
Users Have Been Betrayed in the Final TPP Deal - DiabloD3
https://www.eff.org/deeplinks/2015/09/users-have-been-betrayed-final-tpp-deal-help-us-tell-washington-how-you-feel
======
walterbell
While we await public release of the final TPP text, here is a review of a
draft IP chapter, [http://www.freezenet.ca/an-analysis-of-the-latest-tpp-
leak/](http://www.freezenet.ca/an-analysis-of-the-latest-tpp-leak/). We need
specialists and journalists to present credible analysis for the hundreds of
millions of people who would be bound by the proposed laws.

 _"... breaking a copyright protection system (i.e. DRM, TPM, etc.) would land
you in hot water ... if you need to circumvent a DRM for personal use, you are
now liable for criminal penalties. Traditionally, for many jurisdictions,
circumventing DRM is typically reserved for civil penalties. Criminal
penalties implies that the government would foot the bill for enforcement. In
civil cases, it is typically rights holders that go after individuals.

... civil damages do apply. How much are civil damages if an alleged infringer
is found guilty? Well, that is up to rights holders, not a judge. Prosecution
is able to determine the damages and a judge would have to accept whatever
number comes out regardless of evidence to the contrary. A good example might
be that a song may be sold for 99 cents, but the damages sought could be in
the millions for all the prosecutors are concerned.

... an act of copyright infringement as set forth in this “trade” agreement
doesn’t actually have to occur before the authorities are sent after you.
There just has to be evidence that infringement is taking place or is about to
take place.

... if you have a cell phone, and you have something on it that could be
considered infringing, authorities have the right to seize it because you are
suspected of trafficking. Of course, you could also be liable for civil and
criminal penalties as earlier outlined and could be fined any amount copyright
holders feel like.

... you could be fined on the spot because of your cell phone on top of it
all. No need for a judge here. Also, no, you may not get your cell phone back.
It could be destroyed ... Who gets to pay for all of this? According to page
77, you do."_

~~~
derekerdmann
I'm not convinced this analysis is reading the draft fairly:

 _... if you need to circumvent a DRM for personal use, you are now liable for
criminal penalties. Traditionally, for many jurisdictions, circumventing DRM
is typically reserved for civil penalties. Criminal penalties implies that the
government would foot the bill for enforcement. In civil cases, it is
typically rights holders that go after individuals. "_

Except that here's the actual text:

> Each [7] Party [US/SG/MX/NZ/PE/JP/BN/AU/CL/MY propose: shall] [CA propose:
> may] provide for criminal procedures and penalties to be applied where any
> person is found to have engaged willfully _and for purposes of commercial
> advantage or financial gain_ in any of the above activities.

That doesn't sound like "if you need to circumvent a DRM for personal use, you
are now liable for criminal penalties" to me.

~~~
walterbell
Your quoted text is a sub-clause of (ii) below, which applies to device supply
chains.

Personal, non-commercial circumvention of DRM is addressed in (i) below.

 _" (i) knowingly, or having reasonable grounds to know,[174] circumvents
without authority or any effective technological measure that controls access
to a protected work,[175] performance, or phonogram;[176] or

(ii) manufactures, imports, distributes[177], offers for sale or rental to the
public or otherwise provide devices, products, or components, or offers to the
public or provides services, that:"_

~~~
anigbrowl
No it isn't. It's part of the superordinate clause (a), and you can tell that
because the subclause of (ii) that you mention has further subclauses
((A),(B),(c)) which end with a period. Think about how this would be indented:

    
    
      1. *Blah blah blah.* Blah blah, blah blah blah blah blah:
        (a) blah blah blah; blah blah, blah blah blah where
          (i) blah blah, or
          (ii) blah blah blah, blah:
            (A) blah,
            (B) blah blah, or
            (C) blah blah blah.
    
          Blah blah blah, blah blah blah blah blah.  *<< this is still part of subclause (1)(a)*
    
        (b) Blah blah blah [...]
    

One of the depressing aspects of this whole TPP/TTIP debate here on HN is that
although most people here either write code for a living or at least know how
to do so, very few have ever thought through the fact that there are rules of
scope in legal documents as well.

I appreciate that such documents are very confusing, even more so when they
are in draft form and include multiple 'live' options (rather like improperly
declared constants in programming), and more so again when they're presented
as just a big wall of text without any typographic structuring that would make
them easier to read. Parsing such complex documents _is_ difficult; if it were
easy then courts would be less busy than they are. But a great deal of the
'analysis' of the impending trade agreements (as well as other legal stuff
that is sometimes posted to HN) seems to start with an assumption about
meaning or purpose, and then go through the text looking for clues to back it
up. This is a fast track to self-deception and eventual defeat in the event of
a dispute.

I'm not a lawyer, just a law nerd.

