Chris Dodd's Email Reveals What MPAA Really Thinks Of Fair Use: 'Extremely Controversial'

from the oh-really-now? dept

Two years ago, we were among those who noted how odd it was to see the MPAA in court arguing in favor of fair use, since the MPAA tends to argue against fair use quite frequently. The legal geniuses at the MPAA felt hurt by our post and some of the other news coverage on the issue, and put out a blog post claiming that the MPAA and its members actually love fair use. According to that post, the MPAA's members "rely on the fair use doctrine every day" and the idea that it "opposes" fair use is "simply false, a notion that doesn't survive even a casual encounter with the facts."

Now, as you may have heard, Wikileaks has put the leaked Sony emails online for everyone to search through for themselves. I imagine that there will be a variety of new stories coming out of this trove of information, now that it's widely available, rather than limited to the small group who got the initial email dumps. In digging through the emails, one interesting one popped up. It's Chris Dodd revealing the MPAA's true view on "fair use" in an email to Michael Froman, the US Trade Rep in charge of negotiating agreements like the Trans Pacific Partnership (TPP) agreement and the Transatlantic Trade & Investment Partnership (TTIP).

You see, about a year ago, Froman gave a speech where he made a very brief mention of the importance of fair use, and how, for the first time, the USTR would be including fair use in agreements. Here's what Froman said:

And, for the first time in any trade agreement, we are asking our trading partners to secure robust balance in their copyright systems – an unprecedented move that draws directly on U.S. copyright exceptions and limitations, including fair use for important purposes such as scholarship, criticism, news commentary, teaching, and research.

Nothing major. Nothing controversial. In fact, as we've pointed out, the actual text in the various leaks of the TPP show that while it is true that the USTR has, for the first time, mentioned concepts related to fair use, it has only done so in a manner that would limit how fair use could be implemented.

And that brings us to Dodd's email to Froman, in which he reveals that, contrary to the MPAA's "we love fair use" claim in its public blog post, the MPAA is actually quite fearful of fair use and the idea that it might spread outside of the US to other countries:

Dear Ambassador Froman:

I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement.

As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry.

It may be that people are reacting to the subsequent press releases by private groups following your remarks. I am certain these concerns have been elevated by indications from the US government that the ISP liability provisions in the TPP are going to be weakened. Nonetheless, this issue is of enough significance that I felt I must reach out to you directly prior to your departure for Singapore to register our deep concerns.

I am hopeful that I can report back to my members that that US trade policy has not changed, that USTR is committed to securing strong copyright provisions in the TPP. But, there is no question Wednesday’s speech is reverberating in the content community, and I would be remiss if I failed to raise these concerns to you personally. I would be very grateful if you would respond to these concerns at your earliest convenience. I realize you will be traveling, but this is a sense of urgency surrounding our concerns.

Regards,

Christopher J. Dodd
Motion Picture Association of America

So, the MPAA loves fair use... but the very idea that the USTR might include fair use in a trade agreement (as it had announced years earlier, and which it is doing in very limited -- and limiting -- ways) is "controversial and divisive"? All the way to the point that the MPAA is concerned about whether it can still support the effort? That does not sound like an organization that really does support fair use at all. In fact, it sounds like an organization that actively does "oppose" fair use, contrary to the claims in its blog post. Funny how the MPAA's public statements appear to completely disagree with what it says directly to politicians, huh?

Filed Under: balance, ben sheffner, chris dodd, copyright, fair use, michael froman, tpp, trade agreements
Companies: mpaa

President Obama Complains To China About Demanding Backdoors To Encryption... As His Administration Demands The Same Thing

from the irony dept

Back in January, we pointed out that just after US and EU law enforcement officials started freaking out about mobile encryption and demanding backdoors, that China was also saying that it wanted to require backdoors for itself in encrypted products. Now, President Obama claims he's upset about this, saying that he's spoken directly with China's President Xi Jinping about it:

In an interview with Reuters, Obama said he was concerned about Beijing's plans for a far-reaching counterterrorism law that would require technology firms to hand over encryption keys, the passcodes that help protect data, and install security "backdoors" in their systems to give Chinese authorities surveillance access.

