New Zealand Steps In To Block US Gov't From Stealing All Of Kim Dotcom's Stuff

from the that's-not-how-the-law-works-there dept

Back in March, we explained the ridiculous process by which the US government was able to steal millions of dollars from Kim Dotcom. If you want the details, go read that post, but the shorter version is that entirely separate from the various lawsuits involving Dotcom, the US government filed a separate lawsuit against all of Kim Dotcom's stuff (literally). Using the highly questionable process of civil asset forfeiture, the government is able to declare the stuff guilty of a crime, and thus making it ripe for the government to just take and keep. There are, of course, all sorts of questionable things about civil asset forfeiture, but it got even more bizarre in this case. That's because, after Dotcom's lawyers sought to intervene (which is how you block this kind of theft), the government had Dotcom declared a "fugitive" even though they know exactly where he is and he hasn't "run" from anything. Then, as a "fugitive," it was deemed that he did not actually intervene, and thus, the government was granted a "default judgment" (what you usually get when someone doesn't respond at all to a case).

Any judicial system that actually believed in due process would at least wait until the rest of the legal issues played out, including Dotcom's extradition and, if he is extradited, his trial over the criminal charges against him. If he loses all of that, then it seems reasonable to seek to forfeit his assets. But without a trial and conviction, it seems ridiculous to even go through the forfeiture process. And to basically force him to lose by declaring him a "fugitive" is just spitting in the face of due process.

At the end of that last post, however, we noted that the situation wasn't final. Since most of the assets were in New Zealand and Hong Kong, it was possible that he could get those countries to block the US from just taking those assets. And, that's exactly what's happened. A New Zealand court has ruled in Dotcom's favor [pdf], blocking the US from taking his stuff. The key issue: New Zealand takes a very different approach to these issues and (quite reasonably) finds the US process absurd. It starts out by pointing out that the whole "fugitive" designation is ridiculous, and that under New Zealand law, someone in the same situation would not be declared a fugitive:

While I accept that s 57 would permit the court to make a forfeiture order in the absence of a respondent, it does not expressly authorise the court to proceed on an ex parte basis or to decline to receive submissions made on behalf of an absent respondent who wished to be heard

The court also notes that just because Dotcom is fighting extradition in a New Zealand court it does not mean that he is "not amenable to justice" as is required for such a forfeiture of assets.

Further, the court recognizes the due process issue inherent in taking away all of the money from a defendant seeking to defend himself in court:

The application of the fugitive disentitlement doctrine to a person who is exercising a bi-laterally recognised right to defend an eligibility hearing, with the result that he is deprived of the financial means to mount that defence, is to put that person on the horns of a most uncomfortable and (the plaintiffs would say) unconstitutional dilemma.

And thus, after a lengthy discussion delving into many of the details about this, the judge concludes that she will not, in fact, allow the US government to take Dotcom's stuff, because doing so would be a huge burden on someone trying to defend themselves:

It is, I think, self evident from the above discussion that the plaintiffs have a substantial position to preserve and there will be very real consequences if it is not protected, pending final determination of the claim for review. If the provisional view I have formed about the unavailability of post-registration relief is correct, authorising the registration application to proceed now might deprive the plaintiffs of any ability to defend the extradition or to pursue their appeals against the forfeiture order in the United States.

I have little hesitation in concluding that interim relief should therefore be granted. Accordingly there will be a declaration that the Commissioner of Police is to take no further action that is consequent upon the decision by the Deputy Solicitor-General (Criminal) to authorise him to apply to register the foreign forfeiture orders made by Judge O’Grady in the District Court in Virginia on 27 March 2015 until further order of this Court.

This is far from over, as the New Zealand government is likely to appeal as well, but this whole process continues to be a fascinating power play by the US government -- with it repeatedly assuming that everyone will just follow what it wants. And, so far, the New Zealand courts have been ready to push back on the more extreme requests like this one.

