Canada Says It Won't Attend Special 301 Hearing Because USTR Prefers Industry Allegations To Facts And Data

from the lobbyists-all-the-way-down dept

The US Trade Representative's annual Special 301 Report repeatedly points out how other countries are "failing" US IP industries by not doing enough to prevent piracy. The "name and shame" approach hasn't done much to curb piracy, although it has generated a few pressure points to leverage during trade negotiations.

Countries appear to be tiring of the annual shaming. Michael Geist reports the Canadian government has issued a rebuttal ahead of this year's Special 301 hearing.

I recently obtained documents under the Access to Information Act that confirm the Canadian government’s rejection of the Special 301 process. Canada will not bother appearing today largely because it rejects the entire process.

The two-page memorandum goes directly to the heart of the issue: despite Canada now having some of the world's toughest anti-piracy laws, the USTR continues to make the annual claim that the country could be doing so much more. The memo [PDF] puts it bluntly: the USTR represents no one but industry leaders.

Canada is on the "Watch List" of the United States Trade Representative (USTR) annual Special 301 Report, issued on April 21, This report discusses the adequacy and effectiveness of United States (US) trading partners' protection and enforcement of intellectual property

The Government of Canada does not recognize the validity of the process as the findings tend to rely predominantly on allegations from US. industry stakeholders rather than on objective analysis.

The particular point of complaint is Canada's continued inclusion in the report, despite its many anti-piracy efforts. The press release accompanying it goes even further in expressing its displeasure with the USTR's industry-favoring Special Report.

Canada considers the Special 301 process and the Report to be invalid and analytically flawed because the process relies primarily on US. industry allegations rather than empirical evidence and objective analysis. Canada has a strong regime for the protection and enforcement of lP rights that is fully consistent with its international obligations, including under the North American Free Trade Agreement (NAFTA) and the World Trade Organization's Trade-Related Aspects of intellectual Property Rights (TRIPS) Agreement.

Canada remains on the Watch List in 2016 despite recent significant achievements domestically in relation to reform namely, the passage and coming into force of the Copyright Modernization Act and the Combating Counterfeit Products Act. in previous years, the absence of such reforms was a central concern of the US. in relation to Canada's regime.

The Canadian Government also passed amendments to the Trademarks Act, the Patent Act and the industrial Design Act to make Canada's intellectual property regime consistent with key treaties (the Madrid Protocol, the Singapore Agreement, the Nice Agreement, the Patent Law Treaty and the Hague Agreement). in 2015, Canada also completed its ratification of the 1991 Act of the international Union for the Protection of New Varieties of Plants Convention (UPOV 91).

It appears the Canadian government believes the 2017 Special 301 Report (due at the end of April) will continue to ignore Canada's IP protection capitulations advancements. And if the USTR is going to continue to name and shame without evidence or consultation of all affected stakeholders, there's really no reason for any foreign country to appear in its annual puppet show, much less continue to try to placate an entity that's never going to be satisfied.

Filed Under: 301 report, canada, copyright, special 301, special 301 report, ustr

Trump Advisor Pens Almost Totally Clueless Piece About 'Intellectual Property Theft'

from the this-does-not-bode-well dept

I realize that there are much bigger issues at hand right now, but those of us who follow copyright, patent and trademark policy have been somewhat perplexed about what a Trump administration might do on that front. The issue was basically entirely ignored by Trump and his campaign during election season. And because of that, you now have lots of organizations on all sides of the debate pressing Trump to simply buy into their views of intellectual property, no matter how inane.

However, I recently came across a piece at Business Insider, entitled "Why intellectual property theft is one of the biggest crimes threatening the US economy," that was so clueless of the actual issues related to intellectual property, that I went to see who wrote it -- only to discover that the author, Diana Furchtgott-Roth, was on Trump's transition team (something that is not disclosed by Business Insider for unknown reasons). This does not bode well. The whole article is problematic and confused, so let's dive in.

Many assert that President-elect Donald Trump is against free trade.

Well, that's mainly because Trump himself has argued that free trade is harmful to American interests and has repeatedly argued for protectionist tariffs and other anti-free trade policies.

But standing against the theft of intellectual property and old-fashioned mercantilism, as Trump has promised to do, is an appropriate role for the chief executive. Allowing other countries to cheat us is not free trade.

So, already, we're left with a big giant "huh?" Copyright policy, in particular, is itself a leftover remnant of mercantilism. Patents and copyrights are protectionist anti-free trade policies by their very nature. Historically, patents were a key part of anti-free trade protectionist programs by governments, in which they'd give the sole right to produce certain goods to certain "friends" and block out all others. And that's what copyright and patent law today continue to do, in a slightly modernized form. They still involve central government bureaucracies handing out monopolies and the blocking of free trade. It's kind of bizarre to argue that actual competition is "old fashioned mercantilism" when copyright and patents themselves are directly old-fashioned mercantilism in action.

And, sure, allowing countries to "cheat" may not be free trade, but what do we mean by "cheating" here, because it mostly sounds like copying. And copying is actually a key part of free market capitalism, because it's a part of competition and a driver of innovation. How do you compete when someone copies you? You innovate and keep making your product or service better. That shouldn't be seen as cheating -- it should be seen as competing in a free market world. Copyright and patent laws that are too strict directly impede that free market.

From there, the article gets even more inane.

People throughout the world identify with American art, music, software, and clothing designs, and benefit from American pharmaceuticals and patents.

