EU Mandate For TAFTA Leaked: Includes Investor-State Dispute Resolution For Intellectual Monopolies

from the but-what-about-transparency? dept

One of the concerns about TAFTA/TTIP is that it would repeat the mistakes of ACTA and SOPA as far as intellectual monopolies were concerned. This led to a call by a group of public interest organizations for things like copyright and patents to be excluded from TAFTA (disclosure: I was involved in the drawing up of the text.) Needless to say, no notice was taken of that, and a couple of weeks ago the European Parliament duly passed a resolution on TAFTA that said:

the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including geographical indications, and should be consistent with existing international agreements;

However, the important document is the one from the European Commission laying down the Directives that set the terms for the negotiations. By a happy chance, the German blog netzpolitik.org has just come into possession of a draft of these, and made them freely available (Microsoft Word document.)

The section dealing with intellectual monopolies confirms that they form part of the mandate, but is otherwise not very illuminating:

27. The Agreement shall cover issues related to intellectual property rights and should complement and build upon the TRIPS. The Agreement will reflect the high value placed by both Parties on intellectual property protection and build on the existing EU-US dialogue in this sphere.

28. Negotiations should, in particular, address areas most relevant for fostering the exchange of goods and services with IP content, with a view to supporting innovation. Negotiations should provide for enhanced protection of EU Geographical Indications through the Agreement. Both sides should explore opportunities to address other significant IPR issues.

It will be interesting to see how the attempt to protect EU Geographical Indications -- things like Parma ham -- goes given the US's long-standing dislike of them. But much more significant than this rather perfunctory section on intellectual monopolies is the one dealing with the increasingly-important area of investor-state dispute resolution:

Scope: the investment protection chapter of the Agreement should cover a broad range of investors and their investments, intellectual property rights included, whether the investment is made before or after the entry into force of the Agreement.

...

Enforcement: the Agreement should aim to provide for an effective and state-of-the-art investor-to-state dispute settlement mechanism, providing for transparency, independence of arbitrators and predictability of the Agreement, including through the possibility of binding interpretation of the Agreement by the Parties. State-to-state dispute settlement should be included, but should not interfere with the right of investors to have recourse to the investor-to-state dispute settlement mechanisms.

One of the key phrases here is "intellectual property rights included". That's deeply troubling because it essentially legitimizes attempts to extend a mechanism originally designed to prevent rogue states expropriating physical property from investors to the realm of intellectual monopolies. That is the basis of the argument made by Eli Lilly in suing Canada for $100 million, claiming that its "investment" in developing a drug had been expropriated by the courts there by not granting a patent on it.

It's not hard to imagine a similar approach being taken in the computer world if European countries definitively throw out software patents, as Germany is contemplating. US companies might sue for what they would claim is an "expropriation" of their investment and future rents. Similarly, if the US ever reduces the term of copyright, as the Register of Copyright, Maria Pallante, has called for, European publishers might sue the US government for the "expropriation" of their monopoly rights. The winners here will be big companies and their lawyers; losers will be the public in both the EU and US, who will be forced to "compensate" companies for these supposed losses, and who will find their national laws overruled by secret tribunals.

It's worth reading the whole document, not least because you and I weren't supposed to -- it's marked "restricted". And talking of transparency, here's what the European Commission is instructing its negotiators to push for in this area:

The Agreement will address issues of transparency. To this end, it will include provisions on:

The commitment to consult stakeholders in advance of the introduction of measures with an impact on trade and investment;
The publication of general rules and measures with an impact on international trade and investment in goods and services;
Transparency as regards the application of measures having an impact on international trade and investment in goods or services.

That feeble list of non-measures is hardly what most of us think of as "transparency". But of course, the irony here is that even in the face of this failure to take openness seriously, a leak has already occurred, allowing anyone to read the supposedly confidential document. And judging by what has happened with ACTA and TPP in the past, further leaks of key texts will occur despite the best efforts of the negotiating parties to keep everything behind closed doors. So why not release all documents that have been tabled -- that is, those that are no longer secret? Being able to read them ought to be the right of citizens on both sides of the Atlantic; refusing to distribute them makes a mockery of the idea that the TAFTA/TTIP negotiations are being conducted in the public's name.

