Who’s Afraid of the TPP?

November 13, 2013 David Newhoff Tags: julian assange TPP WikiLeaks

Ever heard of the Trans-Pacific Partnership?

Okay, if you’re an internet issues follower, then yes, you’ve heard of these international trade negotiations still underway. If you’re one of the other 180 or so million adult Americans, you probably haven’t. And that works out to be very convenient for the self-proclaimed protectors of Internet freedom, if you’re inclined to believe the Obama Administration is chomping at the bit to whittle away your First Amendment rights at the behest of Hollywood movie moguls. WikiLeaks just leaked what its editors seem to think is a damming excerpt from the trade agreement, and Mr. Assange has warned:

“If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.”

Ordinarily, that much hyperbole from the mouth of someone as transparently self-serving as Assange is its own weakness, but we’re about to see the blogosphere swell with headlines warning that the TPP is just like SOPA! Beware! The fact that the leaked excerpt is already out of date notwithstanding, we can agree without even seeing current drafts that the agreement-in-progress does have one thing in common with SOPA: it won’t affect your rights one wit. Since the US began Fair Trade Agreements in 2000, not a single one has effected a change in US IP law. And without a change to US law (and by the way SOPA didn’t change domestic law either), how exactly is my dancing in the crosshairs, as Julian Assange insists? I mean my dancing sucks, but I don’t think the USTR gives a damn.

Let’s be clear, the internet industry lobbies for and tries to sell the public a world view in which all activity online exists outside any law; and there is no way they’re not going to gin up fear over any trade agreement that covers intellectual property. And there won’t be any trade agreements that don’t include intellectual property because, so far anyway, IP is big business, quite possibly a business where you work right now. Meanwhile, Julian Assange maintains his apparent relevance by selling a lot of smoke and claiming there’s always a fire.

In all seriousness, any citizen so inclined should certainly pay close attention to these or any other trade negotiations and do so through less hyperventilating sources. I prefer other soporifics, but we all have our tastes. One thing that will not, however, be keeping me up is a concern that the USTR is presently engaged in chilling my or my children’s or my neighbor’s right to free expression. And you know why? Because free speech can’t be taken away as easily as certain self interests would have you believe. Dostoyevsky was executed by firing squad*, and we still read Dostoyevsky. Tell me a trade agreement unfairly favors a multi-national over a small business, and I’m listening, but tell me it threatens my right of free expression? Let ‘em try.

* No he wasn’t. See comment from Musician below and my response. I think the larger point is the same. I could have made any number of choices — Lorca executed, Wilde jailed, Solzhenitsyn imprisoned, etc. — but Dostoyevsky’s execution here is greatly exaggerated.

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Tags: julian assange TPP WikiLeaks

David Newhoff

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David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

20 Comments

Matt says:

November 15, 2013 at 12:07 pm

“Since the US began Fair Trade Agreements in 2000, not a single one has effected a change in US IP law. And without a change to US law (and by the way SOPA didn’t change domestic law either), how exactly is my dancing in the crosshairs, as Julian Assange insists? ”

This is the second time this morning I’ve seen this defense of the TPP come up and I find it entirely unconvincing. It’s nice that US domestic IP law is unlikely to change as a result of the TPP. But this argument entirely ignores a large group of people: basically, everyone who doesn’t live in the US (we do exist). People like Julian Assange.

There’s no denying that the US has a lot of clout when it comes to trade agreements, and those of us in countries with IP laws that differ from those of the US are legitimately concerned that our governments will feel pressured to agree to changes to domestic IP laws that serve US interests rather than our own. One way we try to prevent this from happening is by vocally opposing agreements like the TPP. In that way, concern over the TPP is as much about national sovereignty as it is about IP laws.

The idea that this agreement is just a draft is equally unconvincing. It’s not like we get monthly updates. If we wait until a finished agreement has been hammered out, it will be too late.

Reply
- Faza (TCM) says:
  
  November 15, 2013 at 1:23 pm
  
  Y’know, I’ve heard pretty much exactly the same arguments levied against ACTA (big deal in Poland, that was) and it was funny, in a sad way. For example, there was this whole thing about it being this ‘secret’ agreement that the government was trying to push through all quiet-like. Except I’d read the draft two years prior and the finished version was posted for anyone with an internet connection to peruse at their leisure long before anyone got around to ratifying it – if they could be bothered, that is, which they couldn’t, which was where the whole ‘secret’ thing came from.
  