Weird to include clothing designs in that list, since clothing designs are, somewhat famously, not protected by copyright, which has helped it thrive (thanks to competition and rapid innovation). But, more importantly, Furchtgott-Roth seems to make the totally amateur mistake here of assuming that the product output here is the same thing as "intellectual property laws." This is common among people who either don't understand the space, or who are misrepresenting the role of copyright or patent laws to push an agenda. The argument relies on the simple fallacy that because some of these things (again, notably not clothing designs) are protected by intellectual property laws, they only exist because of those intellectual property laws, and therefore, we have those laws to thank for them existing.

But, of course, nearly all of the evidence contradicts this -- especially in areas of art, music and software. Those are all areas where we've seen much more creative output over the past couple of decades, even as "piracy" and infringement have increased. The reason we've seen so much output has little to nothing to do with the state of intellectual property laws, but much more to do with innovations, such as the internet and computer technology, that have made it easier than ever to create, produce, edit, distribute, promote and monetize works... without having to rely on gatekeepers.

Yet American intellectual property is routinely stolen.

You mean infringed. It's kind of an important distinction.

Each year, the United States Trade Representative publishes a report entitled “Special 301 Report” on intellectual property theft—yet does nothing about it.

Oh goodness. Where to start. First of all, the Special 301 Report is widely considered a total joke by basically everyone with any knowledge of it outside of the USTR. As I've said before, I've even seen the copyright maximalists at the Copyright Office mock the report. Canada has an official stance that it does not recognize the Special 301 report, because the methodology is a complete and utter joke. More recently, Chile announced a similar position.

And that's because it is a total joke. There is no methodology. Basically, the USTR allows anyone to submit their "complaints" about certain countries, and it becomes a Festivus-style "airing of the grievances" for special interests. It's mainly the MPAA, RIAA and similar maximalist organizations that go around whining about any country that won't pass their preferred laws, even in situations where those laws go way, way, way beyond what we require in the US. One of the reasons, for example, that Canada ignores the Special 301 report was that for years the MPAA got the USTR to put it on the really bad list because Canada wouldn't criminalize people filming movies in movie theaters.

From there, the USTR basically just picks and chooses whose complaints it likes the most, and rewrites the complaints into the Special 301 report. There is no data. There is no analysis. There is just the whining of the MPAA/RIAA, the USTR and what countries they decide need to be smacked down. Amusingly, if you submit a report to the USTR about how some country is abusing user rights -- such as trampling on fair use -- well, the USTR will completely ignore that.

Also the "do nothing about it" part is incredibly ignorant of what happens once a country is put on one of the "naughty" lists of the Special 301. At that point, US diplomats start putting ridiculous levels of pressure on those countries to change their laws. The Special 301 report was used to absolutely bully Sweden and Spain into ratcheting up their copyright laws, despite the fact that the public was totally against it in both cases. A few years ago, the US used the Special 301 to bully Ukraine in a way that likely violated the WTO.

In short, the total joke of a policy is (unfortunately) regularly used to apply strong diplomatic pressure on countries to change laws. But that's apparently not enough for Furchgott-Roth, who acts as if she just discovered the Special 301 before writing up this piece. She wants more:

America should take a tough line with countries on the USTR’s Section 301 Priority Watch List. Here are five suggestions.

1. We could limit their commercial activities in the United States. Alternatively, we could limit imports of those products with their intellectual property—or ours.
2. When an American company is being harassed in a foreign country, we could haul the ambassador in and ask what is going on. If China holds up our imports, we could hold up their imports.
3. If the country is on the special watch list, the Commerce Department could request the International Trade Administration do audits of intellectual property protection in those countries.
4. We could limit, and not expand, the commercial activities of countries on that watch list.
5. If a country appears for a second year on the list, the Commerce Secretary could be required to prepare a special report to the President on remedial actions.

Yikes. Again, the list itself is a joke based on no methodology and we already use it to apply a disproportionate level of diplomatic pressure on the countries on that list. And yet, this suggestion is to make it worse. That's not "free trade" that's good old fashioned protectionism of American goods. It's the opposite of free trade. So the crux of this plan is basically letting the MPAA/RIAA decide who the US should block all trade with. What could possibly go wrong?

And, as a kicker, Furchtgott-Roth, suggests that the fact that China has literally been kidnapping book publishers and sellers it doesn't like is a good example of how it can crack down on copying. Really.

Countries may tell us that it is impossible for them to prevent their citizens from copying our goods. But when China, for example, can make book publishers in Hong Kong disappear because it disagrees with the content of the books, it can certainly close down the fake Apple stores.

For once, I'm at a loss for words. Supporting making political dissidents disappear as a good example of how an authoritarian regime might deal with basic competition is downright frightening.

But, unfortunately, this may be what we have to look forward to under a Trump administration.

Filed Under: copyright, diana furchtgott-roth, donald trump, intellectual property, patents, special 301, trade agreements, ustr

Why Does The USTR Still Think Any Website That Might Upset Hollywood Is Illegal?

from the that's-not-how-it-works? dept

We've written a few times in the past about the USTR's ridiculous "notorious markets" report, which is an offshoot of the already ridiculous Special 301 report, in which the USTR is supposed to name and shame countries that don't respect US intellectual property laws... based on whichever lobbyists whined the most to the USTR (seriously: the process is no more scientific than that). The "notorious markets" report is even more ridiculous, and lets the USTR go even further afield, often naming perfectly legal internet services just because Hollywood doesn't like them. It got seriously ridiculous last year when the USTR expanded the list of domain registrars, including the very popular domain registrar Tucows. The USTR claimed that it was okay to put Tucows on the list because it "failed to take action" when notified of infringement.