Filed Under: asset forfeiture, default judgment, doj, fugitive, kim dotcom, new zealand, us

How Corporate Sovereignty Undermines Democracy By Irrevocably Binding Future Governments

from the how-is-that-even-possible? dept

Techdirt has been at the forefront of pointing out the dangers of including investor-state dispute settlement (ISDS) in so-called trade agreements. Indeed, we even helped come up with a new term -- corporate sovereignty -- to make clear that ISDS is really about placing corporations on the same level as entire nations, and giving them a unique power to sue a country for alleged harms before special tribunals. But there's an additional aspect to this, which is explored in an insightful article by Sam Fowles on The Conversation.

He points out that although we don't know in detail what the US-EU TAFTA/TTIP agreement will contain, we do have the text for the one between Canada and the EU, the Comprehensive Economic and Trade Agreement (pdf), known as CETA. The European Commission has said many times that it aims to build on the corporate sovereignty chapter in CETA when it comes to negotiating TTIP. One feature of ISDS in CETA is the following:

In the event that the present Agreement is terminated, the provisions of [Chapter X Investment] shall continue to be effective for a further period of 20 years from that date in respect of investments made before the date of termination of the present Agreement.

That is, even if a party pulls out of CETA, it will still be bound by the corporate sovereignty provisions for another 20 years, whether it likes it or not. Since we know that the US model investment treaty (pdf) also requires parties to continue allowing ISDS claims for ten years, it seems likely that TAFTA/TTIP, if it includes corporate sovereignty, will also have such a clause, for at least ten years, maybe more. Fowles explains why that is a problem -- he talks about the UK Parliament, but it applies equally to the US:

Parliament represents the will of the people. Therefore it can make or unmake any law it wants. But there’s a caveat: parliament can’t make a law that would bind future parliaments. To do so would be undemocratic. The laws of one generation are often inappropriate for the next. Parliament must embody the will of the people at the time. When two ordinary laws conflict, the courts will always apply the one passed most recently.

But the 10/20-year extension of ISDS interferes with that. It says that whatever the views of government in power, it must still respect the ISDS chapter signed by one of its predecessors. One implication is that for a decade or two, any major policy changes could be subject to billion-dollar cases before corporate sovereignty tribunals -- a strong disincentive to bring them in, whatever the public might want. The implication is clear. As Fowles writes:

If democracy is to remain the fundamental tenet of our constitution then TTIP must not be ratified. At the very least we must derogate from the 20-year clause. Living under a government you don’t like is the risk you take in a democracy, but being forced to live by rules agreed 20 years ago is fundamentally undemocratic.

As Techdirt explained last year, Canada has already signed a trade agreement with China that will take precedence over Canada's constitution for 31 years. Let's hope the US and EU aren't foolish enough to follow suit by allowing corporate sovereignty to reign over them even after TAFTA/TTIP is terminated.

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Filed Under: binding, ceta, corporate sovereignty, future, governments, isds, tafta, tpp, trade agreements, ttip, us, ustr

Certification: How The US Demands Even More Concessions After Trade Agreements Have Been Signed And Ratified

from the enough-is-never-enough dept

The battle raging over the fast track bill is essentially one about control: who gets the final say over so-called trade agreements like TPP and TAFTA/TTIP. If the US President is not given trade promotion authority, it is possible that Congress will demand changes to the negotiated text; with fast track, it will be a simple up or down vote. That's also the situation in other countries participating in the negotiations: once the text is agreed upon, they can essentially accept it or reject it. However, a group of senior politicians in five of the TPP nations point out that after those votes, the US can still demand further concessions from its partners thanks to a process known as certification:

Senior parliamentarians from five countries negotiating the Trans-Pacific Partnership (TPP) agreement have signed an open letter urging their political leaders to protect their nations’ sovereignty from the United States' process of certification.

Here's how that works:

The US withholds the final steps that are necessary to bring a trade and investment treaty into force until the other party has changed its relevant domestic laws and regulations to meet US expectations of its obligations under the agreement. In the past, US 'expectations' have gone beyond what is in the actual text, and even included matters that were rejected in negotiations.