  The thing about trade agreements is that they take a long time to hammer out and you can generally get a good idea of what they’re about well in advance – if you actually care to pay attention, just like David says. That means, y’know, actually following the news and reading reports. Boring, I know, but it helps you form your own opinions rather than buying spin.
  
  Call it pattern recognition, or Susan, but whenever I hear someone talking about the threat to free expression I feel somewhat more at ease with whatever it is that is being discussed, apart from the unmistakable whiff of cow dung coming from the defender of free speech. The wonderful thing about IP laws – to date, at least – is that you get exclusive rights to your own expression the moment you express it. IP is actually a terrible vehicle for censorship, because it actually protects the person making the expression (provided it is his or her own). If you want to institute actual censorship, you must first take away the premise that people are free to do whatever they damn please with their own expressions.
  
  As for the possible inability of doing whatever you damn please with other people’s expressions, my suggestion is simple: how about showing some elementary creativity and saying it in your own words? What do they teach kids in school nowadays?
  
  Reply
- David Newhoff says:
  
  November 15, 2013 at 1:57 pm
  
  Matt, you’re right about the US-centric post, and I did think about that. The problem is that it’s very hard to generalize about free expression outside the US. While I would love to see a world in which the right of speech is universally supported, there are cultures in which our notion of free expression isn’t even desired. Regardless, one must go to great lengths to demonstrate how enforcement of any producing nation’s IP in trade agreements becomes the mechanism that will stifle free speech anywhere. The reality is that countries with a history of strong IP laws have rich and financially prosperous culture industries; those that don’t, don’t. In the big picture, do you honestly believe that fostering investment in products like music, movies, and books isn’t good for free expression overall? Of course, if one defines speech as the right to consume anything, anytime, anywhere, and for free, that’s another matter, and our disagreement is semantic and philosophical.
  
  Reply
M says:

November 17, 2013 at 10:33 am

TPP seems to export the elements of US Copyright law that are “strong” without exporting the stuff that is “weak”. US copyright law is a balance that permits many usages of copyright works WITHOUT permission of the copyright holder. This is called fair use, of course. But of course the kind of people who write these treaties aren’t interesting in exporting that balance. For instance, US actually has some of the strongest fair use exceptions to copyright both in law and in case law.

One very recent and profound example: Google digitally copied what amounts to virtually every book that has ever been published and allows free access to substational portions of the world’s books over the Internet. This usage was recently judged to be fair use.

There are other examples that show that US’s fair use is quite broad. As long as a usage can be shown to be for the public benefit and not cause substational financial harm to copyright holders, a fair use argument can probably be made successfully. I don’t think this is the case in some other countries.

Reply
- James_J says:
  
  November 17, 2013 at 11:17 am
  
  RE Google Books:
  that is NOT a settled case. FYI, they didn’t win against the Publishers Guild.
  I know you’re cheering to the end of all but corporate interests making money off the backs of the little guy, but on this occasion you’re going to need to hold your enthusiasm .
  
  Reply
  - M says:
    
    November 17, 2013 at 11:54 am
    
    The Author’s Guild could also appeal as well. But it limits the plaintiffs’ options, so it is a pretty significant win for Google at this point.
    
    I don’t view this as David vs Goliath, since there are huge financial interests on both sides.
    
    What I see though, is Google made a service that could literally give access to entirety of human knowledge to anyone with Internet access, and the ability to search through tens of millions of books no different then any other search query. It’s not a pipe dream. They made it already.
    
    And I see a bunch of plaintiffs that just don’t want this. A see them defending business models built in a world where a service like Google Books is a pipe dream, not a reality. I see them defending business models that are based fundamentally on developing and maintaining a scarcity of knowledge, business models that intentionally make knowledge more difficult to access, and where knowledge is less accessible to lower economic classes.
    
    To not allow a service like Google Books is to put a damper on the progression of humanity. All to serve no other purpose but to maintain business models that can no longer, and do no longer benefit the public interest.
    