Um. But that's the correct thing to do. A registrar's job is just to manage domain registrations and not to police what's on those sites, or to strip those domains. If someone is infringing on copyrights/trademarks/whatever, take it up with whoever is behind the site, not two steps removed to the company that registered the domain. Many people pointed this out last year, but this is the USTR we're talking about, and the USTR doesn't give a fuck. It just went right back out and with the release of the 2016 Notorious Markets List is still listing domain registrars and other websites that are perfectly legal, but which Hollywood or other big legacy industries don't like very much.

While Tucows is no longer listed, they do name Domainerschoice as a "notorious market" because many online pharmacies have purchased domain URLs from that registrar. But, again, if the online pharmacies are the problem, go after those pharmacies, don't blame the domain registrar. Domainerschoice is just creating a database and selling URLs, not hosting any content or selling any drugs, legal, gray market or illegal.

The new report also puts a special focus on the perfectly legal stream ripping business. There are many legal purposes and reasons to be able to record streaming audio/video, but the USTR pretends there are none and that this is a great scourge:

Stream ripping is an emerging trend in digital copyright infringement that is increasingly causing substantial economic harm to music creators and undermining legitimate services. Stream ripping is the unauthorized act of converting a file from a licensed streaming site into an unauthorized copy for distribution via download to the requester. Stream ripping often involves violations of terms of use and the circumvention of technological protection measures that legitimate streaming services put in place to protect music content from unauthorized copying and distribution. A study from the International Federation of the Phonographic Industry shows that stream ripping is on the rise in the world’s leading music markets. Nearly 30 percent of Internet users obtain unauthorized copies of music from stream ripping services. This is the first Notorious Markets review in which copyright stakeholders have nominated stream ripping sites for inclusion in the List.

As EFF points out, stream ripping has plenty of perfectly legal uses, and if they're a violation of a site's terms of service, that's for the site to deal with, not the US government:

In many cases, stream ripping is a legitimate, lawful activity. YouTube contains thousands of videos with audio tracks that are freely licensed, and some that aren't copyright-protected at all. In other cases, stream ripping may be a fair use of a copyright-protected audio track. In fact, EFF's Cory Doctorow writes, “I used YouTube-MP3 to rip a video of my own reading, of my own story, just today—so I could include it in my podcast feed.”

While the USTR points out that stream ripping may be in violation of the terms of use of the streaming site—YouTube, in this case—that is nobody's business but YouTube's. While YouTube is at liberty to block YouTube-MP3 from accessing its servers if indeed they are violating its terms of service, this doesn't give the government or copyright holders any similar cause for complaint.

Hell, it's not like there isn't a major Supreme Court ruling noting that recording streams (television, in that case) for the purpose of time shifting is perfectly legal fair use, and the makers of the equipment to do so are not violating the law, so long as there are "substantial non-infringing uses."

Does the USTR simply not know the law? Or do they know and just not care?

The EFF also points out two other serious problems with the new report, including naming Libgen and Bookfi to the list -- both of which are online libraries, with a focus on providing educational materials to people who couldn't otherwise access it. We've written a few times in the past about Libgen, mainly because the similarly infamous Sci-Hub uses it as a source for academic papers. While the EFF notes that it's likely that these online libraries may be violating copyright law, they are doing so to further access to knowledge and educational materials. It kinda says something when the USTR thinks that's a "notorious market" that is a problem.

Finally, there's the question of cyberlockers. Here, again, the USTR seems to ignore the law, and the fact that cyberlockers are protected by the DMCA's safe harbors. The USTR, again, doesn't seem to care, because the entertainment industry is whining. In particular, there are concerns about the naming of 4shared, a site that complies with DMCA takedowns and and has gone above and beyond that by offering up a ContentID-like filter to implement a form of notice-and-staydown that is not required by the law. But the USTR doesn't care.

Because the files uploaded to 4shared are uploaded by users, the site is protected from liability by the safe harbor provided by section 512 of the DMCA, and is only required to disable access to infringing files once a copyright holder sends it a notice in compliance with that law. This is one of the bedrock principles that underpins the success of America's dynamic and innovative Internet industry.

Like YouTube, 4shared has also voluntarily chosen to go above and beyond the requirements of the law, by also putting in place a music identification service that blocks users from sharing files that match music tracks that a copyright holder claims to own. We have serious concerns about such automated content matching systems, but leaving that aside, the adoption of such a system hardly seems like the behavior of a website dedicated to facilitating infringement.

And that's not all. The USTR has also named the popular Russian social network Vkontakte (VK). For years, VK was well-known as a place where people uploaded and could access tons of unauthorized content, but in recent years, the company has been cutting tons of licensing deals to make all of that content authorized. So the company is not at all happy to be back on the list, seeing as it's spent years getting licensing deals. So why is it still on the list? Because the USTR apparently wants to cement its reputation as a laughingstock in the copyright world, where whatever Hollywood says is the law it abides by, rather than the actual laws of the United States.

Filed Under: cyberlockers, domain registrars, notorious markets, stream ripping, ustr
Companies: 4shared, domainerschoice, libgen

Obama's Last Gasp At Trade Deals: Lame Duck Push On TPP; And 'Lite' Version Of TTIP

from the this-is-not-legacy-building dept

Lots of people have expected President Obama to push for a Congressional vote on the Trans Pacific Partnership (TPP) ratification in the "lame duck" session after the election, but before the new administration takes over. Last week, the President made it pretty clear that he was planning to do exactly that, and magically a bunch of "business groups" that make up the "President's Export Council" are suddenly pushing for a lame duck TPP vote, and lots of old school business lobbying groups are out talking to the press about how totally amazing the TPP is. Meanwhile, on the flip side, TPP opponents are (not surprisingly) gearing up to oppose a lame duck vote.