"This is something that I’ve raised directly with President Xi," Obama said. "We have made it very clear to them that this is something they are going to have to change if they are to do business with the United States."

This comes right after the US Trade Rep Michael Froman issued a statement criticizing China for doing the same damn thing that the US DOJ is arguing the US should be doing:

U.S. Trade Representative Michael Froman issued a statement on Thursday criticizing the banking rules, saying they "are not about security – they are about protectionism and favoring Chinese companies".

"The Administration is aggressively working to have China walk back from these troubling regulations," Froman said.

Those claims would sound a hell of a lot stronger if they weren't coming immediately after DOJ officials from Attorney General Eric Holder to FBI Director James Comey had more or less argued for the exact same thing.

Just last week, Yahoo's chief security officer Alex Stamos raised this exact issue with NSA director Admiral Mike Rogers, asking if Rogers thinks it's appropriate for tech companies to build backdoors for other countries if they build them for the US. Rogers ignored the question, just saying "I think we can work our way through this," which is not an answer. And now we're "working our way through this" by having to deal with other countries, such as China, leaping at this opportunity.

And the week before, President Obama himself claimed that he was all for strong encryption, but argued that there were tradeoffs worth discussing, and that some in his administration believed that demanding backdoors made sense to try to stop terrorist attacks. But it's tough to see how he can claim that it's okay to entertain those ideas on the one hand, while using the other hand to try to slap China for doing the exact same thing.

As security researcher Matthew Green rightly points out, "someday, US officials will look back and realize how much global damage they've enabled with their silly requests for key escrow." But that day is apparently not today. The administration keeps bleating on and on about how China is a massive cybersecurity "threat" out there, and then hands the country this massive gift by having a kneejerk reaction to better encryption that protects American citizens.

Filed Under: backdoors, china, encryption, eric holder, jim comey, michael froman, president obama, xi jinping
Companies: apple, google

NY Times Changes Its Tune On TPP; Highlights Cronyism, Lack Of Transparency As Problems

from the getting-it-right-second-time-around dept

Last fall, many folks who follow these issues were somewhat dismayed by a weird NY Times editorial that appeared to endorse the Trans Pacific Partnership (TPP) agreement, while basically ignoring the many complaints about it. It wasn't exactly a ringing endorsement, but it did clearly support the agreement, concluding with:

A good agreement would lower duties and trade barriers on most products and services, strengthen labor and environmental protections, limit the ability of governments to tilt the playing field in favor of state-owned firms and balance the interests of consumers and creators of intellectual property. Such a deal will not only help individual countries but set an example for global trade talks.

The endorsement resulted in the Times being rightly mocked for endorsing a secretive agreement that the NY Times editorial writers had not seen (indeed, could not see). Apparently, some folks on the editorial staff took at least some of this criticism to heart, and have now released a new editorial that is much more critical of the TPP -- in particular, the process around it.

That is, while the editorial still (rightly, in our opinion) supports the idea of lowering key trade barriers, it finally acknowledges that a lot of what the TPP is doing has little to do with removing trade barriers, and plenty to do with helping corporations push through global regulations that it could not get adopted domestically. Furthermore, it directly takes on the fact that the USTR is ridiculously secretive on the negotiation with everyone except big businesses that have direct access:

The Obama administration has revealed so few details about the negotiations, even to members of Congress and their staffs, that it is impossible to fully analyze the Pacific partnership. Negotiators have argued that it’s impossible to conduct trade talks in public because opponents to the deal would try to derail them.

But the administration’s rationale for secrecy seems to apply only to the public. Big corporations are playing an active role in shaping the American position because they are on industry advisory committees to the United States trade representative, Michael Froman. By contrast, public interest groups have seats on only a handful of committees that negotiators do not consult closely.

