Chile Says It Does Not Recognize The Legitimacy Of The USTR's Special 301 Report

from the good-for-them dept

For many years we've wondered why countries bend over backwards to stay in the US's good graces concerning the infamous "Special 301" report, put together by the USTR. The list has no objective methodology at all. Instead, companies send their complaints to the USTR, and the USTR launders rewrites those complaints and puts certain countries on the "naughty" list. Back in 2007, Canada explicitly announced that it did not recognize the legitimacy of the list, by saying:

Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

And we've wondered why other countries do not do the same. When I was in Spain last week, a reporter I spoke to kept asking about the Special 301 list, as it seemed to be such a key concern for people there, and I noted that more countries should do what Canada does. I realize that there are other issues there, and Canada knows that the US isn't likely to create a trade war over the list, but it still seemed odd how seriously some other countries take the list.

That's why it's good to see at least one more country follow Canada's lead. Chile, which is on the "priority watch list," has officially announced that it, too, does not recognize the legitimacy of the list (translated):

The Chilean government said today it does not recognize as a valid instrument rating called "301 list" that makes the United States on violation of intellectual property rights and this year again includes the country in its Priority Watch section .

"This report is conducted outside the margins of the Free Trade Agreement between our country and the U.S., and therefore not recognized by Chile as a valid instrument rating," said a statement released this morning.

The "'301 List' lacks clear criteria for categorizing the different countries, but is rather a reflection of the interests of American industry selectively applying their intellectual property standards to other countries," it added.

Good for Chile to stand up for itself against the list.

Of course, it's no surprise that Chile got put on the list. As we noted last year, the country is actually a pioneer in strongly protecting intermediaries from liability, thus much more strongly protecting internet free expression and innovation. They're also actively encouraging innovation by luring startups to Chile with all sorts of benefits. Basically, Chile is quickly showing itself to be a supporter of innovation, which apparently isn't something the USTR wants to encourage.

Filed Under: chile, copyright, innovation, patents, secondary liability, special 301, ustr

Spain Considers Making Digital Copyright Law Worse: Pleasing The US Again?

from the never-ending-story dept

We wrote a couple of weeks ago how some were arguing that Spain ought to go back on the "naughty" Special 301 list for failing to show any "positive developments" on the copyright front recently. By an interesting coincidence, the Spanish Internet Association has just published a leaked draft of proposals to make digital copyright law in Spain even harsher. Here's how the Web site ADSL Zone describes them (original in Spanish):

The new proposals have a clear intention: to amend the Criminal Code to allow criminal prosecutions of Websites that provide links. According to the leaked document it will be an offense to provide ordered listings and categorized links to protected content, developed for this purpose and involving an active and non-neutral maintenance and updating of those lists.

Interestingly, Google wouldn't be affected by the new law according to ADSL Zone, nor would "occasional links" be prosecuted. Of course, everything would then hinge on what "occasional" meant in this context.

There's also the following proposal:

Second, the paper seeks to limit the concept of private copying. This will require us to be in possession of the "original media". This is really incompatible with the current reality, since there are legal platforms like Spotify or iTunes where you do not have that "native support".

The concept of "original media" is meaningless in the digital realm, where files are copied many times as they traverse the Internet, or as people move them around on their storage media. How on earth would you prove that your digital copy was "original"?

Finally, there is a suggestion for making the copyright levy system not only worse, but in conflict with current EU plans to rationalize it:

no matter whether we copy or not, whether or not we have the "original media", the fee will be charged in any case.

In an age where storage media are becoming ubiquitous -- if Samsung's refrigerator is running Android, it must have storage -- such levies are anachronistic and harm innovation, so Spain's plans to push on with them is one more indicator that it's heading in the wrong direction. The big question, of course, is why it is doing this: is it simply the usual story of lobbyists' privileged access to government ministers who aren't interested in whether the new measures are fair or even effective? Or is this once more the heavy hand of America reaching across the water to put a little pressure on its Hispanic friends...?