US officials can define another country's obligations; become directly involved in drafting that country's relevant law and regulations; demand to review and approve proposed laws before they are presented to the other country's legislature; and delay certification until the US is satisfied the new laws meet its requirements.

In other words, even though other nations might think that after their agreement and ratification of the text, everything is fixed, the US reserves the right to come back and demand changes to domestic laws and regulations so as to ensure that the implementation is as it wishes. That's no mere theoretical option: it has been used against both Peru and Australia recently. In the latter case, the US was unhappy with the legislation enacting the Australia-US free trade agreement (AUSFTA), and demanded that Australia bring in a supplementary law that actually went beyond the terms of AUSFTA. Even then, the US reserved its right to take legal action if it felt that Australia had still not gone far enough.

The publication of the open letter (pdf) to the political leaders of the TPP nations is a timely reminder that however much sovereignty they might be willing to give up during the negotiations for the sake of supposed gains, the US may want even more concessions -- without, of course, granting other countries the same prerogative.

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Filed Under: certification, promises, regulations, tafta, tpp, trade deals, ttip, us

US Says 'No' To Corporate Sovereignty Reform; Hungary Says 'No' To Corporate Sovereignty

from the clash-of-civilizations dept

Last week we wrote about an attempt by the EU's Trade Commissioner, Cecilia Malmström, to "save" the corporate sovereignty chapter in TAFTA/TTIP as more people wake up to its dangers, and resist its inclusion. Along with tinkering at the edges, her proposal for reform did have one more substantive idea: to create "a permanent multilateral investment court."

The intention was presumably to address the key objections to investment-state dispute settlement (ISDS) tribunals -- that they are secret, unpredictable and have no conflict of interest rules or appeals process -- by importing some of the key strengths of traditional courts, which are open and impartial, follow precedent and allow appeals. Of course, that approach begs the question why new courts are needed at all, when national courts already exist. But it seems that we won't be having a debate on that particular issue, since the US has lost no time pouring cold water on the whole idea, as AFP reports:

A senior US official rejected Monday an EU proposal to create an international investment court that was aimed at resolving one of the disputes holding up their free trade deal.

The comments by US Undersecretary for International Trade at the Commerce Department, Stefan Selig, include the following claim:

"The criticisms that they undermine governments' right to regulate, I think are just misguided," Selig said during a visit to Paris when asked about Malmstroem's proposals.

As I wrote last year, far from being "misguided," the past experience with corporate sovereignty shows that those criticisms are entirely justified. Selig then goes on to say:

The United States believes the ISDS mechanism "increases the security of companies willing to make investments and arguably makes that country, whether it's the United States or any country in Europe, a more attractive investment destination."

But again, that assertion is belied by the facts. According to the European Commission's recently-updated figures, in 2013, the total US investment in the EU was €1.65 trillion; the EU investment in the US was even higher -- €1.69 trillion. The size of these numbers is the best indication that companies are more than happy to send money across the Atlantic, even without ISDS.

The US refusal even to consider a major reform of corporate sovereignty poses big problems for the EU negotiators. It's clear that the strategy was to try to win over critics of ISDS by promising that its flaws -- admitted even by the European Commission -- would be fixed through the creation of a new court. With that option no longer on the table, it looks increasingly like TTIP's ISDS will simply involve some minor tweaks.

However, last week another country was making its position on corporate sovereignty clear, reported here by the Budapest Business Journal:

Hungary is against the inclusion of the investor-state dispute settlement (ISDS) clause in the Transatlantic Trade and Investment Partnership (TTIP) free trade agreement between the United States and the European Union, [Hungary's] Foreign Ministry state secretary István Mikola said yesterday following a convention of foreign trade ministers in Brussels.

Since TAFTA/TTIP is what is known as a "mixed agreement," both the EU and all the member states must ratify it before it comes into force. If Hungary refuses to do that on the grounds that it contains ISDS, it's possible the whole deal would simply collapse (it's not clear what would happen in practice, because this is largely uncharted territory). Moreover, Hungary is not the only country that is likely to vote down TTIP if it includes ISDS:

Mikola said that Hungary's views on the ISDS clause are shared by 6-7 other EU member states, but he did not name those states.