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Filed Under: eu, intellectual property, investor-state dispute resolution, leak, tafta, ttip

FDA Spied On Emails To Try To Silence Critics

from the and-it-may-have-just-made-new-critics dept

We've discussed how the government often seems much more focused on silencing leaks of information, rather than recognizing that those leaks are often highlighting serious misconduct. The latest example involves the Food and Drug Administration (FDA), who apparently started trying to find the source of a leak, but in the end started collecting thousands of emails to try to stifle all sorts of criticism of the FDA, as revealed by the NY Times over the weekend.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

The details show that the FDA installed key logger software on the computers of their own scientists, tracked the personal emails they wrote to others, and tracked documents they copied to key drives. Now, you can make a reasonable argument that since these were work laptops, the FDA has every right to track the usage, but it seems pretty clear that the FDA went really far here, and it wasn't just about stopping leaks, but about trying to stifle criticism and whistleblowing.

In fact, much of the evidence suggests that this absolutely was an attempt to blow the whistle on faulty review procedures by the FDA, that resulted in the approval of medical imaging devices that weren't actually safe. And, apparently, the complaints by the whistleblowers were convincing enough that there's now a Congressional investigation into "a substantial and specific danger to public safety" from this activity.

If the FDA were functioning as it was supposed to, it would have seen these complaints as a reason to investigate its own activities. Instead, in the supposed attempt to "stop leaks," the FDA used this info to try to squelch the attempt to have its own practices investigated.

Filed Under: fda, key logger, leak, whistleblower

Leaked TPP Proposal Reveals That US Wants To Give Multinational Companies Tremendous Power

from the regulatory-capture dept

We've talked plenty about the shameful position of the USTR on transparency when it comes to negotiating agreements like ACTA and TPP. While USTR Ron Kirk keeps insisting that the feds are being more transparent with TPP than any previous trade agreement, that just shows a complete misunderstanding of what transparency means. He may be hearing from lots of people (and even that's a little questionable), but transparency really means revealing what you're working on -- something Kirk has refused to do. With ACTA there were regular leaks (mainly from folks in the EU who weren't happy with the document). We've heard that there are fewer leaks involving TPP because copies of the documents are being watermarked or otherwise marked, such that any leaked version can be traced back to the originator.

Still, you can't keep things secret forever, and it appears that more TPP proposals have been leaked. It's important to note that TPP covers a lot more than just intellectual property. We've mainly been focused on the IP chapter, but this leak covers other parts of the agreement. That doesn't make it any less troubling. As is being reported, the proposals appears to completely contradict President Obama's campaign promises, while also giving tremendous power to international companies.

It's been clear from the beginning that Kirk is in bed with corporate special interests. The fact that copyright maximalist companies have had regular access to information on the IP chapter of TPP has already been quite troubling, but this leak -- while not focusing on the intellectual property issues that we're most interested in -- seems to confirm that the USTR believes its main purpose is to make life easier for companies it already likes, while making things worse for everyone else.

Filed Under: acta, leak, ron kirk, tpp, transparency, ustr

Politicians Grandstand About Leaks, But The Rest Of Us See The Prosecution Of Whistleblowers

from the priorities,-people dept

Early last week, we wrote about the oddity of how the White House didn't seem to much mind "leaks" that made the President look good in terms of being "tough" on our enemies, such as in the NY Times story confirming that the US was behind the Stuxnet malware, and that the President himself was very familiar with the program. This came at the same time as the White House continuing to vindictively prosecute people responsible for even very minor leaks, such as the Thomas Drake affair, in which some whistleblowing about out-of-control spending at the NSA tuned into a malicious prosecution.

Soon after that story came out, the issue of "good leaks" and "bad leaks" became a huge political football, as it gave the President's opponents an angle to attack him for leaking classified info. The President himself had to shoot back and insist that there were no such leaks happening from the White House -- which is clearly not true. Some of the information could have only come from administration officials.

