A Mix Of Good And Bad Ideas In NAFTA Replacement

from the not-great,-but-some-useful-concepts dept

Tue, Oct 2nd 2018 10:46am — Mike Masnick

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

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Filed Under: biologics, canada, cda 230, copyright, copyright term, intermediary liability, mexico, nafta, notice and notice, notice and takedown, section 230, trade agreements, usmca

43 Comments

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Anonymous Coward, 2 Oct 2018 @ 10:52am

bullshit...
"it's not at all clear why"

It has always been clear... DAMN CLEAR!

How many times do I have to tell you that Hanlon's razor is the opiate of pseudo-intellectuals?

It's government the opposite of Hanlon's razor applies! Government is up to no good, it has never NOT been up to no good. It's only end objective is no good and as much as you love government... it's just no good!

government has to be reset from time to time as part of "eternal vigilance" to clean it out of corruption. The idea that you can keep it good is a total con.
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Stephen T. Stone (profile), 2 Oct 2018 @ 10:59am

government has to be reset from time to time

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Who do you wish to spill their blood first, and by whose hand should that blood be spilt?
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Gary (profile), 2 Oct 2018 @ 11:01am

Re: bullshit...
The idea that you can keep it good is a total con.

Then take off your tinfoil hat and get moving Mr. Revolutionary.
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Bamboo Harvester (profile), 2 Oct 2018 @ 11:03am

It'll change
NAFTA is *law*, not Treaty. The same for the "new" changed agreement.

Congress will have to vote it into Law.

Anyone ever seen them do that without adding six hundred amendments?

There's some weird other things in the new Agreement as well - like opening up Canada's Dairy production to the US. WHY? Milk is heavily subsidized in the US. The last thing we need is MORE milk coming in. Coals to Newcastle...
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Anonymous Coward, 2 Oct 2018 @ 11:12am

Superbowl commercials

Canada actually did cave to U.S. pressure by agreeing to change its broadcast policy. In 2016, the CRTC [allowed] for the U.S. signal to air in Canada with the commercial intact. Bell, the broadcast rights holder, and the NFL objected with multiple appeals and court cases.... In Annex 15-D, Canada agreed to rescind the CRTC policy

What's happening here? Canada decided to allow American commercials... then the NFL objected, and the USA forced Canada to allow (but not require) replacing the commercials? I'd have expected the Americans to be against that.
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F Reese Trade, 2 Oct 2018 @ 11:13am

People are supposed to trade "money" for "products".
> Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements,

Evidently your parents blew all that money on your McEducation. Big party school, was it? You were a legacy and got a "free" pass? Economics in college is just rephrasing what your prof says, at best.

Cause it's CLEAR to me that people are supposed to BUY our products, exchanging some value... OH, RIGHT! You still believe that all content can be given away for FREE! Yet, entire industries can pay big money to make products, and then SOMEHOW get it back charging just above bandwidth at most, selling T-shirts or advertising, or something, pink unicorns lead to pots at end of rainbow: you're vague on all after "FREE".
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Anonymous Coward, 2 Oct 2018 @ 11:15am

Re: People are supposed to trade "money" for "products".
Oh look, more lying.
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Jason, 2 Oct 2018 @ 11:20am

though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least something that is pronounceable)

You're missing the subtext. "US" needed to be first, and Canada needed to be last. Let's not forget the seeming sidelining of Canada until the very end of the process.

I can't think of any rational reason that things needed to go down this way, but I'd be willing to bet that someone considered the exact name of the new "deal" to be really important.

Either that or "United States Owes Nothing To Other People" was already taken.
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Anonymous Coward, 2 Oct 2018 @ 11:25am

"called the USMCA Agreement"
Mike, why don't you tell the class what the A in USMCA stands for?
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crade (profile), 2 Oct 2018 @ 11:32am

Re: People are supposed to trade "money" for "products".
Evidently your parents [blah blah blah idiotic insults etc]

So yeah your statement doesn't apply to things that are infinitely reproducible.

Trying to force people to buy such things is not exchanging value because you aren't providing any value. When something is infinitely available, you have to work to *prevent* people from getting it rather than work to provide it. You are providing the opposite of value. You are charging to "not be a hindrance" and we are better off without you.
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Anonymous Coward, 2 Oct 2018 @ 11:48am

Re: It'll change
Under TPA they cannot. Congress has 90 days to review it and then vote in an "All Or Nothing" deal. No amendments.
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FUCK.LAZYhollywood, 2 Oct 2018 @ 11:54am

yup there goes star trek the orginal series
and im done with trek , star wars and every other major ip , im done with it all , not a single dime from me ever...
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justok (profile), 2 Oct 2018 @ 11:56am

Re:
America.
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ECA (profile), 2 Oct 2018 @ 12:19pm

Something BETWEEN THE LINES..
Not SAID here is the fact that the RIAA/MPAA has been running around the world, CREATING, other small companies that are TRYING to get STUFF happening in every region of this planet..

