Law Professor Questions The Absurd Secrecy Around The TPP Agreement

from the why-is-this-acceptable? dept

I recently had the pleasure of being interviewed by law professor David Levine for his radio show/podcast, Hearsay Culture. The episode has aired on the radio, and I believe it will go up as a podcast soon as well. However, he's also written a fantastic article summarizing the absurdity of the secrecy around the Trans Pacific Partnership (TPP) Agreement:

Imagine being invited to formally offer input on a huge piece of legislation, a proposed international agreement that could cover everything from intellectual property rights on the Internet to access to medicine to investment rights in the agreement’s signatory countries. For 10 minutes, you’d be able to say whatever you’d like about the proposed law—good, bad, or indifferent—to everyone involved in the negotiations. But there’s a caveat: All of your questions, all of your input, on what may be the most controversial part of the package, would have to be based on a version of the proposed international agreement that was 16 months old. And in that 16-month period, there were eight rounds of negotiations that could have changed any and all of the text to which you had access, but no one could tell you if that version was still accurate.

Would you still take the deal? This is not a hypothetical question; rather, this is the take-it-or-leave-it offer made to the public in May by the United States Trade Representative regarding the intellectual property rights chapter of the massively important but little-known Trans-Pacific Partnership Agreement (TPP).

Levine is learning, first-hand, about "transparency" -- USTR style, where everything is kept secret, but you're cheerful about telling people who actually would like to help and could provide valuable feedback to come along... but then they're never allowed to actually see the document in question.

This is a travesty. It's certainly not democracy. It's a joke carried out by a government department that appears to be out of control -- focused mainly on helping a few industry groups with little concern about the public, despite how widely they'll be impacted by such laws and rules.

Filed Under: david levine, secrecy, tpp, ustr

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

How Not To Build A 21st Century Trade Agreement: In Secret

from the government-failures dept

The USTR continues to pitch the Trans Pacific Partnership (TPP) agreement as a "21st Century" trade agreement. However, as the folks at EFF point out, the defining aspect of the 21st century is the fact that the internet has enabled unrivaled transparency. A trade agreement created in secret -- though with special access for special interests -- is not a 21st-century agreement at all. It's the opposite. It's a last-century viewpoint on how the world works.

We're still not convinced it’s an agreement adequate for 21^st century society--especially in an environment where the public, Congress, and civil rights organizations are denied access to the treaty’s official text, while corporate representatives have full access to it. In a world where you can access the complete state code of Utah in Github to engage citizens in legislative drafting, secrecy and backroom deals are not exactly a 21^st century way to build the 21^st century society.

It's still never been adequately explained why the USTR feels the need for such secrecy and backroom deals. At best, the answer has been "this is how we always negotiate trade agreements." That's not an answer, that's an excuse. If the USTR is serious about building a trade agreement for the 21st century, it would recognize that it needs to be open and transparent.

Filed Under: tpp, transparency, ustr
Companies: eff

Let The Judiciary Committee Know That Creating A Mini-SOPA Without Public Participation Is Unacceptable

from the speak-up dept

Yesterday, we wrote about how Lamar Smith was rushing through a new bill that looked to approve a piece of SOPA that would spend taxpayer money to expand the diplomatic corp with a bunch of people whose job it would be to spread Hollywood's special copyright interests around the globe... and to set up a special agency for this in the Commerce Department. Despite the public rebuke Lamar Smith got for his efforts to write SOPA in secret and then to rush it through, he apparently didn't learn much and chose to do this bill the same way. It was put on the schedule to be marked up without the bill even being announced -- basically a way to rush it through in secret.

It appears that this plan is falling apart. The markup did not happen this morning, and we're hearing that support for the bill is wavering. Some of the named co-sponsors have made it clear that they're just as unhappy that the bill was being rushed out this way without public comment and were uncomfortable with some of the specifics in the bill -- and that these concerns mean that the bill may actually be delayed. It may be a very temporary delay, but it does sound like some of the "co-sponsors" may have changed their minds and won't be supporting the bill. And, for the time being, the markup has been called off.

There is still a lot of back and forth going on, and it's still important to speak up. Public Knowledge pointed out that the House Judiciary Committee and Lamar Smith need to learn that secret bills are a non-starter, and they're absolutely right.