~~~
ne0n
I have a question that's off topic from the TPP/TTIP debate. I have another
friend that is interested in this topic. Do you think it's possible to create
a computer parsable Domain-Specific Language for legal documents? Or maybe to
cover a certain subset of legal document types?

~~~
superuser2
Try to create a list of necessary and sufficient conditions for something to
be considered fraud, without invoking the concept of _reasonable_ or relying
on the contents of the alleged perpetrator's mind.

Human judgement turns out to be pretty important in deciding whether or not
something is a crime. That judgement is influenced by argument, guided by
precedent, and reviewable by higher authorities, but it is ultimately
judgement. It's somewhere between _very, very hard_ and impossible to write
laws that catch the edge cases without ensnaring innocent people or being
subject to human interpretation.

~~~
IanCal
While true, I think there could be significant merit in defining one where no
complex decision is made by a machine at all. When trying to read these legal
documents I struggle a bit with holding all the various bits in my head, a
section only applies if A and B are true, and C is over 16, but not if ...

Those same definitions will be used several times. Could they be extracted
out? Could we have something that we're able to turn into a series of
questions that a lay person could have at least a crack at? I've seen some of
those done for tax law in the UK and it really simplifies things (although
these are made manually).

Basically, keep humans making those decisions of what is malicious or wilful,
and have the law written in such a way as to allow (but not require) a
computer to take and combine those decisions.

------
codingdave
While I'm certain there will be areas of concern, I'm unclear how we are
supposed to intelligently send our concerns along if the text of the agreement
will not be available for 30 days. We'll look like idiots if we start quoting
language from a 2 month old leak if that language was not in the final
agreement.

~~~
latj
Instead of telling Washington about my dissatisfaction I've decided I'm going
to piss in the ocean. I suspect the outcome will be the same, except it feels
so great to piss in the ocean.

~~~
quikoa
With that attitude that will be the expected outcome indeed. SOPA was after
enough resistance from the public successfully repealed. This can be done
again.

~~~
ryandrake
What money started, patience will finish. Unpopular legislation needs only be
proposed again and again until it passes. Corporations (who cannot die) always
have time on their side.

~~~
oldmanjay
Corporations dissolve all the time. Do you have something else in mind when
you say they cannot die?

------
hackuser
Paul Krugman's take from March:

 _I’d argue that it’s implausible to claim that TPP could add more than a
fraction of one percent to the incomes of the nations involved; even the 0.5
percent suggested by Petri et al looks high to me.

These gains aren’t nothing, but we’re not talking about a world-shaking deal
here.

So why do some parties want this deal so much? Because as with many “trade”
deals in recent years, the intellectual property aspects are more important
than the trade aspects. Leaked documents suggest that the US is trying to get
radically enhanced protection for patents and copyrights; this is largely
about Hollywood and pharma rather than conventional exporters._

[http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-
nabe/](http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/)

------
hodwik
They're really hurting themselves with this legislation, I for one welcome it.

If pirating Beyoncé will put you in jail, more people will be willing to
listen to all of the great free music on sites like bandcamp and soundcloud.

That's the major benefit to this legislation as I see it. Overpriced pop media
garbage will become decreasingly popular in exchange for better but less-
popular works. As recording and film companies see large swathes of the
population leaving their works for independent producers, they'll lower their
prices to try to stay relevant.

I say this even as a frequent media pirate -- this is not the end of the
world, far from it. If this legislation has teeth, it will birth a new world
of free creativity, of the people and for the people.

Edit: The same, I propose, will be true of opensource hardware.

~~~
bad_user
I think you're going to be disappointed about the future. Given I need music
to keep focused at work, I got a subscription to Google Play. Now I've got
access to all the Beyonce I need for $10 / month. It kind of sucks because my
desktop is not capable of caching music for offline use, only my Android can.
Plus, if I end my subscription, I get to keep nothing. It's a great way to
discover new music though. And I don't like SoundCloud because the signal to
noise ratio is not that good and I don't have the patience.

My point is that the notion of buying songs and albums is coming to an end. I
personally don't like it, but there you have it. And sorry to say it, but for
this future in which we _rent_ music, I also blame piracy. I also think ad-
blockers will be the catalyst for a similarly dark future for websites.

The underlying cause is always people illegally using and not willing to pay
for other people's work.

~~~
shkkmo
> for this future in which we rent music, I also blame piracy

Um, how? Why not blame high-speed internet instead?