NOW they are trying to consolidate.. ALL OF IT..
Which means..
COPYRIGHTS in 1 nations are the same AROUND THE WORLD..
Insted of one country have Their OWN rules, or NO RULES AT ALL... if you have an OLD tape from India recorded by Musicians THERE...you CANT play it over here.. THEIR CR was not covered here..they had no rights in this country.

So, NOW they are trying to get ALL the music and movies PROTECTED, by RIAA/MPAA.. WHAT A HAUL.. If they can get Bollywood.. If you Recorded or Brought a Copy to the USA, you will NOT be able to use it..
If you show it, you can goto jail..(look up region codes)

How many shows have come DIRECT from Canada?? how many TV series have the USA copied from other nations??
WHO is the middle man, taking Peniies from EVERY show ever made??
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Anonymous Coward, 2 Oct 2018 @ 12:20pm

Re:
Now that is a damn good question, but your question shows that you are dishonest.

Ask BLM who spilled blood first? Because according to your question you obviously hold that no blood has been yet spilled.
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Anonymous Coward, 2 Oct 2018 @ 12:23pm

Re: Re: bullshit...
I do what I can, but it must be without coercion, we need to get people to willingly recognize the problem and alter the government by massively changing the players through symbolic voting, though it does appear very unlikely at this point in time.

Revolutions can be peaceful and if you think I wear a tinfoil hat then you must be very satisfied with how things are going right now. Are you?
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Bamboo Harvester (profile), 2 Oct 2018 @ 12:25pm

Re:
Anthem. United States Marine Corps Anthem.

From the Halls of Montezuma....
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Aaron Walkhouse (profile), 2 Oct 2018 @ 1:12pm

Re: Superbowl commercials
Selling a second set of ads creates more profit for networks and ad publishers.
Tailoring a second set of ads to a second market creates more profit for retailers.
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Anonymous Anonymous Coward (profile), 2 Oct 2018 @ 1:26pm

Re: Re: Superbowl commercials
If Techdirt, for example, embeds a Twitter comment, and shows ads, how does Twitter get more money? Techdirt get money from the ads they show, but don't pay Twitter for the embed.

Now if they merely link to the Twitter feed and someone clicks on that link, they go to a Twitter page and then Twitter gets another 'ad' view whether that client looks at the ad or not. Seems like there is a better advantage to Twitter to make people link rather than embed. Oh, and there is no third (or would it be fourth?) party involved.
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ShadowNinja (profile), 2 Oct 2018 @ 1:34pm

So... if in theory the SCOTUS ever ruled that provisions in an enacted trade agreement were unconstitutional and struck them down, what would happen then?

I mean there's arguments about parts of copyright law/etc. being unconstitutional, such as for being too long, censoring 1st amendment protected free speech, or having fines for violating it that are disproportionately large for such a minor offense.

I mean clearly the SCOTUS would step in if for example the US signed a trade agreement that said that criticizing the president or foreign leaders was a jail-able offense. They wouldn't just say "well, can't do anything about that one since we agreed to it in a trade agreement with France, sorry free speech advocates".
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Anonymous Coward, 2 Oct 2018 @ 1:48pm

Re: Re: Re: Superbowl commercials

If Techdirt, for example, embeds a Twitter comment, and shows ads, how does Twitter get more money?

The difference with the Superbowl is that the NFL sells foreign licenses, and can mandate a cut of any ad profits. If Twitter were selling embedding rights, they could do the same.

Of course, the NFL could do that without any legal changes. But then Canadians could choose: watch a Canadian channel with Canadian ads, or an American channel with American ads. Evidently nobody chooses the Canadian ones. (Canadian cable packages all provide the major American broadcast networks, plus many Canadians are close enough to receive American broadcasts. But if Canadians try watching the next Superbowl on cable, they'll see the American channels completely replaced by Canadian ones.)
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Anonymous Coward, 2 Oct 2018 @ 2:29pm

Re: yup there goes star trek the orginal series
Hey Jim, what do you like to watch? I loved M*A*S*H back in the day.

"NOTHING BECAUSE COPYWRONG STOLE IT ALL I DON'T PAY FOR SHIT ANYMORE"
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Anonymous Coward, 2 Oct 2018 @ 2:47pm

Re: Re:
Let me ask ... how did those BLM folk get into this country anyways?
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Anonymous Coward, 2 Oct 2018 @ 2:48pm

Re: Re: Re: bullshit...
November is right around the corner.
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Anonymous Coward, 2 Oct 2018 @ 2:50pm

Re: It'll change
Does it make Mexico pay for the wall?

