Thursday, November 28, 2013


Reblogged from:

The leaked TPP draft, pried loose from the "open and transparent" grip of the USTR, is generating plenty of commentary all over the web. After getting a good look inside, it's little wonder the USTR felt more comfortable trying to push this through under the cover of darkness.

As the criticism of the push for IP maximalism mounts, the treaty's defenders have leapt into the fray, hoping to assure everyone who wasn't previously aware of the treaty's contents (which is pretty much everyone) that there's nothing to see here and please move along.

Mike recently broke down the ridiculous claims and posturing of the USTR's "talking points." Amanda Wilson Denton, counsel to the IIPA (International Intellectual Property Alliance) has showed up right on cue to "set the record straight" on the leaked TPP draft. Let's see how well she followed the talking points. (Talking points in bold.)
The Draft Is Already Outdated

The only thing that can certainly be said about this draft is that it does not reflect the current state of the negotiations...

If it is what it purports to be, the draft reveals a snapshot in time of the ongoing work of the participating countries to hammer out an agreement in Intellectual Property Rights…

Sure, it's only a "snapshot." But unless everything's changed since then, it's a very representative snapshot of the involved countries' stances on IP issues. Just because the work is "ongoing" doesn't mean its improving.

What It Would Not Require: Changes to U.S. IP Law

While it is impossible to say right now what a TPP IP chapter would do, experience provides an answer for what it would not do -- since the U.S. began negotiating FTAs again in 2000, no FTA has required a change to U.S. intellectual property law.

The U.S. proposals mirror the current duration of copyright in U.S. law. They track the provisions already agreed in previous FTAs regarding the technologies that rights holders use to control access to their works and limitations on liability to benefit ISPs, including the FTA agreed between the United States and Korea that entered into force in 2012…

In sum, the putative U.S. positions revealed in the leaked text would be consistent with U.S. law and prior free trade agreements approved by Congress, and most importantly would help to achieve better copyright protection among our trading partners…

While we understand that there are parties that don't like present U.S. law and policy, this leaked text demonstrates a fealty to existing U.S. law, and not an abandonment thereof.

So, if you love current US IP law (and wish it would be expanded), you'll love the TPP. If you don't, well… get used to it. The US is running your IP show now, foreigners.

Denton does admit there is one change to existing US law, something only a maximalist would be happy to see -- a provision that would allow rights holders to pursue criminal charges against those who "aid and abet" copyright infringement. Great news! That means you no longer have to actually infringe to be held criminally accountable. All you have to do is be adjacent to it.
The Only Real “News” – Many Bogus Claims Are Now Verifiably False.

The only real “news” in the leaked text is that various claims (e.g., TPP endangers Internet freedom, TPP is SOPA) are now provably false.

[T]he issue that generated controversy surrounding SOPA—website blocking through DNS blocking—is entirely absent from the text as recently noted by Ambassador Froman. Froman specifically raised the issue of “blocking rogue Internet sites from accessing the Internet from the United States” in a recent interview published in the November 18, 2013 issue of Washington Trade Daily. He stated unequivocally: “There is nothing in the Trans Pacific Partnership, zero, that has anything to do with that...”

Any comparison to SOPA/PIPA is completely inappropriate and inaccurate.

Comparisons to SOPA are valid because the leaks show the US is pushing a maximalist hard line, one that goes much further than most other countries are willing to go (Australia being the notable exception).

SOPA was a maximalist's dream. Since a majority of Americans are not maximalists, the bill was tough to sell. The USTR knows this, which is why every aspect of these negotiations has been as secretive as possible. Simply stating the TPP is not SOPA because it isn't exactly the same is a weak dodge. It has the same intent. The TPP will harm internet freedom the same way SOPA would have. Secondary liability will now be a criminal act, as Denton points out in her defense of the agreement.

And as for Ambassador Froman's claim that the TPP doesn't provide for the blocking of "rogue sites," former USTR employee and current analyst for the ITIF (SOPA's "intellectual backer") Michelle Wein actually points out that it does in her op-ed defending the proposal.

In addition, the text does not require ISPs to block access, but instead asks that they take reasonable steps: "Court-ordered relief to compel or restrain certain actions shall be limited to terminating specified accounts, or to taking reasonable steps to block access to a specific, non-domestic online location. [emphasis added]" Essentially, this means that courts cannot make ISPs financially liable for copyright infringement by their users, but can ask them to take steps to block access.

When the government starts "asking" ISPs to "take reasonable steps" (what does that even mean?) to block sites, it's not a request. It's a very forceful suggestion with potential legal implications, as most court ORDERS are. ISPs may not be liable for customers' infringement, but they can certainly be held liable for not "taking reasonable steps" to block access. "Reasonable" is in the eye of the beholder, and what that means for ISPs is that courts will be making this call after they've already issued an order "asking" them to block sites.

What's being witnessed here is the US attempting to make the world beholden to its rights holders. The TPP makes a mockery the last word in its title. There's no "partnership" here. Just a country misusing its stature and economic power to rewrite international IP laws in servitude of a few select industries.

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