Before getting to the substance of the bill, perhaps the most shocking thing about it is how it is being handled by Committee Chairman Smith (who was a driving force behind SOPA). If Congress learned no other lesson from SOPA and PIPA, you would think that they got the message about not developing IP-related laws in secret. But you would be wrong. This bill leaked, fully formed, over the weekend and was scheduled for markup today. Needless to say, this came as a surprise to just about everyone not directly involved with drafting it and provided a very limited opportunity to meaningfully participate in the markup process. Step zero for any new IP bill should be a transparent drafting process.

Given that this is still a highly fluid situation, if you're represented by any of the members of the House Judiciary Committee, you might want to give them a call and let them know that you opposed SOPA and you're shocked that the HJC might push through a piece of SOPA in a process that was even more secretive than the one for SOPA itself.

Filed Under: commerce department, diplomatic corp, house judiciary committee, lamar smith, sopa, ustr

Lamar Smith Looking To Sneak Through SOPA In Bits & Pieces, Starting With Expanding Hollywood's Global Police Force

from the learned-anything? dept

While it didn't get nearly as much attention as other parts of SOPA, one section in the bill that greatly concerned us was the massive expansion of the diplomatic corp.'s "IP attaches." If you're unfamiliar with the program, basically IP attaches are "diplomats" (and I use the term loosely) who go around the globe pushing a copyright maximalist position on pretty much every other country. Their role is not to support more effective or more reasonable IP policy. It is solely to increase expansion, and basically act as Hollywood's personal thugs pressuring other countries to do the will of the major studios and labels. The role is literally defined as pushing for "aggressive support for enforcement action" throughout the world. A few years ago, we detailed how, at a meeting of these attaches, they bitched and complained about how copyright "activists" were making their lives difficult and were a "threat" who needed to be dealt with.

In other words, these people are not neutral. They do not have the best interests of the public or the country in mind. Their job is solely to push the copyright maximalist views of the legacy entertainment industry around the globe, and position it as the will of the US government.

It was good that this was defeated as a part of SOPA... but now comes the news that Lamar Smith is introducing a new bill that not only brings back this part, but appears to expand it and make it an even bigger deal. Politico has a short blurb:

SMITH, OTHERS UNVEIL IP BILL -- House Judiciary Committee chief Lamar Smith and other members are unveiling today their new Intellectual Property Attache Act, which realigns the Commerce Department a bit. The measure as proposed would move the current attache program housed with the USPTO to the full agency, complete with an assistant secretary of Commerce for Intellectual Property. The proposal is slated for full committee markup on Tuesday. Named as supporters on the measure are a number of panel Dems and Republicans: Reps. Bob Goodlatte, Mel Watt, Darrell Issa, Howard Berman, Howard Coble, Steve Chabot, Jason Chaffetz and Adam Schiff

You can see the current draft of the bill (pdf and embedded below), but it has not yet been officially introduced. However, the House Judiciary Committee is scheduled to mark it up in the morning, suggesting that it's on the fast track, with almost no public scrutiny. In fact, I've heard from people worried about this bill that they were only told of its existence on Saturday.

The specifics of the bill appear to go further than the version in SOPA. It is clear that the bill itself is framed from the maximalist perspective. There is nothing about the rights of the public, or of other countries to design their own IP regimes. It notes that the role of the attaches is:

to advance the intellectual property rights of United States persons and their licensees;

The bill also "elevates" the IP attaches out of the US Patent and Trademark Office, and sets them up as their own agency, including a new role: the Assistant Secretary of Commerce for Intellectual Property. Yes, we'll get another IP Czar, this time focused in the Commerce Department.

When even the USTR is recognizing the importance of limitations and exceptions to copyright, to have Congress push a bill that basically ignores limitations and exceptions and only looks to expand Hollywood's special thugs within the diplomatic corp. seems like a huge problem.

But the even bigger issue is a simple one of process. Shouldn't Lamar Smith have learned by now that you don't try to sneak through SOPA or any of its components without first getting widespread public opinion on these things?

Filed Under: commerce department, diplomatic corp, lamar smith, sopa, ustr

Petition With 90,000 Signatures Of People Worried About TPP Hand Delivered To USTR Negotiators

from the will-it-matter dept

USTR negotiators have basically acted as if they represent the interests of big businesses in their negotiations on various trade proposals. That's why we get things like ACTA, TPP and various "free trade agreements" (FTAs) that all seem to focus on carving out protections for specific special interests who just happen to sit on the USTR's "advisory committees." What they often forget is that they're supposed to be representing the public. But, at times, they're so disconnected from the public that what's best for the actual country rarely seems to enter into the thought process. Of course, with the uprising against ACTA, perhaps some people at the USTR are beginning to wake up to the fact that their roles aren't just about making special interests happy. The recent admission that limitations and exceptions are important in copyright is a sign that this kind of thinking may be filtering through.