    Unfortunately, due entirely to these interests, Google Books is not as useful as it could be. In fact, this has entirely everything to do with the sorry state of copyright law and nothing to do with the technology itself.
    
    Google had to spend significant engineering efforts, efforts that could be used to improve the service instead, to serve no other ends except to literally make their service less useful. They do this by randomly introducing defeats into the service, such as removing pages from books and other shenanigans so that researchers can’t use the service to get a complete context. These are not features, they are anti-features. They exist for no other purpose but to disallow the service to function in its true potential. By literally introducing defects into the service, they are working to make it defective by design. All because of a legal regime that demands defeats in products such as Google Books. That’s somewhat disappointing to me, but it’s a start.
    
    But removing all those legally-imposed defects will be a trivial change (perhaps just setting a configuration variable) and I think one day we’ll see a books service that is not hampered by the current limitations imposed by copyright law. That’s my hope. I want to see a world where the entirety of knowledge and culture is made available to the whole world.
  - John Warr says:
    
    November 17, 2013 at 2:45 pm
    
    Hmmm! See the judgement says that this doesn’t affect business models and here is M fapping about business models.
    
    Invariably when I end up on a Google books page, what I end up looking at an entire chapter. I rarely need the whole book for research just a chapter or more usually a couple of pages. Most people doing research are the same. In the past I’d go order a copy from the local library and the author would get compensated via the Public Lending Rights. Perhaps if the US had a PLR system this theft would have been seen for what it is. What I don’t see is the Googleplex paying authors for the commercial expropriation that they are engaged in.
  - Andrew says:
    
    November 18, 2013 at 7:26 am
    
    @M:
    
    “And I see a bunch of plaintiffs that just don’t want this.”
    
    M, you are hampered by a worldview that is extremely simplistic and native. Authors and publishers would be delighted with a Book snippet service. So would many others. The argument is whether you destroy a long-standing principle in order to achieve it quickly, and the consequences that entail once that principle has been destroyed.
    
    Chin’s justification for his strange decision is that the ends justifies the means. Once an author loses control of who can do the copying, and the copying can be justified by a beauty contest, then all manner of things become “justifiable”.
    
    If I want something of yours, then I’ll be able to take it.
    
    In almost every other jurisdiction in the world the exceptions to copyright are very clearly and narrowly defined. By making “Fair Use” justify almost any action, the US is putting itself outside the international legal system as surely as it did when it invaded a foreign country using the doctrine of the precautionary principle.
    
    Chin has clearly stated he is acting because “Congress can’t”. An activist, unelected judge is doing politics.
  - M says:
    
    November 20, 2013 at 6:26 pm
    
    M, you are hampered by a worldview that is extremely simplistic and native. Authors and publishers would be delighted with a Book snippet service.
    
    Maybe you misread what I said. I don’t want a “book snippet service”. I want all the books and published materials dating back to the dawn of civilization available on the Internet, with no restrictions to any person on this planet for sharing or deriving from such knowledge. Nothing less. If you know of any publishers that are okay with this idea, let me know.
- Andrew says:
  
  November 18, 2013 at 7:33 am
  
  @M:
  
  “As long as a usage can be shown to be for the public benefit and not cause substational financial harm to copyright holders, a fair use argument can probably be made successfully. I don’t think this is the case in some other countries.”
  
  I think you mean “substantial”.
  
  But you are broadly correct, the rest of the world does copyright differently, it must abide by the 3-Step test, and states can only weaken protection through narrow exceptions and exemptions. By signing up to Berne and WIPO the United States has agreed to do it the world’s way.
  
  So a choice looms. Activist US judges may if they wish continue to broaden “Fair Use” to undermine property rights, but if they do, the world will retaliate economically, since the property of individuals in the rest of the world is being devalued. Since the US is the world’s biggest IP exporter, this will harm the US more than the rest of the world. Or the US can attempt to set limits for its greediest corporations, like Google.
  
  Which is it to be – international outlaw? Or global citizen?
  
  Reply
  - M says:
    
    November 20, 2013 at 6:38 pm
    
    It’s not like USA is some kind of rogue anti-copyright state. The failure of copyright is international because the instrument of its failure (the information age and its internet) is international.
    