It's still not clear if there are enough votes in Congress, but of course, no one wants to talk about it before the election, because there's so much populist anti-TPP feelings from the public on both parties that speaking up in support of TPP now may harm election chances. Of course, after the election, when elected officials can go back to ignoring the will of the people, things may miraculously shift back to the way they were before.

Meanwhile, the other big "trade" plan that was supposed to be a part of Obama's legacy is the deal with the EU, known as the TTIP (Transatlantic Trade & Investment Partnership). That's run into lots of trouble as well, and there are serious concerns on both sides of the Atlantic about how it will work. With time running out on the clock, apparently the USTR is now pushing for a "light" version of the agreement so that something is accomplished:

The U.S. and EU countries supporting free trade are increasingly worried that the landmark Transatlantic Trade and Investment Partnership will collapse if they do not secure a preliminary accord before U.S. President Barack Obama leaves office in January.

They now accept that a full agreement will not be possible by the end of 2016 because of an impasse over agriculture and public procurement, but they don’t want to surrender what they regard as concrete progress made in other fields over the past three years of negotiations.

So to "lock in" something, they are looking at taking the pieces they have agreed on, and coming up with a simplified deal. What's interesting here is that the agreed upon parts are the ones that are normally used as the example of why we need TTIP in the first place. In the past, we've joked about how frequently those defending TTIP point to the single example of different automobile standards, such that automakers need to build different cars for each market. And it looks like that issue might make it in TTIP-lite:

U.S. and Italian officials are now weighing the option of a “Step 1” deal to lock in elements that can be finalized by December, possibly including joint testing regimes and mutually agreed upon standards for cars, pharmaceuticals and medical devices.

So, uh, that sounds good. Why do we need the rest of the crap that they're debating, around corporate sovereignty ISDS provisions -- especially since the entire basis for those kinds of agreements was supposed to be to encourage investment in developing countries. The EU and the US have perfectly decent court systems, so any dispute shouldn't need a special tribunal.

But, of course, those who have relied on shoving all sorts of pork and special interest protectionism through trade deals do not like the idea of a "lite" agreement that covers the officially discussed reasons for a trade deal. Why, that would be horrible! How could they continue to hide all the sneaky stuff they want to get in?

The idea has sparked immediate skepticism in the European Commission and in some EU member countries, which argue that any form of a downgraded deal will be very hard to sell politically, particularly after French Trade Minister Matthias Fekl and German Economy Minister Sigmar Gabriel turned hostile on the negotiations.

And, of course, anything that's "rushed" through may have problems on its own, so there are legitimate reasons to be wary of a "lite" deal anyway. But it is kind of amusing that they might dump all the "good" reasons for TTIP into a deal, and then have to continue to try to justify the rest of the stuff.

Filed Under: corporate sovereignty, isds, lame duck, president obama, tariffs, tpp, ttip, ttip lite, ustr, white house

Google Comes Down On The Wrong Side Of The TPP

from the short-sighted dept

This is extremely unfortunate, but not surprising. Google has made some noise sounding supportive of the TPP over the past year or so, and now it's put out a blog post strongly supporting the agreement, and claiming that it's good for intellectual property and the internet. The company is wrong. The statement is right about a big problem on the internet -- the growing restrictions and limitations on the internet in different jurisdictions:

But Internet restrictions -- like censorship, site-blocking, and forced local storage of data -- threaten the Internet’s open architecture. This can seriously harm established businesses, startups trying to reach a global audience, and Internet users seeking to communicate and collaborate across national borders.

Yes, absolutely. And the TPP only tackles a tiny part of that -- and in some ways makes other aspects worse. But that's not what Google says. Instead, it misrepresents what the TPP really does. The post is correct about the issue of cross-border data flows and localization -- and I agree that these are good things -- but they're small parts of an agreement that has so many other problems:

The Internet has revolutionized how people can share and access information, and the TPP promotes the free flow of information in ways that are unprecedented for a binding international agreement. The TPP requires the 12 participating countries to allow cross-border transfers of information and prohibits them from requiring local storage of data. These provisions will support the Internet’s open architecture and make it more difficult for TPP countries to block Internet sites -- so that users have access to a web that is global, not just local. 

It's after that where the post goes off the rails:

The TPP provides strong copyright protections, while also requiring fair and reasonable copyright exceptions and limitations that protect the Internet. It balances the interests of copyright holders with the public’s interest in the wider distribution and use of creative works -- enabling innovations like search engines, social networks, video recording, the iPod, cloud computing, and machine learning. The endorsement of balanced copyright is unprecedented for a trade agreement. The TPP similarly requires the kinds of copyright safe harbors that have been critical to the Internet’s success, with allowances for some variation to account for different legal systems. 

This is just wrong, and it's the most frustrating part of the post. The TPP expands copyright rules to ridiculous levels in many countries, including extending copyright terms at a time when there is no sound basis for advocating for extending copyright terms. And the "requiring fair and reasonable copyright exceptions and limitations that protect the Internet" is just wrong. Yes, it's true that for the first time the USTR actually acknowledges user rights in such an agreement. In the past, all such trade agreements only focused on expanding copyright holder rights. So you can argue that's progress. But the details showed that it's not creating "fair and reasonable copyright exceptions and limitations," but instead pushing a misleading tool that will limit the way countries can explore fair use, and (even more important) makes the fair use stuff optional. Google claiming that it requires such things is just... wrong.