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Filed Under: copyright, criminal, links, spain, special 301

Could The Special 301 Report Be Useful? Proposed Law Would Broaden It To Condemn Internet Censorship

from the that-would-be-nice dept

For years, we've highlighted the USTR's silly "Special 301" report, in which it lists out "naughty" countries who aren't doing enough to meet Hollywood and the Pharma industry's definitions of what intellectual property laws should look like. This is based on no real methodology, other than that each year, the big industry associations submit filings to the USTR on which countries they don't like, and the USTR basically compiles them, and puts out a list of the "bad" countries. It's so ridiculous that Canada -- whose copyright law has been much more limiting than US law in many ways, but still gets put on the naughty list every year for not (until now) imposing digital locks provisions -- has an official policy not to recognize the legitimacy of the Special 301 report.

That said, as long as the USTR is putting together a list of "naughty" countries, why not make it actually a useful list? Senate Finance Committee boss Max Baucus has introduced a bill to normalize trade relations with Russia -- which has been a key concern of the committee for a while. Buried in the plan is something interesting:

In addition, the proposal amends section 182 of the Trade Act of 1974 by requiring that the report under section 182 include a description of laws, policies, or practices of the Russian Federation that deny fair and equitable treatment to U.S. digital trade.

This may not seem like much, but it could be a big deal. Section 182 of the Trade Act is also known as 19 USC § 2242, which basically sets up the Special 301 report.

So, basically, this little tidbit could shift the Special 301 report so that it doesn't just identify countries who Hollywood and Big Pharma don't like, but will also check to see if Russia is "denying fair and equitable treatment to US digital trade." What does that mean? Well, you may have noticed (as we did) that Russia just approved a new internet censorship bill, which certainly could deny "fair and equitable treatment" to certain digital goods.

Right now, it looks like (for unclear reasons) this provision is just limited to Russia, but if that works, it's not difficult to see it expanded globally. Wouldn't it be interesting if the USTR was actually forced to make the Special 301 report useful, by not just having it focus on intellectual property issues, but also on whether or not a country was censoring the internet and blocking useful internet services?

Filed Under: free speech, internet censorship, max baucus, senate finance committee, special 301, ustr

USTR Puts Out Its 'Rogue Sites' List... Can't Even Find 20

from the and-for-this-we-need-to-change-the-internet? dept

One of the completely ignored questions in the larger debate over SOPA/PIPA is how big an issue this really is. How many of these dangerous "rogue sites" are there that need to be dealt with? When confronted on the issue, they usually say it's around 50 sites or so. So it seems rather bizarre that we'd want to change the entire legal and technical framework of the internet, along with putting massive compliance costs and liabilities on tech companies who create jobs... just for such a small number of sites. And... it's looking even more ridiculous than before. As you know, every year the USTR comes out with its silly and widely mocked Special 301 report, which takes industry complaints about who's infringing where, rewrites them (with no significant additional investigation) and puts a government seal on top of it. This week, they came out with the "out of cycle" naughty list of evil sites. Again, this involves just asking the big entertainment companies what sites and countries they don't like, and then writing up a report.

So, given a chance to highlight just how "big" a problem this is... all the industry could turn up was 19 specific sites that are rogue sites (well, here they're called "notorious"). To be fair, one of the 19 is "Allofmp3 clones" so that could encompass a few more sites. But, really, if the problem is just dealing with a small number of sites, is that really worth such a massive infrastructure change, since pretty much every technically clueful commentator has noted the massive cost on internet security of using these laws?

Filed Under: rogue sites, special 301, ustr
Companies: mpaa, riaa

Why Is The Obama Administration Putting Billions Of People At Risk With Patent Pressure From The USTR?

from the what-a-shame dept

We've already noted what a complete joke the Special 301 report is. It's the process by which the White House, via the USTR, basically "launders" the complaints of industry lobbyists who want foreign countries to prevent competition by ratcheting up patent and copyright laws to better clear the market for American companies and their products. As people digest the details, it again is apparent what a corrupt society we live in. As Michael Geist notes, the US seems to be saying that 4.3 billion people live in countries without "adequate" copyright and patent laws. Many of those countries are poor, and almost everyone who has studied developing economies has noted that strict patent laws do significant harm both to the health of citizens in those countries and to their opportunities to develop. The US, of course, should know this. In order to help develop our own economy, we were quite good at ignoring the intellectual property of other countries.

