US TPP Negotiators Accused Of Bullying; Refusing To Budge On Ridiculous IP And Corporate Sovereignty Demands

from the i'm-sorry-for-my-country's-insane-negotiators dept

This is hardly a surprise, but more reports are coming out revealing that the US's ongoing strategy in negotiating the TPP (Trans Pacific Partnership) agreement is to not take into account the many, many concerns about the US's hardline, maximalist position on both intellectual property issues and efforts to give corporations sovereignty over national laws under the misleadingly named (and purposely boring) "investor state dispute settlements" (ISDS). You would think that with widespread dissection and concerns expressed about the leaked intellectual property chapter, that the USTR might possibly ease up on its crazy maximalist demands. Not so -- but that's to be expected when you have Stan McCoy as the lead negotiator on intellectual property issues. McCoy is a famed extreme maximalist on IP issues who has more or less admitted to having no interest at all in hearing from public interest groups, while lapping up any opportunity to parrot bogus claims from the industry. McCoy was the same guy behind the embarassing disaster known as ACTA, which flopped so miserably. You'd think he'd take a hint, but instead it appears he's decided to dig in his heels and make sure the US continues to live up to its reputation as an obnoxious bully.

Multiple reports have called out the US (and McCoy in particular) for its aggression and "bullying" in the negotiations. Others have accused the US of engaging in a "negotiation by exhaustion," in which US negotiators seem to figure if they just stand their ground forever, everyone will eventually be bullied into agreeing to the US's positions.

‘The US has adopted a strategy of exhaustion in its bullying of negotiators on the crucial intellectual property chapter to force countries to trade away health in the Trans-Pacific Partnership Agreement negotiations in Salt Lake City’, according to Professor Jane Kelsey from the University of Auckland, New Zealand, who is monitoring the negotiations.

‘The US has stepped up its aggression as they move towards their "end point" of the TPPA ministerial meeting in Singapore from 7 to 10 December’, said Professor Kelsey.

[....] ‘This is a loaded game’, Professor Kelsey said. ‘McCoy sets the agenda and timetable. Negotiators are working from morning until late at night and preparing to work all night, if necessary.’

The second link above, from a publication in Australia, notes something similar and complains about the Australian government's seeming willingness to side with the US on these issues:

The United States has been accused of negotiation by exhaustion in last-minute talks in Salt Lake City ahead of the final ministers' meeting that will decide the makeup of the Trans Pacific trade deal between Australia and eleven other nations.

Information leaking from the closed official-level talks suggests the United States is giving no ground on questions of intellectual property and medicines and is insisting each nation sign up to so-called Investor State Dispute Settlement provisions that would allow global corporations to sue sovereign governments.

[....] “What is happening is not a negotiation,” said Patricia Ranald, Convenor of the Australian Fair Trade Network. “The United States is dictating the terms and it seems the Australian Government is not prepared to join other governments which are resisting these demands

While Stan McCoy plays out his own last stand game, pushing for policies that may help a few of his friends in the industry at the expense of the public, hopefully that last point -- about other governments resisting McCoy's attempt to bully them into a really bad deal -- stays true. An analysis of the positions on the IP Chapter, done by Gabriel Michael, highlighted how the US's position is a lot more isolated than it might like. That may explain the bullying behavior. It looks like the USTR is getting desperate, realizing its usual tricks and games aren't fooling most of the other negotiators. As Michael's analysis showed, the US and Japan (two of the strongest supporters of maximalism) appear to be fairly isolated -- issuing a lot more proposals that no one else supports.

Of course, the USTR is somewhat famous for its ability to start horse trading, promising bogus sweetheart deals if people just agree to awful language that will do massive harm to the public, so it's still something to be quite nervous about until any final text is revealed. Of course, just the fact that the USTR has still refused to reveal the text itself should be reason enough to recognize that this deal is a joke designed to screw over the public. Those acting in the interest of the public don't hide their efforts from the public.