Last week, a group of public interests organizations also hand delivered an online petition that was signed by over 90,000 people raising concerns about TPP. I generally don't think much of online petitions like this, but in this situation, where's it's incredibly important for the USTR to recognize that the public and internet users are watching -- and are concerned -- something like this seems like it could be helpful in at least making the USTR negotiators recognize that the public matters.

Of course, for them to prove that they really understand that, they'd need to start being a hell of a lot more transparent, such as by releasing the US recommendations that are being negotiated. Until that happens, it's difficult to trust the USTR to really be looking out for the public's best interests.

Filed Under: acta, fta, petition, tpp, transparency, ustr

Will The Failures Of SOPA & ACTA Highlight The End Of The MPAA & RIAA's Disproportionate Influence On Policy?

from the this-isn't-industry-vs.-the-public dept

Following the rejection of ACTA and the surprising USTR recognition of copyright exceptions and limitations, Harold Feld has a really worthwhile postgame analysis that highlights why pretty much every other industry (and the US government) should be pissed off at the MPAA and the RIAA. Basically, he points out that there were aspects of reasonableness in those efforts: some of the parts focused on real counterfeiting. But because the MPAA and RIAA decided to use an incredibly heavy-handed approach to get the US government to include totally unrelated copyright issues among them, both proposals completely flopped. If those efforts had just focused on the issue of real harm -- true counterfeit products that are confusing people and even putting lives at risk -- no one would be opposed. But due to this ongoing desire to conflate copyright infringement with counterfeit drugs, they overplayed their hand -- and all of that effort is now wasted.

Keep in mind that the majority of people working for USTR don’t like to waste effort any more than the rest of us, and the realization that a significant portion of the rest of the world may reject whatever final deal negotiators agree to if it goes too far on copyright is no doubt causing many to rethink their positions. In addition, USTR has many other industries it services besides Hollywood. They need trade agreements — and USTR is required to negotiate these. The Hollywood crazy train on intellectual property enforcement now very visibly threatens the ability to get future trade agreements ratified by Congress or by foreign governments. The manufacturing sector, the retail sector, and others that have until now tolerated Hollywood’s demands in the interest of maintaining a united industry front will not sacrifice their own international trade interests for the Entertainment industry — and will push USTR to negotiate agreements that actually have a chance at ratification.

This, obviously, seems like a good thing. As he notes, the USTR now has a lot of incentives to actually be more open and to listen to those who helped kill off SOPA and ACTA. If they actually want to have their proposals mean something, they might as well start talking to those who have the influence to do something meaningful. And that's less and less the RIAA and the MPAA.

Of course, this goes even further than that. While Feld talks up the increasing importance of activists in the conversation, I'd argue that it should also lead to most other industries pushing back on the RIAA/MPAA's crazy demands as well. Perhaps the US Chamber of Commerce will start to reconsider pushing the RIAA/MPAA point of view when it's clearly harmful to the interests of most other industries.

Filed Under: acta, hollywood, pipa, sopa, ustr
Companies: chamber of commerce, mpaa, riaa

Still Plenty To Be Concerned About With TPP

from the being-more-public-would-be-good dept

While we are encouraged by the USTR's supposed recognition of the importance of limitations and exceptions in copyright law in their latest TPP draft proposal, there are still significant concerns about the TPP agreement, as a whole, including with the very specifics of the language around exceptions and limitations. Already, a few folks who have been burned before by the USTR are worried that the language being used is so narrow as to only allow fair use-like exceptions in a very narrow set of circumstances. Furthermore, as Sean Flynn lays out, there are many other key issues at stake in the specifics of the text around the IP provisions, way beyond just the limitations and exceptions. These include questions about the copyright status of "temporary copies" (think cached copies), parallel importation ("gray market"), copyright term extension, digital locks and a few other things as well.