That lopsided influence is dangerous, because companies are using trade agreements to get special benefits that they would find much more difficult to get through the standard legislative process. For example, draft chapters from the Pacific agreement that have been leaked in recent months reveal that most countries involved in the talks, except the United States, do not want the agreement to include enforceable environmental standards. Business interests in the United States, which would benefit from weaker rules by placing their operations in countries with lower protections, have aligned themselves with the position of foreign governments. Another chapter, on intellectual property, is said to contain language favorable to the pharmaceutical industry that could make it harder for poor people in countries like Peru to get generic medicines.

The editorial further notes the problematic "corporate sovereignty" provisions that allow companies the ability to sue countries for regulations they dislike, noting how it could be abused by banks to block financial regulations (as an example). It further questions some of the predictions of economic benefits from these agreements.

Towards the end, it notes (as many of us have been pointing out for years) that the Obama administration, and the USTR in particular, only have themselves to blame for this mess:

To a large extent, the administration has only itself to blame. By keeping secret so much information about trade negotiations, which have ceased to be purely about trade matters like tariffs and quotas, the government has made itself a target for criticism. Mr. Obama and Mr. Froman argue that their critics have misunderstood or misrepresented their intentions. But that is precisely why the president should provide answers to the questions people have raised about these agreements. It is time for him to make a strong case for why these new agreements will be good for the American economy and workers.

Of course, considering how many times this has been pointed out, and the USTR's only response is to push out blatant misrepresentations of the truth, it seems unlikely that anything is going to change any time soon.

Filed Under: cronyism, michael froman, ny times, tpp, transparency, ustr

USTR Promises Congress TPP Will Have Strong Environmental Protections; Then Immediately Denies Saying That

from the but-of-course dept

Back in January, you may recall that Wikileaks helped leak out the TPP's environmental chapter. It showed fairly weak efforts to protect the environment, many of which appeared to be there more for show than anything else. While it did reveal that the US had been negotiating for greater environmental protections, it also revealed that it was somewhat alone in that position, leading many to believe that any final agreement is likely to be even weaker than what's currently in the chapter. In response to this, the USTR put out what appeared to be a fairly strong statement that it won't accept weak environmental protections in the TPP.

However, over at Huffington Post, Zach Carter notes that USTR Michael Froman isn't convincing anyone in Congress, because he's doing what he's always done best: talking out of both sides of his mouth, first promising strong environmental protections, then denying he ever said any such thing:

"Ambassador Froman was asked on I think it was four different areas, and each time he said it was absolutely non-negotiable from a U.S. standpoint," [Rep. Mark] Pocan told The Huffington Post. "So then at the end, I listed those four areas to make sure I had the U.S. position right. And he said again it was non-negotiable. And then right after that, Lloyd Doggett got up and said, 'So does that mean that if we give you fast track, you won't send us a deal that doesn't have that stuff in it?' And right off the bat, the answer was, 'I didn't say that.' And to me, non-negotiable is, you know, non-negotiable."

And, of course, one of those four key areas was strong environmental protections.

"Froman said we're not gonna sign it unless there's an enforceable environmental chapter," another attendee told HuffPost. "And Doggett says, 'What does that mean? … If we give you fast track, you're not gonna come back with a deal that doesn't have an enforceable environmental chapter?' Then Froman says very emphatically, 'I can't speak for the president. All I can tell you is we're working as hard as we can to get an enforceable chapter in there.'"

Except that, as USTR, it's kind of Froman's job to speak for the President on this issue.

But, even more to the point is that this highlights (yet again) how the USTR is flat out lying about fast track (also known as "trade promotion authority"). As we've pointed out, Fast Track gets Congress to abdicate its (Constitutionally-granted) powers to regulate international commerce, by denying it the ability to actually explore what's in these agreements. Instead, fast track more or less gives the USTR a form of "pre-approval" to come back with a final agreement, such that Congress can only give the total thing a yes or no vote.

