
    It's only a done deal if everyone signs it.
    
    So, it's time to apply pressure onto the potential signatories.
    [ link to this | view in chronology ]
Anonymous Coward, 7 Oct 2015 @ 12:42pm

Someone can correct this if I'm wrong, but I *believe* the Supreme Court could rule that, say, a specific provision of the TPP violates the first Amendment.

That provision would then be inapplicable in the US as unconstitutional.

With John Roberts running the court right now, I will not opine about how probable this outcome is.

I am just saying that I believe it is technically possible.
[ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 1:18pm
  
  Re:
  You are not wrong, the 2nd problem you mentioned is the problem. A lot of justices on SCOTUS really don't give a shit about you when their corporate masters come calling, party be damned.
  [ link to this | view in chronology ]
- Anonymous Coward, 8 Oct 2015 @ 5:44am
  
  Re:
  If any government rules against the FTA
  they must pay to the affected corporation
  compensations for lost and expected future profits
  FOREVER,
  or until the rule is changed in favor of the affected corporation.
  [ link to this | view in chronology ]
Wyrm (profile), 7 Oct 2015 @ 12:45pm

Just no...
"At best, circumvention should be considered legal as the default, and the problem should only come in if the circumvention was done for the purpose of actual infringement."
No, not even that.
In that case, you sue for infringement, not "circumvention of protection in the purpose of infringement", and definitely not "circumvention of protection - period".

This has been the worst case of law-writing by far in the domain of copyright, with side-effects in domains normally unrelated to copyright.

You do not charge someone with specifically "breaking a lock" when you already charge him with "breaking and entering". You do not charge someone with "using a gun to kill someone" when you charge him with "murder". In general, you don't sue someone for "committing a crime" and "use a specific method to commit said crime".
[ link to this | view in chronology ]
Anonymous Coward, 7 Oct 2015 @ 1:08pm

and which industries were the start of this shit? and which country's politicians fell over themselves, hands out to receives the rewards, to ensure their friends in Hollywood and the entertainment industries never had to do a fucking thing again to earn a living? good ol' USA! thanks so much for screwing the world even when it's been paid for!!
[ link to this | view in chronology ]
Doug (profile), 7 Oct 2015 @ 1:31pm

My front door
Anti-circumvention is like saying it is illegal for me to break my own front door (say, if I locked my keys in the house). It may be illegal for me to break down someone else's door, but I can kick in my own door if I want. Same should go for my digital goods.
[ link to this | view in chronology ]
- NeghVar (profile), 7 Oct 2015 @ 1:33pm
  
  Re: My front door
  Same with your car
  [ link to this | view in chronology ]
- Bamboo Harvester (profile), 7 Oct 2015 @ 1:37pm
  
  Re: My front door
  Actually, if you have a digital or electronic lock on your front door, this DOES make it illegal for you to "circumvent" the lock...
  [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 1:45pm
    
    Re: Re: My front door
    Man arrested for breaking into his own house.
    Oh, I can't wait *gets popcorn*
    [ link to this | view in chronology ]
  - Anonymous Coward, 7 Oct 2015 @ 1:52pm
    
    Re: Re: My front door
    I think he realizes that and was just pointing out what a grievous human rights violation it is.
    [ link to this | view in chronology ]
Doug (profile), 7 Oct 2015 @ 1:40pm

Politicians are accountable to industry
The fundamental problem here is that politicians are not accountable to the voters. They are accountable to industry.
That's why so much of the TPP protects legacy players in user-unfriendly ways.

There may be a short-term solution in the form of public outrage and such. If so, count me in. The long-term solution is to find a way to get politicians to be accountable to voters again. I think it is real campaign finance reform. But whatever, if you care about things like the TPP (or any other similar issue), what you should really care about first is fixing campaign finance. You can't get politicians to fix anything in favor of voters until they feel accountable to the voters.
[ link to this | view in chronology ]
Blackfiredragon13 (profile), 7 Oct 2015 @ 4:08pm

What's next?
Is it going to turn out fair use is illegal? Because seriously, WTF.
[ link to this | view in chronology ]
- Anonymous Coward, 7 Oct 2015 @ 4:18pm
  
  Re: What's next?
  basically, bye brainscratch, teamfourstar, roahmmythril, littlekuriboh and others. I assume chuggaaconroy, pewdiepie and game grumps are popular enough that youtube will protect them.
  [ link to this | view in chronology ]
Charles Roth (profile), 7 Oct 2015 @ 5:58pm

TPP and greenvelope.com
I just received a "mail.whitehouse.gov" email (which I usually appreciate), from Sam Franklin, apparently the founder of greenvelope.com, extolling the virtues of the TPP.

I immediately wrote back to the only direct contact I could find for him (info@greenvelope.com), calling "foul" on his white-wash.

I encourage others to do the same. If I actually get a better address for him, I will post it here.
[ link to this | view in chronology ]
Charles Roth (profile), 7 Oct 2015 @ 6:01pm

TPP and greenvelope.com
Hmm, sam@greenvelope.com didn't bounce. Might try that.
[ link to this | view in chronology ]
Anonymous Coward, 7 Oct 2015 @ 10:13pm

What does this have to do with "trade"?
[ link to this | view in chronology ]
- That One Guy (profile), 7 Oct 2015 @ 10:47pm
  
  Re:
  Oh but it has everything to do with trade. You see, how it works is the negotiators trade away the public's rights, and in exchange, they get large 'donations' and lucrative 'job offers'.
  
  So you see, there's plenty of trade going on.
  [ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2015 @ 6:53am

When the current Internet is finally destroyed, even Techdirt won't escape.
[ link to this | view in chronology ]
- Anonymous Coward, 8 Oct 2015 @ 5:49pm
  
  Re:
  it will never be destroyed
  [ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2015 @ 7:06am

People have far too much respect for the legal industry. Simply ignore those laws that make no sense.
[ link to this | view in chronology ]
Anonymous Coward, 8 Oct 2015 @ 9:40am

How about 50 years total for copyright?
Let's go life, plus a term not to exceed a total of 50 years. I could (grudgingly) live with that. It's better than what we have now. Actually, I'd be okay with the US copyright that way, even if the rest of the world goes to life plus 70. Unless we pass the TPP, their copyright terms wouldn't affect us.
[ link to this | view in chronology ]
Hank, 8 Oct 2015 @ 10:16am

TPP
TPP, yet another violation of our rights. The gov’t constantly violates our rights.
They violate the 1st Amendment by banning books like “America Deceived III”.
They violate the 2nd Amendment by banning guns.
Both parties are lawless.
Last link of “America Deceived III” before it is completely banned:
http://www.amazon.com/America-Deceived-III-E-Blayre-ebook/dp/B016BV09MK/

End the TPP
[ link to this | view in chronology ]