The TPP advances other important Internet policy goals. It prohibits discrimination against foreign Internet services, limits governments’ ability to demand access to encryption keys or other cryptographic methods, requires pro-innovation telecom access policies, prohibits customs duties on digital products, requires proportionality in intellectual property remedies, and advances other key digital goals. 

Yes, this part is also a good thing that it's in the TPP, but (1) it's so outweighed by bad things that it's really not that big of a deal and (2) the issues around encryption and telecom access policies are not nearly as clear cut in the TPP as this blog post implies, nor are they necessary to do via the TPP process.

As I've said before, I'm a supporter of free trade, generally (unlike many who oppose the TPP). But the TPP is not about free trade, other than at the margins. There's so much in there that's about blatant protectionism and supporting certain business models over others. Of course, that's how the trade game is played these days. Companies get big enough to influence the USTR to advocate for closed room deals that favor them. And Google is big enough to play that game. This public support of the TPP is a part of that game, but it's unfortunate. The company could have and should have taken a stand on this, noting the things that are important in the TPP, but also being honest about the disastrous IP section and other problems in the agreement (such as the corporate sovereignty provisions that will almost certainly come back to bite Google and others).
There are good trade agreements to be made. And they can focus on things like protecting a free and open internet, and creating important safe harbors for communication and innovation. But the TPP is not that agreement -- and it's disappointing that Google has decided to jump on board, rather than highlight the very clear and very real problems of the TPP.

Filed Under: copyright, fair use, safe harbors, tpp, trade agreements, ustr
Companies: google

Greenpeace Publishes Leaked TTIP Documents... Show How Backroom Deals Are Driven By Lobbyists

from the because-of-course-they-are dept

We've written plenty of stories about the TTIP (Transatlantic Trade & Investment Partnership) agreement being worked on between the US and the EU. Think of it as the companion to the TPP, which covers the US and a variety of countries around the Pacific ocean. Like the TPP, the US has demanded extreme levels of secrecy around the negotiations (in the past, the US negotiating body, the USTR, has admitted that the more the public is aware of the details, the less likely they are to support the agreement). And while there have been reports out of the EU arguing that negotiators there are more willing to be more open about the negotiations, so far, the US has not allowed it. This has resulted in some crazy situations including secretive "reading rooms" where politicians are carefully guarded if they look at the current drafts -- and where they're not allowed to bring any device or copy anything from the documents.

Now, Greenpeace has leaked a bunch of the TTIP documents... and also set up their own "reading room" which mocks the secrecy of the current reading rooms, by making it very, very transparent:

Krasse Aktion von Greenpeace. Haben nen transparenten #TTIP Leseraum vor der US Botschaft … https://t.co/CZC0myHq5t pic.twitter.com/N0Iv8eHNwc

— Sebastian Jabbusch (@SebJabbusch) May 2, 2016

As for the contents revealed, it's pretty much what everyone suspected. Most of the focus, so far, is on details showing that the US has been pressuring the EU to loosen various consumer and environmental protections in the EU. While it hasn't received as much attention, the leak also does suggest problems for digital rights, mainly by giving telcos much more power. And while the "intellectual property" chapter does not appear to be included, one of the leaks is the "tactical state of play" document. This document isn't part of the negotiating text, but a general summary on where things are... and it's fairly revealing on a variety of topics, including intellectual property.

In the discussion on the intellectual property agreement, it notes that at the latest negotiation, the US refused to put forth "concrete proposals" on issues such as DRM, but the report notes that these are being pushed strongly by "rights holders." The EU, apparently, is nervous about what kind of language it will eventually see from the US. The US, in response, apparently told the EU negotiators that this would be a different kind of intellectual property chapter from the TPP:

A positive feature of the twelfth round of IP discussions was the US submission, for the first time, of some texts on relatively consensual areas (international treaties and general provisions). However, the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement).

When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its “model” creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA.

The report also notes that Congress' unwillingness to pass laws to stop patent trolls or in support of (awful) broadcast rights, public performance rights and resale rights, may be an issue, since all three are important to EU rightsholders. We've covered all three issues at various points in time, and all three involve basically expanding copyright law in dangerous ways that will further limit the public's rights. In this case, it looks like it's the EU that's pushing more strongly for them, which is too bad. The public performance rights have the most forward progress in the US right now, with the push to ratify the Beijing Treaty, but hopefully that's an area where legislative indifference kills a horrifically bad idea.

In short, it appears that there are a lot of competing interests on both sides of the Atlantic around the intellectual property chapter, but both sides appear to be focused almost entirely on the protectionist, anti-innovation, anti-public interests of specific rights holders and how to make them happy. There's basically no discussion of how all of this impacts the public.

That's not too surprising, but it also shows why they've worked so hard to keep these documents from being seen by the public. The TTIP agreement was already way behind the TPP agreement, and it's quite doubtful that a final agreement will be reached before the new US administration is in place, which could result in some pretty massive changes in terms of what the White House is demanding. But, as of right now, the agreement looks like yet another mess where lobbyists try to divvy up the spoils in taking things away from the public.