Filed Under: bullies, copyright, corporate sovereignty, intellectual property, isds, negotiations, public interest, stan mccoy, tpp, ustr

As White House Makes Final Push On TPP, Congress Slams On The Brakes

from the some-good-news... dept

Things are heating up around the Trans Pacific Partnership (TPP) agreement, the trade agreement among many of the Pacific Rim countries that has tremendous problems. The US has been pushing very, very hard to get the deal signed and delivered by the end of the year. US Treasury Secretary Jack Lew announced that he still believes an agreement can be made by the end of the year.

"I think the important thing to remember is that the reason we are in the TPP discussion is the same as the reasons Singapore is -- same for Japan and the other countries are -- that it is in each of our own interest for there to be high quality agreement that benefits each of us individually and all of us together collectively.

"And that is the reason why we are still optimistic that we can reach a successful conclusion of the TPP discussion this year."

Of course, there are a number of indications that with some of the massive gaps between negotiating positions that still remain that it may be difficult to hammer out an agreement in time. But... it also might not matter much, because Congress may be slamming the brakes on the whole process. We just noted that a very large number of folks in Congress have told the White House that they're very uncomfortable giving the USTR "trade promotion authority" or "fast track authority," which would effectively have Congress giving up its Constitutionally defined role as the sole governmental branch that can "regulate commerce with foreign nations."

In effect, without trade promotion authority, the USTR is negotiating without any real mandate. That is, the agreement itself is somewhat meaningless, because the USTR has no ability to commit the US to anything. Only Congress can do that, and it appears Congress is skeptical about giving up its Constitutional powers to the USTR -- and, given what's been seen in the leaked versions of the TPP (oh yeah, and the very fact that it had to be leaked in the first place) -- it seems Congress has some very good reasons to be wary of the USTR having any more power than it currently does.

So it's good to see that Rep. Steny Hoyer, the number two Democrat in the House, has basically said that there's almost no way Congress is giving the USTR trade promotion authority this year. Bizarrely, as the article notes, the Republicans seem overeager to support trade promotion authority, while it's the Democrats who are effectively blocking it. Yes, you read that right. The Republicans in the House, who have been fighting President Obama on nearly everything, are eager to give up their own constitutional powers in Congress and hand them directly to the Obama White House, while it's the President's own party that is (rightfully) concerned about moving forward with such a plan.

For the life of me, I cannot see why Republicans would support such a thing. It appears that a bunch of highly paid lobbyists are going around pretending that TPP is actually a "free trade" agreement, and telling Republicans they should be in favor of free trade. But it's not a free trade agreement at all (quite the opposite, actually). Maybe someone should explain to the Republicans that giving up their own sole power to regulate foreign commerce and handing it the White House, which has written a proposal designed to massively benefit traditional donors to Democratic candidates, isn't the wisest of political strategies.

Filed Under: congress, fast track authority, jack lew, steny hoyer, tpp, trade promotion authority, ustr

Where Is The 'Free Trade' In The TPP IP Chapter?

from the still-searching... dept

People have pointed out how KORUS -- the "free trade" agreement that the US signed with South Korea a few years ago, which included draconian intellectual property rules, is "the model" for "modern free trade agreements." It was used as the basis for ACTA, and now it's often pointed to as the model for the TPP as well. When KORUS was first being debated, we wondered why a "free trade" agreement would include rules for stricter monopolies, as that seemed like the exact opposite of free trade. Free trade is about knocking down the walls to protectionism, not building more monopoly power. And yet, that's exactly what it did -- creating tremendous problems to the point that South Korea is now looking for ways to get out of the intellectual property requirements of the agreement.

And yet, defenders of the TPP still point to KORUS as the "model" for TPP and talk it up as if it's been a wonderful and successful agreement. However, it seems that others are noticing that there doesn't appear to be any "free trade" in this "free trade agreement." Instead, it's purely mercantilist cronyism, designed to limit economic growth and public welfare, to benefit a few large legacy companies.

Exhibit A was released by WikiLeaks last week: the latest draft of the "intellectual property" chapter of the agreement, one of 24 (out of 29) chapters that do not have to do with trade. This chapter has provisions that will make it easier for pharmaceutical companies to get patents, including in developing countries; have these patents for more years; and extend the ability of these companies to limit access to the scientific data that is necessary for other researchers to develop new medicines. And the United States is even pushing for provisions that would allow surgical procedures to be patented – provisions that may be currently against US law.

