How to Protect Your Digital Rights from the TPP

By now, you know that the Trans Pacific Partnership (TPP)—a really big-ass global trade agreement among twelve nations including the United States—is at this point pending delivery to Congress for debate and presumptive ratification.  And this means we can expect to see various organizations and corporate interests dial up the rhetoric regarding key provisions in the deal.

Although the TPP is a voluminous package of agreements covering a wide range of trade sectors—and there may yet be things not to like about the treaty—the Electronic Frontier Foundation has openly announced that it is their intention to turn the TPP into the “new SOPA” principally because of the copyright provisions in the agreement.  Their stated strategy is to “Overwhelm Congress members … demanding they vote down the TPP…” and to “…turn the TPP into a household name for toxic digital policy, much like we did with SOPA.” In short, the EFF is hoping they can scare the hell out of us—again—by convincing us that the “digital rights” we have today will be adversely affected by the passage of this trade agreement.  But, if you are worried, here are some steps you can follow if the TPP is ultimately ratified:

Step 1:  Live your life.

Step 2:  Use the Internet.

Step 3:  Use social media platforms like Facebook and Twitter to share your experiences, ideas, opinions, observations, etc.

Step 4:  Try not to launch a business based on infringement of copyright, trademarks, patents, or trade secrets.

Step 5:  Return to Step 1.

If it sounds like I’m suggesting that your “digital rights” might be exactly the same after passage of the TPP as they are right now, that’s because they will be.  And we can have confidence in this assumption for two reasons.  The first is that, like all prior U.S. Fair Trade Agreements enacted over the last 15 years, implementing TPP will require no material changes to existing U.S. IP laws.  And the other reason is that the EFF seems to know this is true based on the language they use in their various warnings.  In fact, their primary concern appears to be that the TPP would be one reason US IP law will not change.  To quote:

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S., this will further entrench controversial aspects of U.S. copyright law—such as the Digital Millennium Copyright Act (DMCA)—and restrict the ability of Congress to engage in domestic law reform to meet the evolving needs of American citizens and the innovative technology sector.

That is a purposely vague (and frankly insulting) way to raise a red flag about a threat to our rights.  Because what that statement says, in its opaque way, is that if the U.S. becomes a signatory to the TPP, this might prevent Congress from amending “controversial” aspects of existing copyright law. So, while spreading the message that our “digital rights” are threatened by the TPP’s IP provisions (i.e. implying change), the message the EFF is really selling is that copyright law as it stands is already affecting your “digital rights”; and if Congress ratifies the TPP then it may not be able to “fix” copyright.  (By the way, this happens to not be technically true, even if we all agree about what needs “fixing” in the law. Note that even if Congress ratifies TPP, it will not consequently abandon the copyright review process currently underway.)

The general assertion that the status quo of copyright’s contours fails to “meet the evolving needs of citizens or stifles innovation” has, in my view, not yet been clearly demonstrated for as many times as this mantra has been repeated by various parties. But even if there is merit to this general argument, it’s really a debate about utilitarian aspects of copyright and business applications, which is not technically a conversation about broader civil rights, as the EFF likes to imply when they endeavor to frighten citizens with the pitchfork-wielding urgency of calling Congress to stop the TPP.

Where the EFF might almost have a point is with regard to the length of copyright terms.  Since the length of terms we have today—life of the author plus 70 years—was last extended to maintain parity with trading partners, it is not unreasonable to assume that a trade agreement like the TPP could, as they say, “entrench” the length of terms at their present state, which some people consider inappropriately long.

At the same time, other trading partners, who presently have terms of Life + 50 could extend those terms another 20 years to match other TPP signatories.  And while length of copyright terms is indeed a sticking point for many people (despite not knowing much about how they came to be where they are), there is surely no metric anyone can produce to determine the threshold where copyright terms will uphold, rather than infringe, our “digital rights.” I mean, if we roll back terms in the U.S. to Life + 50 and they have a big ol’ EFF party over it, will our “digital rights” magically be 30% more secure? This is an exercise in vagaries and illusions; and there’s a reason I keep putting the words digital rights in quotes:  it’s because I have no idea what they are.