But the details are where it gets really disgusting. For all the talk about the vague and undefined language found in ACTA, it really comes through when you look at how the USTR names and shames some countries for trying to implement a patent plan that actually keeps their citizens healthier:

That said, it was a disappointment to read that USTR is pressing so hard on the pharmaceutical test data issue, including even for a Least Developed Country (LDC), and that the USTR cites the Philippines for tying patentability of certain chemical forms unless the applicant demonstrates increased efficacy, and complains that India does not patent "temperature-stable forms of a drug or new means of drug delivery." During the hearings, public health groups made it quite clear that it was important for developing countries to continue to have the flexibility to limit the evergreening of pharmaceutical products via these types of patents.

In other words, lots of countries know that they need less expensive drugs to keep their populations healthy (and to make them economically productive). And yet the USTR is trying to clamp down and enforce stricter patent laws in those countries, which would force them to buy life-saving drugs from big pharma firms at massively inflated prices. That costs lives. Why does the White House want to put so many lives at risk?

It's really economically stupid as well. We want these countries to have healthy populations and growing economies, because they're future markets for other things that the US sells. The US government is so short-sighted on this that it's happy to have a bunch of poor people die if they can't buy some expensive drugs, not realizing how much that harms so many other US industries.

Filed Under: healthcare, patents, special 301, ustr

White House Publishes Obnoxious Special 301 Report; Whines About Any Country With A More Enlightened View On IP

from the but-of-course dept

It's widely considered a complete joke in diplomatic circles and even within the US government, but every year the USTR is required to come out with its Special 301 report concerning who's been naughty and who's been nice on intellectual property issues. This year's report has just come out, and it's no different than previous years. Basically, there's no objective process at all. There's just a bunch of lobbyists whining about which countries don't treat them with enough respect (i.e., allow real competition in their home countries), and then the USTR parrots back the lobbyists' complaints, with little in the way of verification or understanding. Then, the State Department uses that report to pressure countries (see: New Zealand, Canada, Sweden and Spain as examples) to rewrite their patent and copyright laws.

The really sickening part in all of this is that the USTR makes no effort to determine what sorts of IP laws are effective or reasonable. None. It just pushes other countries to ratchet up their IP laws to more and more draconian levels. Basically, if anyone thinks they have a better idea on how intellectual property laws should be done, the US government shames them with this report. It's even more ridiculous when you realize that they even name and shame some countries (e.g., Canada) for not making their laws even worse than US laws. Notice that the Special 301 report never seems to care when other countries don't add in exceptions like fair use... they just focus on ratcheting things up.

It's a complete embarrassment, and it's time the whole thing was dropped.

Filed Under: copyright, special 301, ustr

Double Standard On The Special 301 Report: Industry Is Allowed Vague, Unsupported Statements; Consumer Advocates Are Not

from the funny-how-that-works dept

We've already pointed out the general ridiculousness associated with the USTR's "Special 301" report, which is widely regarded as a joke. The report, which allows the administration to name which countries have been "naughty" when it comes to intellectual property enforcement, has no methodology. It has no objective measures. It has no accountability. Basically, industry groups submit their own reports on what countries are bad, and the USTR rewrites them as its own report, doing nothing to actually fact check the claims or to even quantify anything. In the past couple of years, the USTR has been more open about having consumer rights organizations -- and even consumers themselves -- submit their own reports, but there's been little indication that anyone at the USTR has actually listened to any of those reports.

And, in a rather striking demonstration of how this all works, Stan McCoy, from the USTR (and apparently a top candidate to take over the Copyright Office, despite not being an expert in copyright law), presided over hearings concerning the Special 301 report recently, in which both industry groups and consumer groups appeared. Yet, as one observer noted, McCoy appeared to have a total double-standard concerning how he viewed the comments of each:

The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.

Testimony from groups like Global Health Organization, the Forum on Democracy and Trade, Oxfam, Public Knowledge, and others were met with aggressive push back and questioning on how criticism on the Special 301 process was at all relevant to the committee’s ability to render judgments on individual countries.

But that’s exactly the problem. The report is written so vaguely, and industry complaints taken at such face value, that specific criticism of the report is near impossible. I was surprised to learn that the report doesn’t include a list of criteria used to evaluate countries or even clear explanations on why specific countries are placed on the watch list, nor does it say which industry-submitted comments were the basis for citation.