All of these measures will help raise the price of medicines and health care, which will strain public health systems and price some people out of the market for important medicines. It is interesting to see how much worse the TPP is than the WTO's Trips (Trade-Related Aspects of International Property Rights). This, too, was a massive rip-off of consumers and patients throughout the world, but after years of struggle by health advocates and public interest groups, some of its worst features were attenuated, and further consolidation of pharmaceutical companies' interests were blocked.

So why are we increasing protectionism and putting in greater monopoly power in a so-called "free trade" agreement? Because these legacy companies and the USTR long ago learned that if you say something on the label, but then put the exact opposite in the package, the press, the public and plenty of politicians will pretend that what you say on the label is actually in the package.

But it's time to make this clear: almost nothing in the TPP is about actual free trade. Real free trade can be quite beneficial to all trading partners, increasing efficiency and benefiting everyone. But this is not just fake free trade, it's anti-free trade, promoting protectionist, mercantilist monopolies for big political donor legacy companies, because the USTR either thinks that lining the pockets of big political donors is a good way to keep its friends in power or they know that it'll be easier to secure cushy private sector jobs after securing these "favors."

Either way, the next time someone (especially in the press or the government) claims that the TPP is about "free trade" ask them how. And ask them how increasing monopolies and putting up protectionist trade barriers is free trade.

Filed Under: copyright, free trade, mercantilism, monopolies, patents, protectionism, tpp

TPP IP Chapter Available For Discussion And Annotation At RapGenius

from the get-busy dept

If we had a truly transparent USTR (hahah, I know, stop laughing), it might have done something like what CCIA's Matt Schruers just did: posting the latest known version of the IP Chapter of the Trans Pacific Partnership (TPP) agreement to the annotation site RapGenius to allow for annotation and discussion over the document. Schruers notes, correctly, that the claims that TPP is "SOPA 2.0" are greatly exaggerated, but that there are still plenty of significant reasons to be quite concerned about the TPP -- and that's why there should be a real discussion about the actual text -- something the USTR has steadfastly avoided for years.

U.S. experts may have concerns about the extent to which TPP accurately reflects U.S. law, and — assuming it does — whether locking in some provisions (and not others) via agreement is sound policy. Similarly, experts from other TPP countries may question whether adopting various provisions of U.S. law is desirable in their national legal system. Several already have. This is a question more complex than “is this SOPA 2?”, however, and it requires careful study of various provisions.

To that end, we want to enable experts and interested parties to edit/mark up the leaked TPP text, which is where Rap Genius comes in. Rap Genius is very effective for this purpose: it enables user-friendly, HTML-enabled crowd-sourced annotation to anyone online. Users may add their own annotations, comment on mine, or add suggestions to improve the text.

Of course, it should also be noted that some ridiculously believe that RapGenius itself is a "pirate" site. And, some others might point out that RapGenius itself is a bit of a closed system, whereas it might be nicer to use an open annotation system like Hypothes.is (though that organization has indicated it may do something similar). But, given the fact that RapGenius works now and is fairly easy to use, it seems like a good choice for today's situation. And, indeed, as you go through the annotations already up on the site, there's plenty of insightful content, looking at the various proposals and provisions in this leaked copy of the document, allowing for a real discussion about what's being negotiated, rather than blanket platitudes that the USTR and its defenders have been pushing out about the agreement.

The really sad thing, of course, is that the USTR would never think to do something like this itself. Indeed, it would argue heavily against such a move, highlighting the simple fact that the USTR has, and continues to be, totally against transparency in what it's doing with the TPP and other trade agreements.

Filed Under: annotation, discussion, tpp, transparency, ustr
Companies: rapgenius

Copyright Maximalist Talking Points On Leaked TPP Draft

from the just-keep-repeating... dept

It would appear that a set of talking points that copyright maximalists have been sending around to each other concerning how to respond to the leak of the TPP draft have, themselves, been leaked (to me, at least). As we predicted, the focus is on "this won't change US law," but let's go through all of them to show why the talking points are misleading or ridiculous.

The Draft Is Already Outdated. The draft is dated August 30, 2013. Since that date, there have been intensive TPP negotiations, including specifically about the IP chapter, as countries have redoubled efforts to conclude the negotiations by the end of the year. The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations.

