Transparency Pea Soup: The USTR Planned From The Beginning How Not To Be Transparent On ACTA

from the clear-as-mud dept

We've been discussing for a while just how anti-transparent the USTR has been on ACTA negotiations, making totally bogus arguments, such as the idea that negotiators would walk away from the table if they didn't keep the document secret. Of course, it later turned out that it's been the US who has mainly been behind the secrecy. KEI has been pushing for more transparency on ACTA from the beginning, and famously had an FOIA request on ACTA denied due to ridiculously laughable claims of state secrets. However, a more recent request on any USTR discussions about transparency turned up an internal email from Stan McCoy, assistant USTR for intellectual property, entitled "Transparency soup," where he basically acknowledged the new (at the time) administration's request for more transparency, and laid out a "plan" for how to have the USTR pretend to be transparent, without actually being transparent. For the most part, the USTR has followed those plans, showing that it had already dug its heels in to be as opaque as possible, while paying lip service to transparency.

Filed Under: acta, transparency, ustr

Human Rights Groups Complain About Special 301 Process

from the not-just-a-joke dept

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

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

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

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

Filed Under: copyright, special 301, ustr

Bill Introduced To Pressure Countries That Seek To Break The Internet

from the sounds-good-in-theory... dept

Rep. Zoe Lofgren along with a list of other Congressional reps (from both parties) is introducing a new bill called the One Global Internet Act of 2010 (pdf), which is basically targeted at countries -- like Afghanistan and Pakistan -- that are seeking to block large parts of the internet from access, as well as countries like China, which for many years has tried to introduce its own, incompatible, standards for things like WiFi, DVDs, 3G cellular connections and more. The argument in the document is that for there to be a truly functioning internet, it shouldn't fragment across countries due to blockades or differing standards: I definitely appreciate the sentiment, but I do wonder how useful or effective something like this really could be. If countries want to block themselves off from the internet, or want to set up incompatible standards that break them off from cheaper technologies and more powerful connections, then, why not let them do so? It creates a lot more damage for them than it does for the rest of the internet. Yes, it may make things a bit difficult for US companies looking to work in those regions, but I'm always a little nervous about any sort of law that suggests the US can or should waltz into some other country and tell them how they need to act.

And, honestly, a lot of what it sounds like is in this bill seems to mimic what's found in copyright legislation that has turned the US into the world's copyright bully. It asks for the USTR to put together a "list" of problematic countries -- which sounds like the highly flawed and damaging USTR Special 301 process for copyright. It also talks about changing foreign government behavior through trade policy. But, again, that sounds like the disastrous setup of the USTR on copyright, where it has forced through awful "free trade" agreements that actually set up restrictive and protectionist copyright laws, and more recently has brought us ACTA.

While I do agree that these countries mucking with local internet access and standards represents a challenge, I'm not convince that appointing the US to be a standards bully necessarily is such a good idea. It seems like it could have pretty bad unintended consequences.

Filed Under: freedom, internet, ustr, zoe lofgren

USTR Statement On ACTA Makes No Mention Of Releasing Latest Draft

from the one-time-deal? dept

Well, the latest round of ACTA negotiations have concluded and the USTR has released one of its patented content-free statements about what happened. Most notable, of course, is what is absent: there is no indication that negotiators plan on releasing the latest draft. Remember, that it was in the USTR's statement following the last round that it announced plans to release the draft. This was what many folks had feared. Negotiators released the one draft so that they could claim they were being transparent, and then went right back to secrecy. On top of that, the USTR seems to imply that it was "transparent" this time around because it met with some civil societies who have concerns about ACTA. Of course, it leaves out how negotiators dodged most of the questions. That's not transparency. It's just sad.

Filed Under: acta, transparency, ustr

USTR Announces What Countries Have Been Naughty When It Comes To Intellectual Property

from the look-in-the-mirror dept

Every year, the USTR puts out its "Special 301" report, which tries to name and shame countries whose intellectual property laws and enforcement don't live up to some mythical standard. The report is not objective. It's not based on data. It's basically based on the entertainment industry and the pharma industry telling the USTR which countries they don't like... and the USTR taking their words and putting them into a report. It's become something of a running joke to pretty much everyone outside of the USTR or the entertainment and pharmaceutical industries. Last year, at a conference on copyright issues, I even heard people from the US Copyright Office making fun of the USTR's Special 301 report. When even your own country's copyright office is mocking your report on copyright issues, you know you've gone too far. Hell, even ACTA supporters are mocking the Special 301 report as being "petty."