That's further evidence that the central stumbling block for TTIP is corporate sovereignty. Indeed, it seems that ISDS is fast becoming as toxic as ACTA three years ago, when politicians rushed to dissociate themselves from the idea before rejecting it completely.

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Filed Under: corporate sovereignty, hungary, isds, tafta, ttip, us

UN Appoints Special Expert To Report On Online Privacy; Surprisingly, US And UK Don't Object

from the wonders-will-never-cease dept

The world of online privacy was changed forever by Edward Snowden's revelations of massive, global spying by the US, UK and others. And the repercussions of his actions continue to make themselves felt. Two countries particularly affected by the surveillance conducted against them, Germany and Brazil, have led efforts to appoint a new rapporteur (special expert) for privacy at the United Nations Human Rights Council, and with surprising success. Despite fears that the US or UK might try to block the move, or neuter the role, they both accepted the following resolution, which was adopted by consensus, without a vote:

The Council invites the Special Rapporteur to include in the first report considerations on the right to privacy in the digital age; calls upon all States to cooperate fully with and assist the Special Rapporteur in the performance of the mandate, including by providing all necessary information requested by him or her, to respond promptly to his or her urgent appeals and other communications, to consider favourably the mandate holder’s requests to visit their countries and to consider implementing the recommendations made by the mandate holder in his or her reports.

It will be interesting to see what happens when the Rapporteur comes calling on the NSA and GCHQ asking for more details of their surveillance operations. The resolution affirmed a general right to privacy:

according to which no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, and the right to the protection of the law against such interference...; recognizes the global and open nature of the Internet and the rapid advancement in information and communications technology as a driving force in accelerating progress towards development in its various forms; and affirms that the same rights that people have offline must also be protected online, including the right to privacy.

The Rapporteur will have no real powers to demand information or enforce recommendations. But at the very least, the creation of this new role will help to increase international awareness of the importance of privacy in the digital world, and of the scale of the threats ranged against it.

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Filed Under: privacy, rapporteur, surveillance, uk, un, us

EU Releases Its Regulatory Approach For Drones; US Puts Out 'Request For Comments' On Commercial And Private Use

from the don't-get-left-behind dept

As Techdirt has reported, the FAA is being strangely unhelpful when it comes to authorizing commercial drone use. In that article, Mike warned that this might lead to other countries moving ahead in this fast-developing area, and he was right: the EU body for air safety, the European Aviation Safety Agency (EASA), has now presented its regulatory approach for drones. It is based on three categories of operations and their associated regulatory regime: open, specific and certified (pdf):

The Open operation category of drones, should not require an authorisation by an Aviation Authority for the flight but stay within defined boundaries for the operation (e.g. distance from aerodromes, from people, etc). The "specific" operation category will require a risk assessment that will lead to an Operations Authorisation with specific limitations adapted to the operation. The "certified" operations will be required for operations with a higher associated risk or might be requested on a voluntary basis by organisations providing services such as remote piloting or equipment such as "detect and avoid".

As the EASA paper quoted above points out, in addition to safety, privacy and data protection are other important areas that need to be addressed. The new EU framework envisages this being dealt with by legislation at a national, rather than European, level. The paper has some suggestions for how this might be done:

The risk regarding privacy (data protection) could be mitigated through the operators self-registration in a web based application maintained by the local authorities. Another solution would be to install chips/Sim cards in drones. Such a web based application or chip/Sim cards could also contribute mitigating the security risk.

The paper also has some interesting thoughts on imminent challenges:

While today flying a single drone in non-segregated airspace with cooperative aircraft can be done with appropriate coordination and special procedures, operation of several of them possibly with non-cooperative aircraft will be much more complicated and will require additional measures. The concept of operations will need to be further developed to address the issues related to operations of fleet of drones in the non-segregated airspace. These operations of fleet of drones will pose new challenges not yet explored with manned aircraft operations.