And, of course, it wasn't just limited to Stuxnet, but other "leaks" of classified info, such as stories around the unmanned drone strike program, which lots of people have reported on, but which is still "classified." Of course, we've now seen grandstanding on both sides of the aisle decrying these leaks -- but not the actions that were exposed by them!

Instead, they all seem to be upset about the leaks themselves, rather than the fact that these questionable activities were secret in the first place. As John Cook recently wrote, these kinds of "leaks" are important because they let us know what our government is doing in our name. That's why these aren't leaks, so much as whistleblowing. And that's an important distinction. That's doubly true as we see to what ridiculous lengths the very same administration goes to in order to attack anyone who reveals information that makes it look bad.

One person's leak is another person's whistleblowing. To treat them all as "leaks" that must be punished (often severely) creates a significant chilling effect on reporting on key issues -- and (worse) gives the government a bubble in which it gets to abuse its power. Rather than condemning all these "leaks," we should be trying to (a) celebrate those who blew the whistle and (b) understand the details behind why such things were secret in the first place.

Filed Under: leak, nsa, obama, stuxnet, thomas drake, whistleblower, white house

Sen. Feinstein More Worried About Reaction To The Leak About Stuxnet, Rather Than Reaction To Stuxnet Itself

from the missing-the-point dept

Last week, we wrote about the NYTimes investigative report that revealed that the US government was behind Stuxnet, and that President Obama was very, very involved in the process. It was widely assumed that the US was involved, but this revealed a bunch of details. We were surprised that the White House appeared not to pressure the NYTs to kill the story (as it has with other leaks of classified info), but wondered if the fact that this made the White House look "tough" and showed a "success story" for the administration, caused them to let it go forward. Since then, however, reports have come out that the FBI is investigating the leak, and Senator Feinstein is similarly calling for hearings on the leak (though, the cynical might argue that this just keeps the "success story" in the news).

But, the most bizarre response to this also comes from Senator Feinstein, who publicly worried that the leak would lead to copycat attacks against the US. The leak. Not the actual attack:

Sen. Dianne Feinstein (D-Calif.), chairwoman of the Intelligence Committee, said the leak about the attack on Iran’s nuclear program could “to some extent” provide justification for copycat attacks against the United States.

“This is like an avalanche. It is very detrimental and, candidly, I found it very concerning,” Feinstein said. “There’s no question that this kind of thing hurts our country.”

This is, to put it mildly, crazy. The argument appears to be that it's okay to do technological attacks... just as long as it's all done in secret and no one ever talks about it. Without the leak, the attack still happened, and that information became public quite some time ago. If anything was going to inspire copycat attacks it would have been that. Though, even then, the claim is questionable. Those who wish to do this country harm haven't been sitting around saying "gee, we can't do anything technological" until they saw Stuxnet come along.

What's really ridiculous about Feinstein's statement is the basic chilling effects that it puts forth. It suggests that the US government can do whatever it wants in attacking other countries, just so long as no one ever talks about it. The talking about factual information isn't the issue here. And Feinstein should know that, rather than suggesting that basic investigative reporting is the problem.

Filed Under: dianne feinstein, intelligence committee, leak, obama, stuxnet, white house

Former Record Label Exec Ethan Kaplan: Duh, Of Course More File Sharing Leads To More Sales

from the your-product-isn't-diamonds-mined-from-a-secret-mythical-land dept

We recently posted an interesting study talking about how greater file sharing of leaked albums had a specific (if small) causal impact that resulted in higher sales. I thought it was an interesting area of research, though one where a lot more work needs to be done. Following that, however, there was an interesting exchange on Twitter, mainly by former Warner Music exec Ethan Kaplan, who didn't seem to think the concept was controversial at all -- and instead that it was obvious. As he stated:

Let me simplify this answer: YES IT LEADS TO MORE SALES. DEMAND = DEMAND W/ $$$$$$ IF PRODUCT GOOD.

He then expanded on that idea (edited slightly to de-Twitterize):

Simplified further: MUSIC BUSINESS (RECORDED): your product isn't diamonds mined from a secret mythical land.

And beyond broadband/napster/whatever, what hurt you the most is PEOPLE FIGURED THAT OUT. Cynicism caught up with you.