This is true. But meaningless. After all, we've seen nothing on this chapter since early 2011 (other than the USTR briefly mentioning plans to push for a "three step test"). So, while changes have been made, what we do see are the negotiating positions of many of the participants -- and especially the US's extreme positions. There's a lot that can reasonably be said about those positions beyond that "it does not reflect the current state of negotiations." If it later comes out that the US did a complete 180 in September and October, walked away from pushing insane maximalist propaganda, then we'll be happy to report on that. But it seems unlikely.

Almost Everything Is in Brackets. No one can say what the TPP IP chapter would do because almost nothing in the draft text is agreed – it is almost all in brackets, meaning not agreed. Given how inter-related the chapter is (e.g., obligations can be limited by exceptions in a separate article; specific provisions in one article may be affected by general provisions in another), it is effectively impossible to make any accurate claims about what TPP would require. So, any source making a claim about what the TPP IP chapter would do is making it up. At best, these claims are hypotheses about which of various brackets would stay and which of various brackets would go. At worst, they are calculated misinformation.

Uh, no. Yes, everything is in brackets -- meaning not yet agreed to -- but to argue this means that no one can reasonably say what the IP chapter would do if those brackets were made official is simply ridiculous. People can read and can understand what those brackets say. And they can see that the US's position is unquestionably towards pushing maximalism.

What It Would Not Require: Changes to U.S. IP Law. While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law. Unlike the claims likely to be made by the anti-TPP voices, this one is objectively provable – please see the implementing legislation for all of the modern FTAs: P.L. Nos. 108-77, 108-78, 108-286, 108-302, 109-53, 109-283, 109-169, 110-138, 112-41, 112-42, 112-43. In recent years, it has been commonly known that USTR would not accept changes to U.S. IP law through an FTA.

Kind of funny to see this point immediately after the one that says that "any source making a claim about what the TPP IP chapter would do is making it up." Apparently that only applies to TPP changes that the copyright maximalists don't want you talking about. Either way, this was our main prediction and it's exactly what the USTR has been saying (in fact, his statements, almost to a word, seem to repeat these talking points... which I'm sure is just a coincidence, right?). It's not true. The things that the US is pushing for within the TPP quite clearly do not match up with existing law, though they're sneakily written in a way to pretend they do. That is, they use some of the same language and ideas, but leave out important limitations and exceptions, which make the current law work.

But, as we stated, the much more important thing is the fact that the TPP locks in bad law just at a time when Congress is looking to update the law. Even if it doesn't lead to a change in US law, blocking important changes to US law is just as bad, if not worse. Especially when it's done by an undemocratic, secret process driven by industry insiders rather than the public.

A Really Simple “BS Meter”: Does that Happen Under U.S. Law? Given that in FTAs this century, USTR has not signed off on an IP chapter that required changes to U.S. IP law, and those FTA IP chapters have in fact been consistent with existing U.S. IP law, there is a very simple “BS Meter” one can use to evaluate claims about TPP: “Does this happen under U.S. law now?” If the answer is “No,” then the claim is “BS.” If recent rhetoric is any indication of what is in store for TPP, get your shovels ready.

Again, the real issue isn't about how it requires changes to US law, but how it prevents necessary (and requested by the head of the Copyright Office and the President of the US) changes to US copyright law. Besides, as always, using free trade agreements to prime the ratchet has always been a part of the long game. You set it up so that you don't need to immediately change your laws, but it does force nearly everyone else to put in place worse laws -- and then the maximalists go running around talking about how we need to "harmonize" our laws with the rest of the world.

But, again, there is proposed text in the agreement that, would, in fact require changes to US law. As a single example, Mexico has proposed extending the length of copyright yet again, this time to life plus 100 years. While that's just one proposal from one country, there are many other tidbits like that as well.

The Only Real “News” – Many Bogus Claims Are Now Verifiably False. Despite the fear-mongering over “secret” TPP negotiations, the U.S. position on intellectual property in TPP has never really been a secret – the IP chapters of the previous FTAs this century have been remarkably similar. Now that a draft of the text has been released it confirms that the U.S. is seeking IP provisions remarkably similar to those in the KORUS FTA, which received widespread support including from the tech community. The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.