What made the Special 301 report just slightly different this year, was that the USTR was just ever so slightly more open in listening to the public, rather than just industry, concerning who should be on the list. So lots of folks, including myself sent in comments. Apparently, they had little effect.

The USTR has released the list again (pdf) and it's basically the same deal as in previous years. No methodology. No real interest in hearing concerns of consumers or about the rights of individual countries to make their own laws. About the only thing that the public consultation did was allow the USTR to say in the report that it "enhanced its public engagement activities." It notes that there were 571 comments from interested parties, which is a lot more than in the past. But there doesn't seem to be much in the actual report that reflects the concerns raised by myself and many others.

About the only point that the USTR backed down on (and even so, it was marginal), was that it's willing to admit that there are concerns in public health circles that heavy handed enforcement of pharma patents in some countries creates significant harm. However, it still says it wants to "monitor" countries that do compulsory licensing of patents. Of course, as Jamie Love points out, these days, there's a fair bit of compulsory licensing in the US as well, which the USTR fails to mention. Oops.

While the Free Software Foundation notes that the industry's request to shame countries that advocate for open source software usage in government didn't make the list, that's not really a huge surprise. That was clearly an extreme position, which did a nice job highlighting how the industry was using the 301 report to be anticompetitive, not pro-copyright.

Finally, there's the Canadian situation. The punchline of the joke that is the Special 301 report is that Canada gets included every year, despite its strong enforcement of intellectual property laws (despite what the industry claims). Once again, the USTR report appears to ignore the reality in Canada, and simply make stuff up, entirely based on things the entertainment industry falsely claims about Canada. Of course, these days, Canadian politicians have returned the favor by telling the US that it "does not recognize the 301 watch list process" because it "lacks reliable and objective analysis." Of course, as Michael Geist notes, 4.3 billion people live in countries that the USTR finds problematic. Perhaps, he points out, the problem is with the US, rather than those other countries.

Filed Under: copyright, special 301, ustr

USTR Continues To Lie: Claims ACTA Release Proved Internet Rumors About ACTA Were False

from the lies,-damned-lies,-and-sticking-up-for-lobbyists dept

This is pretty funny. After working really hard to keep ACTA negotiations a secret (even ridiculously claiming it was a national security issue), the USTR finally was pressured into release the draft text which showed, in fact, that the online leaks were exactly correct. Yet, the USTR is sticking to its earlier talking point that all the concern about ACTA in the online community was due to "misrepresentation" and "misinformation."

USTR boss Ron Kirk, at a World Intellectual Property Day event earlier this week, claimed that the official release of ACTA text had shown that there was "a lot of the misinformation about ACTA." Except, no, that's not true. While there had been some misinformation about it last summer (mainly due to Kirk's own actions in keeping the document secret), the leaks that started coming out late last year appear to have been 100% accurate. In fact, the significant changes to the officially released copy appear to have been driven by concerns brought forth due to these leaks. He went on to say that it's too early to "judge" things:

"We're still in the middle of the process," Kirk said, adding that "let's not prejudge anything." He also said his office has "gone to great lengths to hear" from all the stakeholders involved in the ACTA debate and will continue to do so.

But that's wrong on a variety of fronts. While the USTR had shown some snippets of the documents, under NDA and only for very brief periods of time, to consumer advocacy groups, that was significantly less access than many industry lobbyists had to the document and the negotiations. As for "pre-judging" the document, the issue isn't "pre-judging" the document, it's about actually listening to the stakeholders. To date, Kirk and the USTR has shown no interest in doing so. That's why they seem to only be publicizing letters from industry lobbyists who support ACTA, but not the concerns of pretty much everyone else about ACTA.

The issue isn't "pre-judging," it's making sure that by the time anyone's allowed to "judge" the document, it isn't too late.