The USTR has attempted, ridiculously, to mischaracterize fast track authority as the opposite, pretending that it allows Congress to set the parameters for what the USTR must negotiate. Yet, here it's pretty damn obvious that's not the case at all. These members of Congress are asking about environmental protections, and are being told its "non-negotiable" -- suggesting that the USTR understands Congress' intent here. Yet, when pressed specifically on whether, if given fast track, he is guaranteeing those proposals will be in the final TPP, Froman immediately pretends he said no such thing.

And while some may argue he can't promise that because he's only one of many parties involved in the negotiation, that very point highlights why fast track authority is totally inappropriate. Congress can't give up its sole authority in regulating international trade, based on a weak promise from the administration that it will try its best to get them what they want.

Filed Under: environment, michael froman, tpp, ustr

USTR Refuses To Show Up For Senate Hearing On Fast Track

from the how's-that-for-working-closely-with-congress dept

One of the biggest concerns that we've heard from Congress about the USTR's desire for fast track authority is the fact that the USTR has been positively dismissive of Congressional attempts at transparency. While the USTR pretends that getting fast track actually means great cooperation with Congress, apparently USTR boss Michael Froman decided to bend over and tell Congress to kiss his ass by not even bothering to show up for the Senate's hearing on fast track authority.

Several committee members said they were puzzled and disappointed that USTR Michael Froman passed on an opportunity to convince some skeptical lawmakers they need to establish Fast Track authority for President Barack Obama’s priority Trans-Pacific Partnership (TPP) agreement.

“I wish they were here,” said Portman, a member of the committee and a former US trade representative under President George W. Bush.  “It’s important.”

This shows the kind of disdain that the USTR appears to hold Congress in. Congress remains a mere nuisance in the USTR's ongoing efforts to put forth the best agreement possible for a bunch of crony friends who will soon be offering USTR staffers new jobs as lobbyists.

If the USTR can't even bother to show up to argue for fast track, while arguing how important it is, perhaps it suggests that Congress really ought not to give the USTR that kind of power. So far, the USTR has not been transparent. It has directly lied, repeatedly, to the American public about what it's trying to do, and when given the chance to explain itself to the Senate committee in charge of the very bill it wants to give it more power over the TPP and TTIP/TAFTA, it blows it off.

Filed Under: congress, fast track authority, international trade, michael froman, oversight, senate, tpp, trade promotion authority

USTR Says TPP Must Be Kept Secret, Because The Public Is Too Stupid To Understand It

from the democracy-in-action! dept

While TPP negotiators had hoped to finish off the negotiations in Singapore over the past few days, it appears that did not happen, though they claim to have made substantial progress and will meet again next month. From the reports of people there, the negotiators made sure that public interest groups were excluded from even the press briefing about the negotiations, which should tell you all you need to know about what the negotiators think of the public. But, in case you weren't sure, the USTR, Michael Froman, has finally explained why the TPP negotiating positions must be kept secret. Apparently, all of us in the public, are too fucking stupid to understand the important work that he's doing, and we might "misunderstand" it. Therefore, we peons must be kept in the dark, while important people like himself negotiate on our behalf. According to Jamie Love:

Froman said if the text was public, people would misunderstand "negotiating positions."

In other words, the USTR is not a fan of democracy.

If you think the public is too stupid to understand the public policy positions you're negotiating for, then you shouldn't be in that job.

Filed Under: democracy, michael froman, secrecy, tpp, transparency, ustr

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

The Most Nefarious Part Of The TPP Proposal: Making Copyright Reform Impossible

from the the-tricks-they-pull dept

So with yesterday's revealing of the IP chapter of the TPP, there are plenty of great analyses out there of what's in there, but I wanted to highlight some parts that are the most nefarious and downright slimy in that they represent parties (mainly the US) pretending to do one thing while really doing another. These are tricks pulled by a dishonest, shameful USTR, entirely focused on making his corporate buddies richer at the expense of everyone else. Remember, our current USTR, Michael Froman, has a long history of this kind of crap. While he hasn't been there throughout the negotiating process, it shouldn't be surprising that he "delivers" this sweetheart deal to a few legacy industry players.