This one is funny. And totally bogus. The leak of the TPP text absolutely confirmed the fears of the secret negotiations. What we've seen is that the US is pushing maximalist positions strongly, leaving out the important flexibilities and counterbalances found in laws elsewhere, effectively trying to ratchet up bad intellectual property laws around the globe, while making it effectively impossible to fix the problems with our broken system. Furthermore, the lack of public involvement and public comment has made it so what the US is pushing is filled with little tricks and Easter eggs designed to benefit a few legacy players at the expense of the public and innovators.

While they mock claims like "the TPP endangers internet freedom," -- that's fairly directly provable from the leaked text. It would lock countries in to passing bad copyright laws, which would absolutely endanger internet freedom by decimating secondary liability laws, encouraging criminal prosecutions for very limited infringement, and making things like temporary copies illegal (something that is not currently the law in the US).

And that's just on the copyright side, not even touching on the patent stuff, or the corporate sovereignty "investor state dispute resolution" mechanisms that would allow companies to sue countries who don't give them the copyrights or patents they want.

Either way these talking points all clearly try to steer away from the real issue with this whole thing: a backroom deal where only corporate lobbyists had access -- which even the former USTR flat out admitted couldn't be passed if the public knew what was in it -- is clearly not an agreement designed to benefit the public. To the contrary, this agreement is entirely designed to favor a small group of special interests: companies who have long past their innovative stage, and are now looking for anti-innovative, protectionist measures. It's an economic and innovation suicide pact, designed to help big campaign contributors.

Filed Under: copyright, talking points, tpp

Bloomberg Points Out That White House's Near Total Lack Of Transparency May Doom TPP

from the indeed-it-will dept

While the NY Times apparently has no problem endorsing the TPP agreement despite not having read it (because it's still totally secret), it appears that other news organizations are feeling differently. Bloomberg's editorial folks have written a pretty strong editorial slamming the Obama administration for the unnecessary and counterproductive secrecy around the Trans Pacific Partnership (TPP) agreement. And this isn't from people who are against the overall agreement. To the contrary, they argue that a good free trade agreement between pacific rim countries would be very helpful for economic and job growth. But the near total lack of transparency by the US may doom the entire project.

The Bloomberg editorial notes that, contrary to USTR Michael Froman's laughable claims of transparency, last week's leak of the IP chapter showed how little transparency there had been, since the US was asking for lots of very controversial things, without any willingness to discuss this with the public. As they note, just because items are controversial, it doesn't mean that the federal government should hide them from both Congress and the public -- in fact, quite the opposite.

The administration may cite the controversies such provisions would provoke as a reason for keeping them secret. Yet just because a deal creates tension among competing interests isn’t a license to keep them uninformed. And the U.S. has invited more than 500 corporate advisers to help it negotiate a deal.

Corporations and trade groups, however, don’t represent the broader interests of consumers, workers, environmentalists and … oh, yes, taxpayers. Theoretically at least, representing them is Congress’s rightful role. Keeping it in the dark feeds the perception that the TPP is a special-interest free-for-all.

Basically, the argument here is similar to what I said last week: there wouldn't be this kind of controversy if the USTR had sucked it up and actually been transparent. That means discussing publicly what they're negotiating in our name, releasing draft texts of what they're proposing, and then being open for discussion about it all. The USTR points to that last one -- the fact that they'll "talk to anyone" as evidence of transparency. But without the first two things, that last one isn't transparency at all.

While Bloomberg has its own credibility problems these days, I'm somewhat surprised that it has come out so strongly against the way the administration and the USTR in particular, has handled the TPP negotiations. Many large media organizations, and especially a corporate appeasing one like Bloomberg, were mostly expected to do what the NYT did -- repeat the topline claims about what the TPP is supposed to accomplish, and assume that the details don't matter.

The details do matter quite a lot, and the USTR still doesn't think we should be able to see them.