I know what my rights are as a citizen of the United States. They’re spelled out in the Constitution and in subsequent laws based on that framework.  But there is no separate bundle of cybernetic rights that kick in while we’re using Facebook or Twitter or Buzzfeed. There are no digital rights; there are simply rights.  And if someone uses digital means to infringe your rights, whether that’s your privacy, your safety, your property (including your copyrights), your consequent right to remedy that infringement is no different than it would be in a non-digital context. Or to quote U.S. Assistant Secretary of State Michael H. Posner in a statement from 2012:

“We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil — or more noble — when it is committed online rather than offline. You can’t sell child pornography in Farragut Square or Tahrir Square, and you can’t sell it on the Internet, either. You can’t break into a theater and steal the movie reels and you can’t steal movies online, either. You can’t beat up and gag a peaceful protestor and you can’t jail her for a blog post criticizing a government policy, either.”

Issues like copyright reform and trade negotiations are conversations about details, many rather boring details that most of us citizens can be forgiven for not bothering to review.  As a result, the EFF and similar organizations have a pretty easy time frightening people with harsh yet rather vague declarations about the ways in which copyrights threaten our broader civil liberties on the Internet.

You might recall Guideline #4 from the recently posted Guide to Critiquing Copyright in the Digital AgeMake some crazy shit up.  Well, the EFF recently posted some fifty or so bullet points describing grave concerns various constituencies should consider if the TPP with its IP provisions should pass.  None of these points are on particularly solid ground, but several of them are Prime USDA, Grade A made up crazy shit. And you don’t have to be in IP attorney to know it.  Here’s one of my personal favorites:

• Those who put on a themed party or cosplay based on a character from a favorite show or movie could be forced to pay a penalty or have images from it removed from the Internet. Again, the risks and penalties are much higher if it happens on a “commercial scale.”

I double-dog-dare anyone to say that out loud with a straight face.  If Congress passes the TPP in its present form, and then my teenage daughter and her friends have a cosplay party, take pictures at said party, and post their pictures on Facebook, the EFF really believes these kids could face a fine or have their pictures removed?  Daa-am, that’s some high-test, made up crazy shit right there, presumably trying to scare people because Anime-producing Japan would be a party to the TPP. There is nothing in U.S. copyright law to support an argument that such a scenario would constitute an infringement, and any takedown of those hypothetical pictures would be wrongful and, therefore, remedied through existing counter-notice procedures.  And no, Japanese Anime producers are not going to sue your kid for cosplay. Odds are, this came up in discussion among these rather sophisticated trading partners.

Certainly it’s true that if I wanted to launch a new product or open a retail establishment, and I used copyrighted Anime characters in a party to promote that launch, then I might be infringing.  But the boundaries and limitations of copyright in this circumstance are broadly the same today as they were before we were on the Internet and the same as they would be after ratification of the TPP.  To say otherwise is just making crazy shit up.  Here’s another one:

• If you stream some copyrighted gameplay with commentary to friends and other fans, the video may get taken down or the user may be forced to pay a fee.

The top-earning YouTube star (at $12 million a year) PewDiePie, a Swedish citizen, does exactly what’s described in this scenario; and quite a few other game commentators and critics around the world do essentially the same thing.  In general, these creators are either left to their own devices or occasionally form partnerships with game companies that recognize the promotional value of their contributions.  Once in a blue moon, a game developer has been foolish enough to use DMCA takedown provisions in an attempt to censor a vlogger game critic; and the unofficial remedy for this misuse of DMCA has often been publicly shaming the company into proper behavior, to say nothing of the actual legal remedies available to the video creator.  Again, the legal framework pertaining to this example is already in place and will not be changed as a result of passing the TPP.

Review the list, if you have nothing better to do. But if you pay close attention to the language the EFF uses in many of its most dire warnings, they don’t really assert that the TPP will impose new restrictions on us as Internet users. And with good reason.  What the litany of doom actually contains is a mundane assortment of hypothetical cases of infringement claims that could arise with or without the TPP; and each of these examples implies exactly same remedies available to all parties that have existed for years.  What the EFF is really saying, of course, is that they are opposed to anything that might validate or uphold the status quo of copyright law, which is an entirely different conversation, and one they should present more frankly.

© 2015, David Newhoff. All rights reserved.

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