- LOL - the biggest Trump campaign promise and where is it?
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Anonymous Coward, 2 Oct 2018 @ 2:51pm

Re: Superbowl commercials
Prob some copyright issue - some one was not getting a piece of the action.
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Anonymous Coward, 2 Oct 2018 @ 2:52pm

Re:
USMCA .. to sung to the tune of YMCA
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Stephen T. Stone (profile), 2 Oct 2018 @ 2:53pm

Re: Re:
How (and why) the hell did you jump from “who should be hurt or killed so we can reset the government” to Black Lives Matter?
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Stephen T. Stone (profile), 2 Oct 2018 @ 2:55pm

if you think I wear a tinfoil hat then you must be very satisfied with how things are going right now

I can both think you sound like a crazy person and hate the living hell out of the crazy person running this country. One does not preclude the other.
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Bamboo Harvester (profile), 2 Oct 2018 @ 3:08pm

Re:
Same as any contract with a clause later found to be illegal. That clause is no longer enforceable.
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Aaron Walkhouse (profile), 2 Oct 2018 @ 5:30pm

Re: Superbowl commercials
This is not embeds, it's different feeds for each market.

If Techdirt splits the audience for each nation that browses
the site and shows ads customized to each national audience
then it gets more ads, more ad revenue, and local sellers
earn more money from local audiences. Everybody wins.

For a small business like Techdirt it wouldn't amount to
much at all but multi-billion dollar whales like the NFL
can make this lobbying effort well worth their while.

[ No charge for the idea, Mike. ‌‌ It's too easy. ; ]
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kv, 2 Oct 2018 @ 6:25pm

super bowl ads
personally, if i was a superbowl fan and a bell subscriber i would thank bell for fighting so hard to take away something i like by finding another service provider even tho that other provider couldn't run the original ads either. that is if i can't do without certain channels that can't be received with an antenna. i'd also get an antenna so i could watch the programming i want. we should also have a law here similar to one in the us that states that no one can tell you that you're not allowed to put up an antenna.

https://www.fcc.gov/media/over-air-reception-devices-rule

/my opinion.
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Kevin Hayden, 2 Oct 2018 @ 6:51pm

Does USMCA conflict with SESTA/FOSTA?
Ho will the US congress be able to sign off on USMCA with this language in it:

"no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information."

Doesn't SESTA/FOSTA make computer services liable for content related to trafficking? If so how can the conflict be resolved? Will Congress have to drop SESTA or refuse to ratify USMCA, or have I not analysed this properly?
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Wendy Cockcroft, 3 Oct 2018 @ 6:00am

Re: Re: Re:
Haters gonna hate, and they've got to hate someone. Sooner or later they hate everyone.
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Wendy Cockcroft, 3 Oct 2018 @ 6:01am

Re: Re: It'll change
"But her emails!"

Thanks for asking.
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Wendy Cockcroft, 3 Oct 2018 @ 6:04am

Re: Re:
And hopefully back to the drawing board. However, in reality, they'd ram it though with a rocket on the end because we peons must obey our corporate masters.
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Anonymous Coward, 3 Oct 2018 @ 7:52am

Re: Re: Re: Re:
I think it all starts because they hate themselves.
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Anonymous Coward, 3 Oct 2018 @ 7:53am

Re: Re: Re: It'll change
Lock her up!
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Anonymous Coward, 3 Oct 2018 @ 9:25am

Response to: Anonymous Coward on Oct 2nd, 2018 @ 11:25am
I figured it was:

US United States
M Mexico
CA Canada

Hence the need for "Agreement"
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bob, 3 Oct 2018 @ 10:21am

Re: Response to: Anonymous Coward on Oct 2nd, 2018 @ 11:25am
For consistency They need two letter for Mexico. So they should have just used USMECA pronounced: you-smeck-ah.

Do USMECA my language? ISMECA your language.
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nasch (profile), 4 Oct 2018 @ 1:31pm

Re:

I'd be willing to bet that someone considered the exact name of the new "deal" to be really important.

"Someone" wanted to be sure the US came first in the name? You can't think who that would be? ;-)
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carlb, 6 Oct 2018 @ 10:26pm

"But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason."

Actually, there is only one good reason: the original Mickey Mouse cartoons were created in 1928 by a person named Walt Disney who died in December 1966 - a little over 50 years ago. The corporation which bears his name has a long history of having copyright law changed so that mouse never becomes public domain. It's self-serving and does nothing to benefit authors (as the creator is long dead) but that's business as usual.
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nasch (profile), 7 Oct 2018 @ 9:14am

Re:
You call that a good reason?
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