Filed Under: acta, ustr

ACTA Released, Only Very Slightly Less Awful Than Expected

from the debating-a-global-copyright-nanny-state dept

After fighting every step of the way to keep the ACTA secret, the USTR last week disengenuously proclaimed that it was finally time to make the international agreement public -- to "help the process of reaching a final agreement." Of course this proclamation of transparency and cooperation comes only after much of the agreement had been hashed out without substantive public input, after the European Parliament voted 633-to-13 to demand the release of ACTA's text, and after most of the agreement had already leaked to the press. Today the European Union finally released the full agreement (pdf) -- as well as a statement by EU Trade Commissioner Karel De Gucht insisting that the release proves ACTA concerns have been unfounded (shockingly it turns out that's not true).

Most of what's in the agreement isn't a surprise given the leaks, and while the ACTA remains a bevy of awful policies, there are a few minor changes to degrees of said awfulness. While the leaked versions of the ACTA didn't explicity mandate ISP "three strikes" provisions, they did threaten to take away ISP safe harbor protections if ISPs didn't agree to police copyright, with the only real example of acceptable behavior being -- to employ three strikes provisions. This freshly-released version of the agreement gets rid of that language, instead simply insisting that ISPs can only retain safe harbor protections by adopting a "takedown" policy that will "address the unauthorized storage or transmission of materials protected by copyright."

That's of course simply taking our notoriously unreliable DMCA letter warning process and exporting it to Canada and elsewhere. Here in the States several major ISPs are already voluntarily taking this idea one step further -- by threatening users with disconnection for trading copyrighted files via BitTorrent (in some cases these threats, which no ISP is willing to transparently discuss, have been found to be a bluff). Some new language in the agreement also appears to take aim at softening European law, allowing countries to "terminate or prevent an infringement" and pass legislation "governing the removal or disabling of access to information." Meanwhile, Michael Geist notes that three strikes may not be dead yet given countries still need to hash out their differences:

"However, that does not mean that three strikes has disappeared from the draft entirely. The U.S. proposal for ISP liability is one of three options currently being considered. The European option preserves, but does not require, three strikes . . . The EU will argue this is consistent with the law in a few of its member states. If the approach is adopted, it will clearly keep three strikes on the table and could be used in other ACTA member countries to encourage its adoption."

Most of the language that critics have grown familiar with (making the bypassing of copy protection illegal even in cases of fair use, making copies of a large quality of content illegal even if no money is exchanged, mandating that ISPs become copyright nannies) remain at the heart of the ACTA. The agreement's central thrust continues to be to foist clearly dysfunctional, unreliable, and draconian U.S. DMCA-style copyright enforcement policies upon other countries. Other than that? Sure, ACTA concerns are "unfounded" with the release of this latest draft. Of course it can still get better (or worse) in time.

Filed Under: acta, ustr

Now That Everyone's Seen ACTA, USTR Says 'It's Time To Release It'

from the nice-work,-guys dept

So, for years now, the USTR has fought as hard as possible to keep ACTA a secret, while pretending otherwise. It's insisted that ACTA wasn't secret while at the same time refusing to release details of what's in the document, claiming that it was a national security issue. Later, when confronted about it, the USTR claimed that others would leave the negotiating table if the text was made public. However, as more and more info leaked about ACTA, it became quite clear that it was really the US that was behind the level of secrecy. Of course, as time went on, more and more of the document leaked, the whole "secrecy" angle got pretty silly.

So it's almost laughable to see the USTR say on Friday that now is finally the time to release a draft -- as if everyone who didn't already want to see it hadn't seen it.

Overall, therefore, there was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement. For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round.

Yes. That or the massive public rebuke the USTR has been receiving from almost every quarter on this particular agreement. The full document gets "released" on Wednesday, and we expect it to be... well, pretty much like what was leaked last month.