Filed Under: congress, michael froman, secrecy, tpp, transparency, ustr, white house

USTR Lies: Says TPP Is No Different Than US Law

from the except-it-does dept

Soon after the TPP IP chapter was leaked via Wikileaks, we predicted that the USTR would claim that it doesn't require legal changes in the US and was just about harmonizing norms. It took all of a day for that prediction to come true. In US Trade Rep Michael Froman's interview with Variety, he said exactly that:

“what we have in there are things that are already in U.S. law about making sure, whether it is copyright or other protections, are fully enforced around the world.”

That is a lie. It's fundamentally untrue. For example, in just the copyright section alone, Margot Kaminski from the Information Society Project at Yale has outlined eight things that differ from US law in the text proposed or supported by the US, some of them rather substantial, including the standards for criminal liability as well as the standards allowed for reverse engineering exemptions for DRM. Jamie Love, over at KEI, pointed out early on that many of the US proposals "are more restrictive than U.S. laws." Also, as we expected, the language on the "three step test," which the USTR pretended was about supporting fair use, actually would massively limit fair use.

Of course, as we pointed out with ACTA and again with TPP, even if it was just about taking things that are in US law and making sure they're "fully enforced around the world" (which is not actually what TPP is about), it would ridiculously lock in a bunch of bad things that are in US law, which pretty much everyone not under the full-time sway of Hollywood already knows has been really bad for the US economy and creativity. The very fact that this agreement would effectively block many of the suggestions made by the head of the US Copyright Office to Congress in terms of copyright reform should show why the USTR has no business doing anything around copyright.

Who in their right mind would try to export US law and lock us into it at the very same time that the experts in the field of law they're talking about have admitted that it's outdated and a mess and in need of a major rewrite? Apparently, the USTR is so clueless that it thinks existing copyright law is settled law and that it's so great we should lock it in and force everyone else to do the same, at the very same time Congress, the head of the Copyright Office, and a lot of other people have admitted it's time for a change.

So why is the USTR blindly pushing ahead with it?

Filed Under: copyright, michael froman, tpp, us law

USTR Insists Secret, MPAA-Backed TPP Is 'Most Transparent Trade Negotiation In History'... From Hollywood Studio

from the does-anyone-believe-this-crap? dept

Honestly, it's somewhat difficult to believe that someone who works in the USTR didn't recognize that it was a bad idea to have their new boss, Michael Froman, who was once called one of the most "egregious examples" of the "revolving door" between companies and government, head out to visit two of the largest Hollywood studios just days after the IP chapter of the secretive TPP agreement was leaked, showing that it was basically Hollywood's wishlist of copyright crap. It's even more difficult to believe, given all that and given that Froman decided to go hang out with some friendly folks in Hollywood anyway, that someone at the USTR didn't think maybe, just maybe, Froman should avoid giving an interview in which he'd be asked about the leaked chapter.

But, it happened. Of course, the interview was with Variety, so maybe they figured that only Hollywood people would read it, and that the rest of the world would never catch on to the fact that Froman is either totally clueless or a blatant liar about the TPP. However, he did give an interview, while "touring Paramount's backlot" in which he said a bunch of nutty things. Here's my favorite:

He also called the talks over the trade pact “the most transparent trade negotiation in history,” noting that they have held more than 1,000 briefings on Capitol Hill, have enlisted 600 advisers for input from various groups and have invited stakeholders to address negotiators from all 12 countries, among other efforts.

Let's just say, this is pure bullshit. Extreme bullshit. Honestly, even Variety (which, as you might imagine, tends to toe the Hollywood line) seems to suggest that this claim isn't actually true. And, of course, considering that the USTR is infamously secretive, being "the most transparent in history" doesn't mean you were actually transparent at all. And, in this case, the fact that he's claiming it's "the most transparent in history" days after a chapter that no one in the public has seen during nearly four years of negotiations had to be leaked should highlight the level of bullshit that Froman is spewing.

He seems to have pulled this "most transparent" bullshit from his predecessor, Ron Kirk, who used to claim the same thing. Both are fundamentally trying to mislead. We've said it before, and we'll say it again, listening to lots of people, while not revealing what you're doing, is not transparency. It's listening. Listening may be better than not listening, but it's completely different than "transparency." Let me make this even clearer:

• Listening: People ---- information -----> USTR
• Transparency: USTR --- information ----> The Public

What Froman described above is about listening. They get "advice" from various stakeholders. That's not transparency. That's listening. So long as no one gets to see what crap they're negotiating "on our behalf," there's no transparency. At all. The only time this negotiation had any transparency was when Wikileaks finally released the IP chapter which the USTR should have and could have done years ago.