You know what would make it so that people weren't so damned concerned about all of this? Opening up the proposed text so that the public can comment on it and give feedback. The fact that the USTR was willing to reveal that it's included a section on limitations and exceptions was nice... but, in part, helped to show the problem: that the USTR only gets to reveal little bits of info it wants to reveal, rather than presenting the document in an open fashion for public comment. That's not transparent at all. We're encouraged to hear that the USTR did share the "exceptions and limitations" language with some who weren't part of the formal "advisory committee" process, but we're still not talking about an open and transparent process -- and without that there are all sorts of opportunities for problems to arise.

Filed Under: ron kirk, tpp, transparency, ustr

USTR's Surprise Turnaround: Now Advocating Limitations & Exceptions To Copyright

from the who-are-you-and-what-have-you-done-with-ron-kirk? dept

One of the big complaints about ACTA and SOPA and the like was the extreme maximalist positions that they entailed, without recognizing the very important exceptions and limitations that can often be even more important in encouraging culture and creativity. The version of the US's recommendations on the IP chapter of the Trans Pacific Partnership (TPP) agreement that leaked last year, suggested a similar maximalist approach: all enforcement, all the time, no concern about limitations or exceptions.

In a somewhat surprising turnaround, the USTR has now admitted that it is actively embracing limitations and exceptions in its latest proposal around IP for TPP:

For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test," that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.

Given the USTR's general lack of transparency and intellectually insulting attitude towards anyone who questions TPP and ACTA transparency, I don't trust the USTR on its commitment to this... but I have been hearing from multiple sources that the protests against SOPA and ACTA have had a big impact on the administration's thinking on intellectual property issues... and that the MPAA/RIAA folks are not at all happy about the latest version of the USTR's IP chapter. There have also been multiple assurances that the USTR will fight strongly to make sure that this language on exceptions remains in the agreement, even if some of its "advisers" from the legacy content industry don't like it. That suggests that maybe, just maybe, some voices of reason have gotten through to the USTR.

All that said, this requires very close scrutiny. And, of course, there's all sorts of things that can be hidden in the language -- which, of course, the USTR still has not revealed. In the interest of openness and making sure that these provisions actually are in the best interest of the public, it would be nice to actually have the USTR live up to its transparency commitments and publish the specific text that relates to these limitations and exceptions. On top of that, the so-called "3-step test" that the USTR mentions is somewhat limited (and a bit antiquated) in these modern times with an internet where things like mashups and remixing occur on a daily basis. It would obviously be a lot nicer if we actually moved forward with our limitations and exceptions to copyright law to bring them into the 21st century -- but having the USTR actually acknowledge such limitations and exceptions as an important part of the IP chapter on TPP is a huge (almost monumental) step forward.

Either way -- and I know that some people will never trust anything from the USTR considering how many bridges it has burned -- the USTR deserves at least some kudos for taking this surprising step, and hopefully it continues to recognize that this is an important issue. With further exploration, and further acknowledgement that the MPAA/RIAA's view of thew world is not the only one, perhaps the USTR can recognize that setting up a maximalist/protectionist plan does not help the US, the economy or creativity. Enabling a more functional system, including knocking down the barriers that copyright sometimes sets up, is a much more effective path.

Filed Under: acta, fair use, sopa, tpp, transparency, ustr
Companies: mpaa, riaa

USTR Rejects Rep. Issa's Request To Observe TPP Negotiations

from the sorry,-we-can't-have-that-kind-of-transparency dept

So much for "transparency." While the USTR continues to talk up its faux transparency as if it's real transparency, the truth is always going to come out. Earlier this week, we wrote about how Rep. Darrell Issa had asked the USTR if he could come and observe the next round of TPP negotiations, taking place next week in San Diego. The USTR took all of two days to reject such a request, showing that it's not at all interested in any sort of actual transparency with the Congress who is supposed to oversee issues of international commerce. The USTR told Issa he could only attend the "public" portions, like anyone else. In response, Issa put out the following statement:

“The U.S. Trade Representative has once again chosen to block Congress from observing negotiations for this vital trade agreement over which the House and Senate have fundamental constitutional responsibility.

“The TPP process should be transparent and open to oversight, not a secretive backroom negotiation. TPP agreements impact multiple sectors of the American economy--especially our ability to innovate and create new intellectual property, as well as preserve an open Internet.

“Congress has a constitutional duty to oversee trade negotiations and not simply act as a rubber stamp to deals about which they were kept in the dark. While I had hoped the TPP would permit me to observe this round of the negotiation process firsthand, our efforts to open TPP negotiations up to transparency will continue.”

Filed Under: darrell issa, negotiations, ron kirk, tpp, transparency, ustr