    “And yet it moves.”
    
    And even if you manage to infiltrate the legal and political system with advocates of the old ways, it won’t make a damn lick of a difference because technology and science overrules all hapless laws of man.
musician says:

November 17, 2013 at 2:19 pm

The author completely blew it when he said “Dostoyevsky was executed by firing squad.” Not only is this factually inaccurate, but his point is invalid considering the majority of Dostoyevsky’s literary output was written after his aborted execution.

Reply
- David Newhoff says:
  
  November 17, 2013 at 3:22 pm
  
  Musician, you are totally right. As soon as a I saw your comment appear on my phone, I flashed an image of my high school English teacher waggling her finger at me. Bizarrely, I wrote that post while tired and having just read a poem by Charles Bukowski in which he lists authors and their deaths, mentions Dostoyevsky and firing squad; and so it was the first thing that came to mind in context. I’ll add a note to the post. Mea culpa. Thank you.
  
  Reply
timthijm says:

November 17, 2013 at 2:42 pm

I still feel somewhat concerned, as others have said, over what will occur in countries outside the US. For some crazy reason, Stephen Harper (the prime minister of Canada, where I live) was so eager to be a part of the TPP (to sell oil I imagine) that he relinquished Canada’s ability to actually make changes to the document: we just accept whatever is made up at the end. This is somewhat concerning for two reasons:
1. Online property-wise, Canada doesn’t follow the same “notice and take down” process (http://en.wikipedia.org/wiki/Notice_and_take_down) that the US uses but rather “notice and notice” (http://en.wikipedia.org/wiki/Notice_and_notice) which is a bit less extreme and, as Wikipedia puts it, “attempts to protect both parties’ interests,” which is always pleasant. I would not want to see “notice and take down” implemented in Canada. David, do you have any knowledge of whether this is actually being discussed?
2. Health care & pharmaceuticals. This has been a sore thumb for people in countries with universal healthcare in the TPP-scare-a-thon, so maybe that can be clarified too. There’s suggestion that other countries would have to stop buying brandless drugs for patients (instead buying from big companies, which is how that works in the US), which would raise costs significantly. One would imagine proponents of universal health care in their respective countries would be very reticent to pass anything like that, but it’s still a source of concern.
That’s just why I’m still nervous. Here’s to hoping that it will become more transparent as information coalesces.

Reply
- David Newhoff says:
  
  November 17, 2013 at 3:57 pm
  
  Timthijm:
  
  I don’t have detailed knowledge of these ongoing negotiations, although you can certainly assume the USTR is going to seek to protect US IP, which will include asking participating nations to enforce anti-theft policies. I personally don’t see grave harm done by “notice and takedown,” but that’s another discussion. This post is principally targeting the over-used tactic of claiming that any and all regulation must inherently threaten free expression. The problem is that this message corresponds with the premise that consuming all content, even by infringing means, is a form of free speech.
  
  As for healthcare and pharmaceuticals, I share your concerns and sincerely wish my own country were not adverse to the concept of universal healthcare for fear that it invokes the terrible S-word. On that score, if WikiLeaks or any other investigative body can demonstrate clear evidence that the US through the TPP is going to export its dysfunctional healthcare system to other countries, I would strongly advocate marching in the streets as soon as possible.
  
  Beyond that, I do have my doubts about the value of an illusion of transparency. Even if it were desirable, it simply isn’t possible to have hundreds of millions of people conduct a by-the-minute referendum on something as complex as a multi-national trade agreement. Diplomacy is by necessity conducted by small groups of representatives and, yes, behind closed doors. These deals are rarely perfect — the nature of all deals is that everyone walks away somewhat unsatisfied — but they do have a way of preventing wars and outright anarchy.
  
  Reply
Tangeray says:

November 18, 2013 at 1:22 pm

Where are all the bills to protect website owners and small businesses from hackers? IP laws, SOPA and TPP only benefit mega large corporations. $5 to rent a video off Xbox live? And I have to use my bandwidth! Suck my dick. http://www.youtube.com/playlist?list=PLvhybTYIbLW71NLP6Cl-utS7Q2P1RndmO

PS – I make music and have an album out

Reply
- David Newhoff says:
  
  November 18, 2013 at 1:37 pm
  
  Although your comment technically violates comment policy on this blog, I’m approving it since you’re a musician and entrepreneur and not afraid to post under your own name. Someone else may wish to respond to you, but I think if you take a breath, you might consider the possibility that your interests are actually aligned with those big, evil corporations. In short, in a world without IP laws, your potential rapidly shifts from difficult to hopeless.
  