Watch closely, and you'll see supporters of TPP, and especially USTR employees, make the claim that nothing or almost nothing in the TPP will require legal changes in the US. They'll say that this is just about "harmonizing" norms across borders to make it easier for businesses to do business internationally. This is a lie.

It's a lie in two different ways. First, there are multiple provisions in here that will absolutely require changes to US law. We'll discuss a few in other posts, but what's much more nefarious and downright obnoxious, is that this would lock in a variety of really bad copyright policies, making it nearly impossible for Congress to go back and change them. And that's a real issue, because, as we've been discussing, Congress is actually discussing copyright reform again. The head of the US Copyright Office, Maria Pallante, has proposed a bunch of changes to copyright law (some good, some bad), and astoundingly, just as Congress is at least trying to have the discussion about whether or not those and other ideas make sense, the USTR is looking to effectively tie everyone's hands by saying "these things cannot be changed," including many of the reforms that Pallante has directly proposed.

That's really quite incredible if you think about it. On the one hand, you have the very head of the Copyright Office suggesting some reforms, and you have Congress beginning the process to explore that. On the other, you have the USTR totally ignoring the sole power of Congress to make copyright and patent law, and effectively saying "you cannot make any of the suggested reforms." And then the USTR has the gall to ask Congress to give up its power to challenge specific provisions in the agreement? While we're concerned about the Congressional copyright reform process, at least it's being done in the open. The USTR has been hashing out the plan in TPP in total secrecy for years.

Who the hell does the USTR think they are that they can flat out override the Constitution and the Congressional process, and effectively block them in and stop any meaningful attempt at copyright reform? All done via a process driven entirely by a few special interests? It's anti-democracy. It's pure corporate cronyism by the worst cronies around.

Now, defenders of this proposal will lie. They'll claim that technically (1) Congress has to approve this and (2) nothing in a trade agreement can limit Congress's ability to pass laws. Neither point is really true (the fun with things that are "technically" true, but false in reality). As mentioned above, the USTR (and President Obama) is pushing extra hard for Trade Promotion Authority, which basically is Congress granting the USTR full power over the TPP. Normally, Congress would be able to debate, challenge and reject questionable provisions in the agreement. But, with TPA "fast track" ability, Congress could only give a yes/no vote on the whole package. And, yes, some will claim that they can just vote no, but the reality is that there are other parts of this agreement that are designed to make that nearly impossible. There are all sorts of little things that we'll be told we "need." TPA is a bit of theater. What's delivered to Congress will almost have to be passed -- so if it's granted (before it's even public what's in the full agreement) -- Congress has effectively approved the whole agreement.

As for the claim that Congress' hands cannot be bound by a trade agreement, this is again technically true, but it ignores that it becomes realistically impossible. The second that Congress tries to change a law that goes against the TPP -- such as, say, reducing the term of copyrights from the insane level today to merely crazy -- lobbyists and pundits will come screaming from every direction about how we can't abandon our "international obligations." We'll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it's in the trade agreement, "breaking it" becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they've perfected this process of getting crap they can't get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it. They're not even shy about it, admitting this is exactly how they got the DMCA in the first place. Considering that the TPP has a form of DMCA-on-steroids, it shouldn't be a surprise that they're using an even bigger trade agreement to do the same thing.

All of this should lead to a basic question: why is the USTR and President Obama directly trying to undermine Congress' sole authority over copyright and patent policy? Are they proud of the tricks they tossed in the agreement? I imagine that when the USTR staffers move on to their jobs in the same industries that pushed them to write the agreement this way, they'll all laugh about that time they fucked over the American public.

Filed Under: congress, copyright, copyright reform, maria pallante, michael froman, tpp, transparency, ustr