So if you're from industry, it's absolutely fine to make vague, totally unsubstantiated statements -- even if they've been widely debunked by actual experts and researchers. Yet, if you're representing consumers, you need to have specific points to make or you get chided. And, of course, you can't make any actual specific points because the USTR doesn't have any specific criteria on which it bases the overall report. Brilliant.

Also, it appears that McCoy is somewhat uninformed about his own organization's report (which he is closely connected with):

The best moment of the hearing, to me, was during Sean Flynn's testimony on behalf of the Forum on Democracy and Trade. Flynn argued (for the second year in a row, I might add) that citing countries like Finland, France, Italy, and Japan for "unfair [pharmaceutical] reimbursement policies" was incredibly vague, hypocritical (because the US has similar reimbursement policies), and--most importantly--outside the statutory mandate of the Special 301 process. McCoy retorted that no such citation was in the 2010 report [pdf].

Flynn’s response? "It's right here on page 14..."

And people wonder why foreign governments, and many of us who pay attention to these issues, consider the Special 301 process to make a mockery of the US government on intellectual property issues.

Filed Under: consumer rights, copyright, industry, politics, special 301, stan mccoy, ustr

Isn't It Time To Drop The Laughable 'Special 301' Report?

from the dump-it dept

We've written about the USTR's "Special 301" report many times. It's a report that the USTR puts out each year which names which countries have been "naughty" when it comes to intellectual property laws -- and then tries to shame/coerce them into putting in place much stricter copyright and patent laws. In the recent State Department cable leaks about copyright laws in other countries, what quickly became clear is that diplomats frequently use this list to put pressure on countries that have perfectly reasonable copyright laws to create copyright laws that will almost certainly harm citizens and local culture. The "process" for putting together the report involves nothing objective at all. Instead, the USTR basically asks a bunch of lobbyists to name the countries they hate the most, and voila, there's the basis for the list. Last year, I filed my own comments, pointing to various research and evidence that suggested the entire 301 process was flawed. It didn't make a difference, of course. The report still came out and it was more of the same: a lobbyist's wishlist.

This year, I didn't even bother, because it's pretty clear that the USTR has no interest in actually doing its job in improving overall trade, but is clearly going to continue to carry out its role as a lobbyist mouthpiece. Still, some groups, including Public Knowledge and Knowledge Ecology International made filings this year, pointing out how screwed up the whole Special 301 process is, and suggesting it's about time the USTR changed the overall process.

What I want to know is why we bother at all any more? Isn't it time to just drop the whole thing? It's widely considered to be a joke among those who understand how the list works. Each year Canada is named, and Canadian officials laugh and repeat the same claim about how they don't recognize a list like the Special 301 that is clearly nothing more than an attempt by US companies to influence Canadian policy in their own favor. Even people at the Copyright Office -- who normally are closely aligned with the USTR -- have spoken out in public about how the Special 301 is a joke, not to be taken seriously.

When so many people consider the list to be a total joke, isn't it reasonable to question why we still have it at all? The list has nothing to do with improving trade or improving economic conditions. It's a simple protectionism process that allows a small group of big companies to get the US government to act as their mouthpiece. It's an embarrassment, and it's time to dump it.

Filed Under: diplomacy, intellectual property, lobbying, special 301, ustr

Once Again, More State Dept. Cables Show Swedish Copyright Enforcement At The Behest Of US

from the but-of-course dept

There's absolutely nothing surprising at all about the following, but Christian Engstrom (one of the two European Parliament Members from The Pirate Party*) highlights yet another leaked State Department cable that shows that many of the copyright enforcement efforts of the Swedish government were in response to a six point checklist given to the Swedish government by the US Embassy (English translation from the original Swedish -- though at the end of the Swedish post the original cable is available in English). The six point check list passed on by the embassy was almost certainly originally from US industry lobbyists. There's nothing in this that is even remotely surprising (and hints of this had already leaked previously).