You can see the complete exchange on Storify (embedded below) as per Ethan's command. Ethan, as always, is a perceptive observer (and never afraid to share his opinions) of one of the key reasons why the recording (not music) industry has had so much difficulty over the past few years. The industry was focused on something that they pretended was scarce when it was not -- misunderstanding the supply curve. Add to that, the fact that they misunderstood how file sharing represented pent up demand, and they astoundingly got both sides of the supply-demand curve wrong. It's hard to build a successful business when you do that.

Of course, all of this makes me wonder how Ethan lasted in his role at Warner for as long as he did. It must feel good to be free... Though, I stand by my assertion from 2008, that if Warner had put Ethan in charge, that company would be doing a lot better today.

Filed Under: ethan kaplan, file sharing, leak
Companies: warner music

New Study Says Leaked Albums From Popular Artists Lead To More Sales

from the interesting-findings dept

TorrentFreak alerts us to an interesting new research paper from Robert Hammond, an assistant professor at North Carolina State University, looking at the direct impact on sales when albums are leaked early online. The study is pretty thorough in trying to separate other factors and isolate the actual causal impact. It's a bit of an extrapolation to claim that the study says "file sharing boosts music sales," as I don't think the paper actually goes that far. It seems to suggest, however, that for popular artists, having an album leaked appears to lead to a small, but significant, increase in sales. The impact is not seen for newer or less-well-known artists.

To put this result into context, consider the effect of leaking one month earlier on the sales of an album; that is, predict the effect of leaking one month earlier on the number of additional seeders per leecher, then predict the effect of these additional seeders on the number of additional downloads, then finally predict the effect of these additional downloads on the number of additional sales. This exercise predicts that an album that leaked one month earlier will receive 59.6 additional sales.

The report is interesting in that it uses a different, and perhaps much more revealing, data set. Hammond got the data from a popular private tracker that is well known for pre-release works. He claims, quite reasonably, that this means his results are much more useful than other studies that rely on proxies that may not be as accurate.

That said, the report notes that other that other sources of marketing seem to have a larger impact than file sharing. The study is interesting in that it at least challenges a few other reports that have argued that file sharing leads to fewer sales (and even a report that claims that the entirety of the decline in recorded music sales is due to file sharing). While Hammond mentions this particular study, by economist Stan Liebowitz (a vocal supporter of the entertainment industry's position on file sharing), he notes that the two were studying different things -- one macro and one micro. It's also worth noting that Hammond appears to have had Liebowitz review his study before publishing it (though who knows what he said about it).

I think the results here are interesting, but it still does seem like an area of research that needs a lot more focus, as I would bet there are many additional variables at work here, as we've discussed. We've seen that artists that do a good job connecting with their fans, and giving them a reason to buy, seem to see an increase in sales -- and that's independent of how the content is leaked or released (mostly, since you could argue that having the content available is one way of connecting).

Filed Under: file sharing, leak, robert hammond

El-P Embraces Early Leak Of New Album, True Fans Vow Support

from the that's-how-it's-done dept

I had a nice moment when I saw this and hesitated to write about it. As we see more and more and more artists (even Metallica!) embrace early leaked copies of their albums, it's getting less and less newsworthy—which is fantastic. Still, I was pleased to see that rapper/producer El-P (one of my personal all-time favorite artists, who I was lucky enough to interview briefly years ago) had a great reaction to the leak of his much-anticipated new album, expressing his support and offering up some reasons to buy:

elephant in the room: i know a lot of yall already got the album. im ok with that. if you enjoy it and can afford to support me doing more music hit up www.definitivejux.net and pre order. there are dope deals on there. love, el

The pre-order packages include some cool, if somewhat basic, extras like signed posters and limited edition colored vinyls. Judging from the reaction in the comments of the Facebook post, plenty of fans have downloaded it but still want the official copy, and some are even vowing to wait for its release rather than listen to the leak. One states that even if he didn't like the new album he would still buy it "as a thank you for your sonic contribution to my life". Now that's what true fandom looks like—and artists who cultivate it don't have to worry about leaks and piracy.

Filed Under: el-p, leak, reason to buy, true fans