Meanwhile, in the US, the National Telecommunications and Information Administration has put out a "Request for Comments on Privacy, Transparency, and Accountability Regarding Commercial and Private Use of Unmanned Aircraft Systems," with a closing date of April 20, 2015. Let's hope it doesn't take too long to move from words to action.

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Filed Under: drones, eu, faa, regulations, us

German Data Protection Commissioners Take Action Against EU Data Transfers To US Under 'Safe Harbor' Program

from the more-confrontational dept

We pointed out last year that one of the knock-on effects of Edward Snowden's revelations about massive NSA (and GCHQ) spying on Europeans was a call to suspend the economically-critical Safe Harbor program. Without Safe Harbor, it would be illegal under European law for companies like Google and Facebook to take EU citizens' personal data outside the EU, which would make it more difficult to run those services in their present form. Nothing much happened after that call by the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) committee -- not least because it does not have any direct power to formulate EU policy -- but the unhappiness with Safe Harbor has evidently not gone away.

Heise Online reports that two of Germany's data protection commissioners -- those for the cities of Berlin and Bremen -- have started proceedings against the transfer of data to the US under the Safe Harbor agreement (original in German.) This seems to represent a hardening of their position. The Heise article quotes another data protection commissioner, this time for the city of Hamburg, as saying that the mood among his colleagues was more confrontational now. Similarly, the commissioner for Berlin commented:

"In my view, Safe Harbor is dead if essential improvements aren't found."

Whether the US authorities will be willing to make of those improvements, or whether they might just hope the European public's dependence on Google and Facebook will prevent drastic action being taken by the EU, remains unclear. Complicating matters still further is a separate argument about whether data flows should be included in the various trade negotiations involving the US and the European Union. The latest move by German data protection commissioners is unlikely to make resolving these issues any easier.

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Filed Under: data, data privacy, data protection, eu, fragmentation, german, localization, safe harbor, us

Latest In Cable Astroturfing: If You Squint, Twist, Spin And Mislead With Apples To Oranges Comparisons, US Broadband Is Great!

from the because-it's-not dept

For the past few months, I'd been pitched a few times from people (often somehow, if in murky ways, connected to the broadband industry) arguing that all those stories about how the US is far behind in broadband is untrue if you just looked at certain states. The basic argument is that since the US is so large, it's not fair to compare it to, say, South Korea. Instead, they claim, if you just look at a few states in the US, those states compare quite well to this country or that country. Of course, to make a total fruit basket out of mixed metaphors, this is pretty blatant cherry picking apples to compare to oranges. We haven't written any of those stories, but apparently someone went and created a misleading infographic to try to make the point on a site called "the Connectivist." However, as Chris Morran brilliantly dissects over at Consumerist, the whole argument is bogus:

The only way to do a true apples to apples comparison would be to look at the data for areas with similar conditions, including population size and area, which the Connectivist doesn’t do.

The site simply glosses over the fact that while broadband in the U.S. is improving, it’s still not a world leader in deploying high-speed Internet access to its citizens.

Even though nearly three-quarters of the U.S. has access to what the FCC currently defines as “broadband,” meaning at least 4Mbps downstream, that’s still not a high enough percentage to get it into the top 10 globally. In fact, that percentage barely puts the U.S. in the 40 of all nations.

Likewise, only 39% of Americans have access to 10 Mbps service, which is what many people now consider the minimum acceptable standard for broadband. That ranks higher, putting the U.S. within the top 15 worldwide, but still pales in comparison to world leaders like Sweden (56%), the Netherlands (52%), and Romania (50%).

Morran notes, sarcastically, that the Connectivist seems to ignore all of this... and then suggests a reason why:

Maybe it has something to do with an organization you won’t see mentioned on the Connectivist until you get to its “About” page, where it just happens to mention that “The Connectivist is an online magazine created in partnership with the National Cable & Telecommunications Association.”