What really gets me about this is why do countries like Sweden even really care about the Special 301 Report, which is used as the main "stick" by the US Embassy. As we discuss every year, the US Trade Rep (USTR) each year puts together a silly "Special 301 Report" which lists out who's been naughty and who's been nice on intellectual property issues... according to US industry. The list is widely regarded as a joke by many -- including within the US government. I was once at a copyright conference where people from the US Copyright Office openly mocked the Special 301 Report as being a meaningless joke. In part, that's because it's not based on any hard science or actual data at all. Instead, it's written mainly based on what US industry says are problem countries... with a review from US diplomats stationed in those countries. The "leaked" cable is the US embassy in Sweden weighing in on the 2009 report.

Of course, getting on that list is somewhat meaningless. All it really means is that US diplomats will put more pressure on those countries to fix and/or change the situation in that country -- which is exactly what the cable shows the US embassy was already doing in Sweden. What I don't really understand is why Swedish officials caved so easily. Canada has been in the same position for years, with US industry making up completely bogus and totally unsubstantiated claims about how Canada is a "haven" for copyright infringement, despite the fact that Canada's copyright laws are much more stringent than the US's in many ways. While some Canadian politicians have pushed for new copyright reform, the attempt two years ago that was almost certainly written by US industry got shot down. However, what's really interesting is that Canada responds each year to the Special 301 report by noting its ridiculously flawed methodology and pointing out that it's purely a political list, and not one to be concerned about.

What's unfortunate is that Sweden did not do the same, but that its government pretty much folded. Of course, what's amusing is that the undertones of this cable, and previous cables on this issue suggest that Swedish politicians know that the public absolutely does not support them in pushing this "made in America" approach to copyright law. But, for whatever reason, they still seem to feel compelled to follow through with it. What I don't quite understand is why that is? I would guess the concern is trade sanctions by the US against Sweden, which is the undercurrent of all of the Special 301 threats, but at some point the Swedish government should stand up for itself and not be bullied in such a manner.

* I normally do not list out political parties of politicians on this blog, as it tends to drive the discussion in a political direction, rather than on the facts of the article. However, when I did this last time with a Pirate Party MEP, I was falsely accused of trying to "hide" the fact. So I'll mention it here, in part, because (after thinking about it) I don't think mentioning the Pirate Party leads to the same sort of political mudslinging that naming a major party creates.

Filed Under: copyright, diplomacy, special 301, sweden, us

Human Rights Groups Complain About Special 301 Process

from the not-just-a-joke dept

We've talked in the past about what a complete joke the USTR's "special 301" process is. That's when a bunch of industry lobbyists say which countries are the most annoying to them on intellectual property issues. Then, the USTR sums it all up and says "these countries are problems" and tells US diplomats to go browbeat those countries to have better intellectual property laws and enforcement. Of course, the problem is that there's no objective research being done. All of the information is heavily biased, and it doesn't take into account either the actual laws or enforcement in a country (just what industry reps say is going on) or the rights of those countries to make their own decisions when it comes to IP laws.

Over and over again, I've heard various government officials and lawyers -- even those who are generally supportive of our current intellectual property regime -- scoff or roll their eyes about the Special 301 report. It's basically considered a joke by nearly everyone. However, when a joke is costing people lives and access to necessary medicine, then perhaps it becomes a serious problem. A group of Human Rights organizations have come together to challenge the Special 301 process, saying that it's being used to push policies that go beyond what the law requires, and which are causing real harm worldwide. They're saying this actually violates our human rights obligations:

"Since its inception in 1988, the United States Trade Representative's "Special 301" adjudication of foreign intellectual property law standards has been used to promote policies restricting access to affordable medications around the world. President-elect Obama released a platform promising to "break the stranglehold that a few big drug and insurance companies have on these life-saving drugs" and pledged support for "the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs." The 2009 and 2010 Special 301 reports, however, indicate that the Obama Administration has not yet implemented this pledge. Although the 2010 Report shows some improvement, the Obama Administration continues using Special 301 to pressure developing countries to adopt escalating intellectual property rules that are not required by any international agreement and that will negatively impact access to medicines. This complaint will allege that the continuation of Special 301 attacks on policies promoting access to affordable medicaitons abroad violates international human rights obligations."

So if we're going to argue over "international obligations" (which I tend to find to be a red herring in most cases), and two sets are conflicting... which are more important? International obligations on human rights? Or the ones protecting a few big conglomerates from competition?

Filed Under: copyright, special 301, ustr