The other bit of bullshit in the interview was his misleading response to the claim by some that TPP is like SOPA. Now, I should be clear that we've avoided making that comparison, because there is a different set of issues here. And Froman used those differences to try to discredit all criticism of TPP:

“For example, as I understand it, I wasn’t around for it, (the Stop Online Piracy Act) was about blocking rogue Internet sites from accessing the Internet from the United States. There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that,” he said.

But "blocking rogue websites" isn't what's making people make the comparison between TPP and SOPA. It's two things: (1) a backroom deal negotiated in secret with no input from the public which (2) includes basically a wishlist from Hollywood. The fact that the two wishlists are not identical is not really the point, but it's the point Froman chose to focus on, because he's trying to mislead the public.

Froman continues to demonstrate that he has no business in the role he's in:

“Our goal through these trade negotiations is to make sure we are raising the standard of protection around the world, for artists and the people who support them,” he said.

Except that's not supposed to be the goal at all, and the fact that he thinks it is makes him clearly unqualified for his job. Remember that the TPP is supposed to be about free trade, yet here he is admitting that his actual agenda is increasing protectionism. Second, as anyone who knows anything about intellectual property knows, "raising the standard of protection" has been shown repeatedly to be rather harmful to creators and the public. And, again, the entire purpose of copyright law is supposed to be about promoting progress for the public. It would appear that Froman doesn't know this. And yet he's in charge of negotiating this thing? Really?

This is the reason why transparency matters. Because when you take someone who doesn't understand intellectual property at all, such as Froman, and tell him to negotiate a trade agreement in which the only people he shares the negotiating text with are maximalists, all he hears is how they have to "raise" standards, even as most of the world has realized that the "standards" are already way too high and tremendously damaging to the economy and innovation.

Either way, this whole situation is incredible. You have the USTR, just days after the secret treaty that was written with the help of Hollywood's lobbyists is leaked out, declaring that it's the most transparent in history despite the fact that, if he had his way, none of the public would have seen it, and saying so while touring Hollywood studios. The USTR is either extremely confident that no one cares about trade agreements, or a large segment of the staff there is profoundly clueless. Or maybe it's both.

SOPA was taken down because it was a backroom deal and a Hollywood wishlist, without respect for the public. ACTA went down for the same reason. If Froman doesn't want the same thing to happen to TPP, he might want to learn a thing or two about intellectual property and what transparency means. Because as of right now, he appears to be setting himself up to be roadkill for another internet uprising.

Filed Under: acta, michael froman, sopa, tpp, transparency, ustr
Companies: disney, mpaa, paramount

Law Professors Ask President Obama To Open Up TPP Process

from the stop-the-secrecy dept

A group of over 80 law professors, including many prominent and well-known ones, have now called on President Obama to open up the secretive TPP process. They point out that, especially after the recent leak of the TPP's IP chapter, it's shown that the closed, secretive, non-transparent process leads to bad results. Instead, they argue for an open process, like the recent Marrakesh Treaty concerning copyright issues related to the blind. In that negotiation, proposals were made publicly and shared, so that there was widespread public comment and discussion. There is simply no good reason for the US government to continue negotiating this massive, and tremendously important treaty in secret. The lawyers are clear that they're not against the overall TPP agreement -- in fact, many support it. But they cannot accept the backroom process by which it has been negotiated.

We, the undersigned intellectual property law academics and scholars, write to you to ask you to support immediately changing the secretive TPP negotiation process in law and in practice, and follow instead the example set by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, as explained below.

Intellectual property law is incredibly far reaching in its impact – implicating everything from the price of medicines and textbooks to the ability to exercise free expression and create new business models on the Internet. The TPP’s intellectual property chapter would restrict Congress’s ability to legislate on these key issues, and would do so without public input. Indeed, reported proposals in the TPP would foreclose many policy proposals currently under consideration, including proposals to reform copyright law proposed by the Library of Congress, proposals to reform “data exclusivity” periods for biologic medicines included in the President’s budget, and proposals to amend exceptions for the circumvention of technological protection measures to promote interoperability of cell phones proposed by the Administration itself.