Filed Under: backroom deals, eu, intellectual property, leak, lobbyists, tafta, transparency, ttip, ustr
Companies: greenpeace

USTR: Foreign Governments Engaging In Censorship And Rights Abuses Should Add IP Enforcement To Their 'To Do' Lists

from the let-the-USTR-set-your-priorities-for-you dept

If it's mid-spring, it means it's time for the US Trade Representative's "Special 301 Report," the annual "event" that names and shames countries who don't live up to US industries' intellectual property protection ideals. The same countries that have made the list for years still make the list, although a few have moved up a notch from the "Priority Watch" list to just the normal "Watch" list.

There are lots of familiar names on the lists, including such perennial favorites as China, India, Russia and… Canada. The report offers congratulations to countries like Italy, which has managed to steer clear of the watchlists by instituting censorious IP enforcement procedures like site-blocking. And it pats other countries on the head for ceding to the USTR's IP imperialism in exchange for upgraded 301 listings.

USTR has noted the willingness of two Watch List countries, Turkmenistan and Tajikistan, to work with the United States on improving their IPR protection and enforcement regimes and will conduct an OCR for each country to evaluate whether specific steps taken merit their removal from the Watch List.

The USTR has no interest in determining whether the US's IP laws are actually a good fit for other nations, especially those with a host of more pressing problems. All it cares about it whether they live up to the American ideal, as stated by the loudest "more-is-better" IP enforcement proponents. All in all, it's a completely ridiculous bit of paper rattling, served up annually for maximum theatricality.

Sadly, many of those who have landed on the USTR's Naughty 301 list take this process far too seriously. Even at its gravest, the USTR's only real threat is that if things don't change, it will be forced to print out Country X's name under a different bold sub-header in next year's report.

USTR extends the current OCR of Paraguay, which is currently on the Watch List, to provide additional time for conclusion of a bilateral IPR Memorandum of Understanding (MOU). USTR encourages Paraguay to conclude the MOU by June 30, 2015, and notes that if Paraguay does not do so, USTR will evaluate possible implications accordingly, including with respect to Paraguay’s status under Special 301.

Meanwhile, the USTR wants governments with histories of human rights abuses to institute stricter IP-related policies -- one that should better aid them in achieving their censorious ends. Thailand, which has already put mass internet surveillance in place to make sure its king remains unbesmirched, is encouraged to put its police force to use to round up infringers. Pakistan, itself engaged in censorship and mass surveillance of its citizens, is told it should hand over ex officio power to law enforcement to move against infringers without having to wait around for rights holder complaints. Ecuador, which already knows a thing or two about abusing the DMCA process, is elevated to the "Priority" list for not treating other nations' IP as worthy of the same sort of censorious actions. The USTR wants Mexico to divert law enforcement resources to combating counterfeiting and piracy, as if dealing with the consequences of four decades of US drug warring wasn't enough to keep it busy. And the USTR issues demands to Venezuela, as if that dumpster fire of a government has any interest in listening to what a US representative has to say -- especially one acting on behalf of a handful of US industries.

Like every year, the report is a joke. And it's not even a report -- not in the normal definition of the word. There's no independent action by the USTR to investigate IP laws and violations elsewhere in the world. Instead, it relies on submissions from entities like the MPAA and BSA and writes their accusations up as a "report" on the state of IP protections elsewhere in the world. Unfortunately, there aren't enough countries in on the joke. Canada, for one, at least issues nothing more than an eye roll in response to being listed as one of the world's top offenders, despite having IP laws at least as stringent as the United States'. And there's something both surreal and ugly about a process that includes the executive vice president of the American Apparel and Footwear Association -- whose members depend heavily on cheap foreign labor -- complaining that other countries aren't doing enough to prevent citizens from purchasing affordable knockoffs of the same clothes they're making for US companies, but can't actually afford to buy.

Filed Under: canada, censorship, copyright, ecuador, intellectual property, mexico, pakistan, special 301, special 301 report, ustr

USTR Finally Recognizes That The Internet Matters... And That Censorship, Site Blocking & Link Taxes Are Barriers

from the good-to-see dept

As part of our funding campaign for our coverage of encryption, we reached out to some companies that care about these issues to ask them to show their support. This post is sponsored by Golden Frog, a company dedicated to online privacy, security and freedom.

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For many, many years we've hit pretty hard at the USTR (United States Trade Rep) for appearing to basically view trade and trade agreements solely through the lens of 20th century industry, without any recognition of the importance of startups and innovation -- especially on the internet. As such, many of the policies that the USTR has promoted through trade agreements seemed almost entirely focused on baking in and protecting potentially obsolete business models, and stifling innovation and competition. Many people have pointed this out over the years, but the USTR tends to spend most of its time with lobbyists and representatives from the big, old industries, rather than startups and innovators that are actually building the businesses of tomorrow. I mean, how else can you explain that the focus on internet related issues doesn't seem to change in trade agreements, despite massive changes in the actual tech ecosystem?

So it was at least marginally encouraging to see that the USTR actually recognizes internet and internet related issues as trade barriers in its new National Trade Estimate report (which clocks in at nearly 500 pages). The big (and important) headline, that was picked up by the press, was that the USTR (FINALLY!) is willing to recognize the Great Firewall of China and other internet censorship regimes as a "barrier to trade."

Over the past decade, China’s filtering of cross-border Internet traffic has posed a significant burden to foreign suppliers, hurting both Internet sites themselves, and users who often depend on them for their businesses. Outright blocking of websites appears to have worsened over the past year, with 8 of the top 25 most trafficked global sites now blocked in China. Much of the blocking appears arbitrary; for example, a major home improvement site in the United States, which would appear wholly innocuous, is typical of sites likely swept up by the Great Firewall.