Ah yes, the NCTA, better known as the major trade/lobbying group for the cable industry. The very same NCTA that recently tried to set up a painfully awkward attempt at sounding cool and young to attract younger people to its anti-net neutrality stance -- and when confronted with the fact it was behind that campaign, said, "What led you to the conclusion this is an NCTA effort?" At least this time it's officially buried in the fine print, but really, NCTA, if your argument is so compelling, why is it that you always have to set up fake groups to push it?

Filed Under: astroturfing, broadband, competition, misleading, speeds, us
Companies: connectivist, ncta

Latest Intellectual Property Chapter Of TPP Agreement Leaked: Would Be A Disaster For Public Health

from the transparency-needed dept

For years, we've discussed the ridiculous and unnecessary secrecy concerning trade agreements negotiated by the USTR. The text of the negotiating documents and even the US's general position is kept secret until the very end, at which point concerns from the public and innovators no longer matter. Instead, the USTR relies on legacy industry "advisors" who are mostly interested in protecting what they have from disruption, change and innovation. For all the talk of how these agreements are "free trade" agreements, they tend to be anything but. They are focused on protecting a few industries against competition, disruption and innovation. The former US Trade Rep Ron Kirk was unusually honest a few years ago in admitting that these agreements would never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the "Intellectual Property" chapter of the Trans Pacific Partnership (TPP) agreement, and now it's done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration.

Large brand-name drug firms want to use the TPP to impose rules throughout Asia that will raise prices on medicine purchases for consumers and governments, and be in effect for the next several decades. With billions at stake, Big Pharma wants the TPP to be a road map for rules that will govern Pacific Rim economies for the next several decades.

A U.S. proposal in the text – to provide long automatic monopolies for biotech drugs or biologics, which includes most new treatments for cancer – contradicts the policies included in recent White House budgets and if adopted would undermine key cost savings touted by the administration. The past budgets have included a specific pledge to shorten the same monopoly periods so as to reduce cost burdens on Medicare and Medicaid.

If the TPP is ratified with this U.S.-proposed provision included, Congress would be unable to reduce monopoly periods without risking significant penalties and investor-state arbitration.

Thankfully, other countries appear to be pushing back on this proposal, but the US is always the 800-pound gorilla in these negotiations. Still, as Wikileaks summarizes, the US is pushing strongly for "drug-company friendly" language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma -- showing how it really feels about public health -- has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely, but rather, are looking to undermine it. Wikileaks explains:

Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents. This is a diminished version of the TRIPS agreement that was present in the 2013 text. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines. The new exceptions are set out here and here, having deleted the option for "Other Use Without Authorisation of the Right Holder" in the August 2013 text. The current global norms for justifying exceptions to patents are set out in the TRIPS agreement under either Article 30 or 31. Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking big pharma's monopoly on life-saving drugs.

However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation. In short, the TPP will greatly reduce the ability for creating more affordable drugs to save more lives, and increase the pharmaceutical industry's ability to retain monopolies.

Elsewhere in the document, we see that the US and Japan (who appear to be aligned a lot against everyone else) are pushing for the following:

For greater certainty, a Party may not deny a patent solely on the basis that the product did not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.

Consider this to be the "Eli Lilly clause." As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty ("investor state dispute settlement" or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn't do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective.

A bunch of countries are pushing for the right to cancel a patent if it "is used in a manner determined to be anti-competitive," but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something.

In the copyright section, it appears that US goes beyond existing US law in asking that "making available" be considered one of the exclusive rights protected under copyright law. Some US courts consider "making available" to be considered part of the "distribution" right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that's not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include "making available" as an exclusive right for copyright holders.

There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public's rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced.

The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we've seen with statutory damages in the US and how it enables shady practices like copyright trolling.

There's a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn't care. If you accidentally record a bit of a movie? Go to jail.

There's a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.

Filed Under: copyright, criminal copyright, exceptions, fair use, japan, patents, public health, tpp, us, ustr