They also point out (nicely), that the administration should know better by now. Not only was the Marrakesh Treaty a success, but ACTA failed because of the USTR's insistence on doing everything in backrooms, and avoiding any and all transparency. So far, it looks like they haven't learned their lesson yet, but pushing the load of crap that is the current IP chapter on TPP seems likely to only give the USTR yet another refresher course in what happens when they decide to make deals like this in backrooms to favor Hollywood and Big Pharma, rather than having an open review in public.

Filed Under: barack obama, law professors, marrakesh treaty, open, scholars, tpp, ustr

Congress May Not Be So Eager To Simply Hand Over Its Own Authority To The Obama Administration To Approve TPP

from the a-good-sign dept

We have all sorts of concerns about the TPP Agreement (Trans Pacific Parntership), but as we've discussed (both recently and in the past), a huge concern is over "trade promotion authority" or "fast track authority," in which Congress completely abdicates its Constitutional role "to regulate commerce with foreign nations." Basically, this power allows the USTR, which is a part of the executive branch, to get Congress to more or less give the USTR the "power" to finalize the trade agreement. Without it, Congress can -- as it should -- debate the different parts of the TPP agreement, and push back on the (many) problematic ones. Yet, if Congress gives up that power, without even seeing the full agreement (!?!?), then all Congress can do is a simple yes or no vote -- and there will be so many goodies in there that it will be difficult for them to reject the entire agreement.

The USTR and President Obama have been talking about the importance of getting this fast track authority from Congress for years -- but nothing has really come of it, nor has there been a direct public request. That suggests the administration knows it doesn't have the votes. In the past couple of months, the lobbying effort for getting fast track authority has ramped up a lot. While I still fear that Congress will cave on this, in the past few days, a group of 22 House Republicans and a (somewhat shocking) group of 151 House Democrats have sent separate letters to the White House, saying that they're opposed to granting fast track authority. Basically, it appears that Congress might actually be standing up for itself (shocking) on this issue, rather than just caving. That's nearly, though not quite, half of the House. It's not enough yet, but it does show that this isn't going to be easy (which again explains why there's been no real direct request yet).

The Republican letter focuses on the fact that Congress is supposed to (as per the Constitution) manage the nation's trade policy -- not the executive branch. The Democrats' letter calls into question the lack of consultation with Congress during this process (directly contradicting the USTR's own bogus claims of "working with Congress." The letter doesn't hold back on criticizing the White House, despite being from the same party:

For some time, members of Congress have urged your administration to engage in broader and deeper consultations with members of the full range of committees of Congress whose jurisdiction touches on the numerous issues being negotiated. Many have raised concerns relating to reports about the agreement’s proposed content. While your Administration’s goal was to sign a TPP FTA at the October 2013 Asia-Pacific Economic Cooperation summit, we believe that to date the process has failed to provide adequate consultation with Congress.

Such opportunity for input from Congress is critical as the TPP FTA will include binding obligations that touch upon a wide swath of policy matters under the authority of Congress.

It later notes that fast track authority "is simply not appropriate for 21st Century agreements."

A NY Times story about the letters notes that there's a lot of anger that the USTR has blocked Congressional staffers from even being able to take part in the negotiations or the discussions -- something we've discussed over the past couple years.

The amazing thing here is that this mess that the USTR and President Obama are in right now over TPP was easily avoidable. Rather than negotiating in secret, and only sharing drafts with a select group of deep industry insiders, they easily could have and should have opened the discussion up publicly. The USTR should have released its own negotiating drafts from the very beginning, so that the public and Congress could weigh in while the process was ongoing. That way, there would be no surprises and no concerns. Instead, they kept the public and Congress out of it entirely -- putting extra special precautions against the public or Congress from finding out what was going on, so that we know the final product will have massive problems. And now they want Congress to just say "Sure, we trust you got it right"? Really? The USTR screwed this one up badly, and it's good to see Congress pushing back on this blatant attempt to usurp Congress' own powers.

Filed Under: congress, copyright, fast track authority, international trade, patents, tpp, trade promotion authority