Filed Under: acta, ustr

USTR Releases Openness Plan, While Celebrating That It's In The Pocket Of Industry Lobbyists

from the see?-people-like-us! dept

We were confused a few weeks ago when the USTR started promoting letters from lobbyists in support of ACTA. After all, of course the lobbyists want ACTA. They're the ones who wrote much of it in the first place. In the meantime, thousands have been writing the USTR to express their concerns about ACTA... but the USTR doesn't bother mentioning them at all. It's as if the USTR is flat-out admitting that it's controlled by the lobbyists.

So it should come as no surprise that the USTR is gleefully hyping up two more letters from lobbying groups in favor of ACTA. But why won't it put forth the letters against ACTA or worried about the process? And, of course, as Jamie Love points out, isn't it weird that these lobbyists are proudly supporting an agreement when, technically, they're not even supposed to know what's in the agreement?

What's even stranger is that all of this comes on the same day that the USTR has released its plan on being more open. How about, for a start, you open up ACTA, stop hiding behind lobbyists, and allow for a real open discussion involving the real stakeholders? Or is that too much to ask? Well, included in the openness plan is the following:

During the building of this plan, recommendations centered around two issues: the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and all other trade-related meetings. There was a desire to make all advisory committee, negotiating, and policy development meetings, and texts available to the public in "real time."

And yet, rather than any sort of real time release of information, we get the USTR still hiding the documents behind a bogus claim of "national security" and then showing off the fact that it's in the pocket of lobbyists who aren't even supposed to know what's in the document.

Filed Under: acta, lobbyists, ustr

US Industry Lobbyists Hope India Will Lock Up More Potential Copyright Infringers

from the that'll-solve-the-problem dept

Back in February, there was a fair bit of attention paid to some of the more ridiculous parts of the IIPA's filing for the USTR's Special 301 report, which seeks to figure out which countries US diplomats should threaten most heavily over their failure to kowtow to US copyright interests. The IIPA is, of course, the mega-lobbying group, made up of a variety of other lobbying groups, including the RIAA, MPAA, BSA, ESA and NMPA. A lot of attention was paid, in particular, to the IIPA's claims that countries that promoted open source software (something that would reduce infringement) were as bad, if not worse, than those that did not crack down on unauthorized copying.

However, some parts of the IIPA's are even more troubling. Public Knowledge has been digging through the report and is reasonably troubled by the call by the IIPA to expand pre-trial detentions in India for those accused of copyright infringement. The PK article goes through this issue in great detail, but basically some parts of India have laws that allow the gov't to lock people up as a form of "preventative detention" for people they're afraid might do something (think Minority Report's "pre-crime"). Not surprisingly, there are some concerns about how these rules have been used to violate human rights -- but still, they are mostly used for "drug-smugglers, human traffickers, bootleggers, and the like." However, two parts of India expanded the law to cover copyright violations -- and, in the case of Tamil Nadu, it was expanded all the way down to merely the potential of possessing a bootleg movie or CD.

In its report, the IIPA claims that by expanding the law to cover copyright, Tamil Nadu successfully deterred infringement. But Public Knowledge looked through the details and found that there was only a temporary blip (something that the IIPA fails to mention, of course):

Given this state of affairs, it's hardly surprising that pretrial detention would "continue[] to result in some deterrence," as the IIPA claims. But while initial reports showed that the imminent addition of 'video piracy' to Tamil Nadu's Goondas Act had a huge deterrent effect, by the time the rule had been in effect for a year piracy had largely bounced back and the local film industry was already clamoring for even more laws. Even the formation of a special video anti-piracy police force (something, incidentally, that the IIPA often calls for in its reports) did not stem the tide of piracy in Tamil Nadu. So it's unclear how much deterrence these statutes even produce.

Now, of course, it seems troubling enough that a group representing the RIAA, MPAA, BSA and others would call for locking up people for up to a year just because they might come into possession of an unauthorized product, but it's even more troubling that the IIPA appears to be calling for the US diplomats to punish or threaten India if they do not expand this rule even further. This rule already goes way beyond anything that would be legal in the US, and the point of the Special 301 report is to highlight countries that don't provide "adequate and effective" rules for protecting copyright. Yet, when a country goes way beyond what's reasonable, the IIPA is still complaining? And even when those laws don't appear to help and seem ripe for serious human rights violations? Wow.

Filed Under: iipa, india, lobbyists, ustr