------
thedangler
This makes me think that it would be nice to have two passwords for your
device. One to access it, and one to erase the device and go back to default
settings. Unless that is illegal too.

~~~
jdmichal
That would be called tampering with evidence, and is very illegal in the
United States. You would likely be able to be charged with that and
obstruction of justice just for giving them the kill-password.

~~~
archimedespi
But there's always plausible deniability :)

~~~
jdmichal
Good luck on plausible deniability when they have your device, enter the
password that you told them, and see the device factory reset. The fun part
is, regardless of whether or not the device held incriminating evidence, the
act of clearing it is _still_ illegal.

Even if you cleared the device _before_ it was taken into custody, they could
still have a case if they can reasonably show that you cleared it with
suspicion that it would be taken into custody. Obviously, that can be
difficult to show, depending on the burden of proof required.

~~~
hardwaresofton
Maybe this is relevant here, district court recently found that forcing
suspects to reveal their phone passwords is forced self incrimination:

[http://arstechnica.com/tech-policy/2015/09/forcing-
suspects-...](http://arstechnica.com/tech-policy/2015/09/forcing-suspects-to-
reveal-phone-passwords-is-unconstitutional-court-says/)

(but they might just have you enter them yourself instead :/)

~~~
jdmichal
Forcing, yes. But they can still ask, and handing out a kill-password upon
them asking would be tampering.

~~~
hardwaresofton
Oh absolutely agree with the point that was made above -- just saw this story
recently and thought it was relevant.

------
danharaj
The incumbent powers will say that this promotes a lot of freedom and a lot of
rights. Free trade, free markets, freedom, freedom, freedom. Property rights
are individual rights! You don't want to be a dirty socialist, do you?
Property rights are the underpinning of all freedom. If you refuse to
strengthen them, you refuse to strengthen liberty, you monster!

Here we see property rights being strengthened to the point of undermining
popular sovereignty! How can they be called rights when the stronger they are
and the more aggressively they are enforced the more authoritarian the world
feels?

~~~
noonespecial
All this is true. The sneaky thing they are doing is to quietly define more
and more of the things you pay for to no longer be your property.

------
hijjjdbind
The only effective protest would be mass coordinated breaking and flaunting of
these laws if TPP gets passed.

------
ck2
If you think they would never hassle people over this stuff, let me remind you
that every day the TSA holds people without the ability to contact a lawyer.

------
nerdcity
Who fights for the User?

~~~
gnaritas
Tron.

------
pc2g4d
A little early to freak out, don't you think, EFF? Sure, there was some nasty
crap in the leaked text, but what's going to actually be debated and
potentially passed as law is the text that was agreed in the wee hours of the
morning and isn't available yet. Some things in the negotiations seem to have
actually gone against the U.S. IP approach, e.g. biologics protection term. To
me it seems wiser to wait until the final text is out before deciding
whether/in what ways to oppose it.

------
tosseraccount
Any free market policies being proposed for lawyers and doctors?

------
PSeitz
Not everyone has a twitter account, and not everyone wants one.

------
ranprieur
You can't be betrayed if you weren't promised anything. Users simply have no
power inside the system.

------
spacemanmatt
We are all Chinese, now.

~~~
vacri
I was thinking more "We are all American, now". China isn't in the TPP.
However, the US is pushing a lot of it's IP law.

~~~
Maken
Oceania versus Eastasia. Does it really matter?

~~~
josho
For those that down voted the above is a reference to Orwell's 1984 where big
brother watches us all and the above nations are in perpetual conflict to keep
the population in line. In light of my understanding of some of the TPP
provisions I thought it was an apt reference.

------
narrator
Music, entertainment, simple generic drugs and many other things are being
made too inexpensive thanks to technology and globalization. I think these
trade deals are attempts to put that genie back in the bottle and increase the
price through extension of artificial rights and enforcement of criminal
penalties against violators.

~~~
waqf
There's a big difference between drugs (which did legitimately cost someone at
some point many millions to research and prove effective and safe) and music
(which anyone with a modicum of talent can make in their garage and which
costs millions only to market).

As a corollary, get your music from people with no marketing budget. They'll
be forced to charge what it actually costs.

~~~
montecarl
Regarding drug cost and development, I wonder what the drug market would look
like without patent law? Right now, and for the foreseeable future, drug R&D
is expensive. If companies could not patent their drugs they would not make
enough money off their product to be profitable. What would this do to the
market?

One possible way it would work is that all drug development would be done by
non-profits and government sponsored labs. Then drug R&D would be paid for
directly by the people who want the drugs upfront and anyone could produce
them. The final cost of drugs would be just a markup on the manufacturing
cost.

The alternative is that people would not develop drugs, but I find it hard to
believe that this would be the case.