  If a movie isn’t worth $5 to you, don’t watch it; but let’s not pretend it’s a lot of money in a world where that’s the price of a fancy coffee at Starbucks and was the box office ticket price in major cities in the early 1908s. A whole family can see a feature film in their home theater for $5. That’s not a ripoff, that’s a friggin’ cheap night’s entertainment when you consider that same family would have to buy individual tickets at the cinema. Or the movie could just not exist.
  
  Reply
  - Tangeray says:
    
    November 18, 2013 at 2:15 pm
    
    Thank you and I apologize for my vulgar language – I can’t edit it out and will refrain from further usage.
    
    There are already IP laws. The problem is new IP laws only protect large corps and mainstream artists as they are the only ones with the resources to fight the court battles. They have the distribution, which drives sales, increasing the resources to collect their money.
    
    While a well off family loaded with iTunes gift cards that take 30% off the top of all artists earnings, not including the cost to get on iTunes and what the online labels will charge (because you can’t get on iTunes unless you have 20 albums in your catalog) might not steal, it becomes very inciting for a 13 year old in an apartment to download Transformers 12 instead of paying $5 to watch. Had it been a reasonable rate of $1-2 it would be easier to just to rent.
    
    A few months ago, Comcast – the largest Cable TV and Internet provider bought Universal. Universal Studios, all thier video content, Universal Music which owns Interscope. They own Eminem’s catalog.
    
    I don’t steal art, I support art that I approve the message of. I want more of it made. The interests pushing SOPA, PIPA, TPP or any other law in legislation only care about protecting their interests, which have absolutely nothing to do with art. It is about controlling and maximizing revenues of communication – from the distribution to the content to the product placement and advertisement of their sponsors and their holdings.
  - David Newhoff says:
    
    November 18, 2013 at 3:28 pm
    
    No worries, Tangeray. All forms of language are welcome as long as the words offer something substantive to do with the subject and don’t personally attack anyone beyond reason.
    
    IP laws do already exist, and I’d point out that, for instance, SOPA didn’t establish any new IP law whatsoever. Neither did it mandate any new behaviors on the part of citizens. It only exerted pressure on corporations like Google, Visa, etc., and they launched a scare campaign. So, I’m all for a level playing field among indies and giants, but only if we account for all the giants in the arena. Likewise, the TPP doesn’t affect or amend existing IP laws, and I hope you’ll forgive me for reading your view as a little over broad and erroneously cynical. As a cynic myself, I sympathize, but I think you’re missing a point when you say “they’re they only ones with the resources to fight the court battles.” That’s right. Which is why I say your interests are aligned with the studios, labels, publishers, etc. Without their resources, the IP laws as you know them would likely cease to exist because the internet industry, which has more money by the way, is trying to weaken those laws to irrelevance.
    
    Your second paragraph packs a lot inasmuch as you’re justifiably frustrated with iTunes from a producer’s standpoint, but also making the case that affordability and flexibility mitigates piracy. This argument is made all the time, and the answer is “sort of.” In the major markets worldwide, piracy has increased despite the availability of affordable alternatives. On the other hand, there are some indications that piracy is waning in the U.S., which is also leading the market in terms of affordable alternatives. Still, my personal sympathy for the 13 year-old who wants to download Transformers on-demand and for free is zero. On the scale of human deprivation, it’s hard to believe this subject gets as much attention as it does.
    
    Finally, you are getting into the realm of art v commerce, which is a tension that has existed for as long as there have been artists who also wish to eat. Artistically, you’re not going to find me defending a lot of what the major studios and labels produce, but I will defend the economic value of these industries for the country and the need to protect that value for those companies because it also protects you. Also, it’s very difficult to decide who’s responsible for the “artlessness” of a lot of the media being produced — the producers or the public that keeps consuming it.
    
    Thanks for following up.
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