China has hit back against this claim, arguing that the Great Firewall is not about trade barriers, but "about national security," which is a somewhat laughable claim.

Still, as an article by Matt Schruers at the Disruptive Competition Project notes, the document actually goes much further in calling out other bad internet practices in other countries. For example, it calls out new rules in India that undermine intermediary liability protections and lead to censorship by ISPs:

India’s 2011 Information Technology Rules govern the liability of internet intermediaries (internet service providers (ISPs), hosting services, search engines, social networks, online forums, and other web platforms) for content on their networks. U.S. stakeholders have raised concerns that these rules are vague and inconsistently applied, and do not provide safeguards against abuse of the process. Any citizen can complain that certain content is “disparaging” or “harmful,” and intermediaries must respond by removing that content within 36 hours. Failure to act, even in the absence of a court order, can lead to liability for the intermediary. Such strict rules encourage over-compliance with takedown notices, causing intermediaries to remove content that may not be illegal. Foreign companies providing internet services in India are forced to choose between needlessly censoring their customers and subjecting themselves to the possibility of legal action.

It calls out countries like Pakistan for establishing site-blocking regimes that have resulted in YouTube and WordPress being completely blocked in the country:

Pakistan has blocked access to websites deemed to be blasphemous or immoral, including YouTube, which has been blocked since September 2012, and WordPress, which was temporarily blocked for several days in 2015 with little explanation from the authorities. YouTube reopened in January 2016 after Google created a country specific site which allows the government of Pakistan to request the removal or blockage of content. Pakistan has also intermittently blocked both Facebook and Twitter, while Facebook is routinely asked by the government to censor material deemed to be blasphemous.

It's also really good -- if fairly surprising -- to see the USTR note that the EU's "Digital Single Market" plans with things like increased intermediary liability could result in serious problems for free expression. Even better, the USTR recognizes that these moves to increase intermediary liability are almost entirely about legacy companies trying to shackle innovators, competitors and upstarts:

The Commission is simultaneously exploring whether to increase online intermediaries’ network and system management responsibilities as they pertain to illegal content and to require some platforms to more proactively monitor and filter such content (i.e., a “duty of care”), despite logistical difficulties and implications for free expression. Consequently, the Commission may eventually introduce a new regulatory regime to more tightly control platforms’ behaviors. The e-Commerce Directive 2000/31/EC currently grants limitations of liability to intermediary service providers.

Both these initiatives appear motivated, at least in part, by legacy businesses struggling to compete against the efficiencies provided by Internet-based commerce. This underscores the risk that even well-intentioned goals can, if implemented through heavy-handed regulation, or even just threat thereof, seriously undermine innovative business development and hurt the EU’s own efforts to inject more dynamism into its markets.

The USTR also calls out the ridiculous "Google tax" concept, also known as "link taxes" or "ancillary copyright" that have been seen in a variety of European countries, that would require sites that aggregate and link to news sites to pay those news sites for the privilege of sending them traffic. As the USTR rightly notes, this is clearly a trade barrier in the free flow of information:

Over the past several years, publishers in Europe have been advocating for the right to impose fees for the right to link to content published online. This effort appears to target in particular news aggregators that index stories and allow users to more conveniently find and access such content by the inclusion in search results of headlines or other extracts of the stories that the underlying publisher typically offers, without charge (e.g., supported by advertising) on its own website. Aggregators, including but not limited to U.S. service suppliers, have pushed back against such requirements, arguing that that they help drive traffic to publishing sites, and therefore help increase viewership and revenue, and should not be required to pay for a valuable service they provide. After Belgium and Germany attempted to impose such requirements, some aggregators simply dropped links to sites seeking additional compensation, causing publishers in those countries to opt out of requiring such payments after they evaluated the economic impact. In late 2014, however, Spain passed a similar measure called “Canon AEDE,” which, unlike in Germany and Belgium, made such payments mandatory (i.e., publishers could not opt out of requiring payments for links). As a result of this new law, many aggregators, including from the United States, simply pulled out of the Spanish market. A 2015 study by the Spanish Association of Publishers of Periodical Publications (AEEP) revealed that publishers’ revenue decreased and that many smaller publishers, which had depended on aggregators, were disproportionately affected. Since parts of the EU publishing industry are advocating adopting similar measures EU-wide, which will likely have a negative effect on many U.S. stakeholders, this issue bears careful monitoring, as well as stepped-up engagement with the EU to ensure that innovative business models are beneficial to EU content suppliers themselves.

Of course, there's lots of other stuff in the report that is quite concerning (I mean, this is the USTR we're talking about). Ridiculously, some of it even contradicts the points we've raised above. For example, the report repeatedly talks about stronger copyright enforcement and encourages more actions against those who link to infringing content. There's obviously a big disconnect here within the USTR -- in that it doesn't seem to realize that whining about intellectual property in these situations just gives various countries exactly the cover they need to leave in place the ideas discussed above. Don't want your Great Firewall to look like it's about censoring dissent? Just claim it's necessary to stop piracy online! Still want to tax links? Just explain how it's an anti-piracy measure to make sure links are tracked and evaluated to make sure their content is not infringing!

So, yes, this is still the same old USTR on the one hand. But, in the past, the USTR just focused on issues like that, not realizing how it was playing into the hands of others who looked to control and censor the internet, and to stifle innovation. At least now, for the first time, at least someone at the USTR is recognizing how important issues like censorship, site blocking, intermediary liability and the free flow of information online may be. Given how long it's taken, it may feel a bit late, but it's at least an encouraging step in the right direction.

Hopefully, it means the attitudes within the USTR are shifting and it may actually start to focus on the issues that are important in keeping the internet open globally.

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Filed Under: censorship, sponsored post, ustr

Shoe Company New Balance Says US Gov't Basically Offered It A Bribe To Support TPP

from the wow dept

We've mostly focused on the impact of the TPP and trade deals on the internet (and also on national sovereignty), because that's the kind of stuff that interests us most around here. We've spent a lot less time looking at the more traditional free trade arguments, in part because that's not nearly as controversial, and in part because -- despite claims to the contrary -- there really aren't that many tariff-related barriers that make a big difference any more. It's generally good to reduce such tariffs, and in response you see the typical response from firms based on whether or not they benefit from those reduced tariffs. The "benefits" of free trade tend to be focused on the companies looking to expand into those markets where tariffs are being lowered or abandoned -- and not so much for companies competing against products from those same countries. Frankly, I find arguments that the companies who freak out about trade deals because it will mean more competition against them a bit tiresome, because I tend to believe competition is a good thing for innovation.

However, the Boston Globe has quite a story about one such company, the sneaker company New Balance, which was quite worried about how the TPP would increase competition from shoemakers in Vietnam. Again, I find those concerns to be overblown, but the next part of the story is where it gets interesting: New Balance is now claiming that it stopped publicly complaining about the TPP after the US government more or less promised it a big government contract, which never came through:

After several years of resistance to the Trans-Pacific Partnership, a pact aimed at making it easier to conduct trade among the United States and 11 other countries, the Boston company had gone quiet last year. New Balance officials say one big reason is that they were told the Department of Defense would give them serious consideration for a contract to outfit recruits with athletic shoes.

But no order has been placed, and New Balance officials say the Pentagon is intentionally delaying any purchase.

New Balance is reviving its fight against the trade deal...

The US government, of course, is insisting the issue of a contract is entirely separate from the TPP, but New Balance said an explicit offer was made. The company notes that while most of the uniform worn by the military is American made, there has always been an exception for sneakers because so few were actually fully made in the US. New Balance apparently decided to change that in hopes of getting a government contract, and the administration more or less said that this would work if New Balance shut up about opposing the TPP:

In 2014, the Pentagon relented. With competition among US manufacturers, officials said they were ready to consider domestically made shoes.

LeBretton said a representative for the Obama administration then asked New Balance to accept a compromise version of the trade deal, partly in exchange for a pledge of help getting the Department the Defense to expedite the purchase of US-made shoes.

The Globe claims that the Defense Department says the reason that it didn't give New Balance a deal was because its shoes weren't durable or cheap enough, but even if that's true, the very idea that the government more or less tried to buy off the company's opposition to the TPP seems highly questionable.

Of course, I wonder, should the TPP get ratified and should the Defense Department then agree that it will only buy American made sneakers... one wonders if Vietnamese sneaker makers would then have an ISDS corporate sovereignty case against the US government? After all, it would be harming "future profits" that the Vietnamese sneaker-makers would have been expecting, and a "buy American" rule could clearly be seen as a non-tariff trade barrier to foreign goods, no?

Filed Under: competition, defense department, shoes, sneakers, tariffs, tpp, ustr
Companies: new balance

Two Former White House Tech Advisors Tell The President To Actually Be Transparent About Trade Deals

from the what-a-concept dept

Two former Obama tech staffers -- Professor Colleen Chien (who advised the administration on intellectual property issues) and Quentin Palfrey (who worked for years in the Commerce Dept and the Office of Science and Technology Policy on intellectual property issues) -- have written a fantastic opinion piece for The Hill, arguing that the White House has one last chance to actually be transparent in trade negotiations as it moves forward with the TTIP agreement with the EU. The piece notes that part of the reason that the TPP agreement is in so much trouble was its secrecy:

Largely due to the secrecy of the negotiation process, the TPP long bred suspicion. When its terms finally became public last fall, opposition to the process quickly hardened into opposition to the agreement’s terms – which both Democrats and Republicans say need improvement before it can be passed. The text has been 10 years in the making, but only recently did the public get access to its terms. Since multiple leaks made most of the negotiated terms an open secret, why did the Administration wait so long to formally disclose the text?

They admit that the USTR's standard answer -- that trade negotiations rely on secrecy, and you don't want to give up an advantage -- may have some validity, but argue that it's almost certainly outweighed by other factors. They then raise three key points for being much more open and transparent on trade deals (all issues we've raised in the past):

1. Quality suffers when there is no free and open debate.
2. "Exporting U.S. law" is hard and can lead to unintended consequences.
3. Trade policy should reflect our democratic ideals

To be honest, all three of these are basically the same argument phrased differently, but they're all valid points. And they then urge the White House and the USTR to take the (not really that big) step of opening up the negotiating texts of the TTIP agreement. Since it's just between the EU and the US, it's not even as complicated as the TPP where you were negotiating with over a dozen countries. And the EU has been much more transparent in negotiating its trade deals, and has pledged to be on the TTIP as well. So, really, why does the USTR continue to take such an undemocratic, archaic viewpoint in negotiating these deals? The only explanation that makes sense is that it's the best way to sneak in favors for certain industries -- and given the ongoing "revolving door" between the USTR and certain large, legacy industries, perhaps that really does explain most of the issue.

Filed Under: colleen chien, democracy, obama administration, quentin palfrey, secrecy, tpp, trade, transparency, ttip, ustr