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TPP final negotiated text – IP chapter (wikileaks.org)
265 points by playhard on Oct 9, 2015 | hide | past | favorite | 69 comments

The whole TPP should be dumped for good. Make sure to put pressure on your representatives. Copyright term increase is enough of a reason. And of course the usual anti-circumvention garbage, which forbids breaking DRM even for non infringing purposes.

> Each Party shall provide that a violation of a measure implementing this paragraph is independent of any infringement that might occur under the Party’s law on copyright and related rights.

(See Article QQ.G.10: {Technological Protection Measures}). Same usual nasty stuff which mirrors DMCA-1201.

The worst part is, that this stuff in TPP will make it much harder to repeal DMCA-1201 or to decrease copyright term in US, since DRM lobby will scream "We can't violate our international obligations!" (of course omitting the fact that they imposed those obligations on everyone without any democratic process). It's really sick that there exists this alternative legislative power which has no oversight and therefore is simply prone to corruption.

Yeah, its basically enshrining the worst parts of US IP law in an international agreement.

The President of the United States is the only person in the U.S. government that can sign and negotiate treaties. It is one of the few powers that the Constitution grants the President (Article II, Section 2). Congress has no role in the treaty process except that the Senate must be notified in the event the President has made a sole-executive agreement.

The democratic process is working, you are just misinformed. The only person you should be blaming is the President.

> The President of the United States is the only person in the U.S. government that can sign and negotiate treaties.

So far so good.

> Congress has no role in the treaty process except that the Senate must be notified in the event the President has made a sole-executive agreement.

Quite wrong. Go reread article II: the President's treaty-making power is subject to the "advice and consent" of the Senate. What that means is that the President can negotiate and sign all the treaties he wants, but none of them have force of law until the Senate gives its consent, expressed through a supermajority approval.

Sole executive agreements -- which are not exercises of the treaty power -- are limited in scope to things the President would be, with or without dealing with another state, empowered to do through executive action.

Of course, just because something is negotiated like a treaty doesn't mean it is a treaty. It can instead be, in effect, a sole executive agreement to seek a particular change in domestic law, which is then effectuated through a normal law, rather than treaty ratification. Which is, actually, how many trade agreements, including TPP (and, earlier, among others, NAFTA) work. Its why "Fast track" authority is a big deal, because it effects the rules in Congress for considering laws which are implementations of such trade deals.

> The democratic process is working, you are just misinformed. The only person you should be blaming is the President.

That's a little too quick.

1. You're overlooking the Senate's constitutional "advise and consent" role in the formal treaty-making process. (Art II, s. 2, para. 2) This is typically understood to require the Senate to adopt a resolution of ratification with a two-thirds majority. Even for a executive agreement which require acts beyond the president's legal competence, the Senate is required to enact implementing legislation.

2. Just because the process is Constitutional doesn't mean it is democratic. It is at least possible (and certainly not impossible by definition!) that the U.S. has some lawmaking processes that are not democratic.

That's not true in this case. Like most trade deals, this one is through congressional-executive agreements. That means Congress will get an up or down vote for the deal.

All treaties have to be approved by the Senate. They just voted this time to approve a special "fast track" for TPP, which gives it a strict up or down vote in the Senate while waiving their right to amend the treaty or add attachments.

From the section you referenced:

"He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

I think that your claim that the only role of the Senate is that it "must be notified in the event the President has made a sole-executive agreement" is a misrepresentation. In fact, the Senate must vote to approve every potential treaty before it becomes valid.

"Article QQ.H.7: {Criminal Procedures and Penalties}"

"Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:"

"(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace 135,136."

"135 It is understood that a Party may comply with subparagraph (b) by addressing such significant acts under its criminal procedures and penalties for non-authorized uses of protected works, performances and phonograms" (All emphasis Ed.) "in its domestic law."

Does it mean the law is going to be:

Sing a song on the birthday party, don't pay the copyright => you are a criminal?

What are actually the "significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace"?

An interesting discussion: http://www.justinhughes.net/IPSC2009/pdf/Saw-Cheng.pdf

According to that paper, such language isn't new. Australia (Copyright Act 1968), Singapore (Copyright Act 1987), and the US (Copyright Act 1976 as amended by No Electronic Theft Act 1997) provide criminal penalties for prejudicial infringements even though they may not result in financial gain or commercial advantage.

Compare the UK (CDPA 1988) and the EU (IPRED2 2005), which generally exempt non-commercial infringements from criminal liability.

It does say "on a commercial scale", so it has to be big. However, I think using bittorrent counts since you are offering to upload the file to anyone on the internet who asks for it. Just singing it at a single private party wouldn't be included, but a restaurant chain singing it for every birthday party would.

Not sure what "prejudicial impact" means, but it's probably something that would keep people from buying the copyrighted version.

so it has to be big

I think you're putting too much faith in the usual meaning of words. Think about the wording of the US Constitution's 2nd Amendment (or 4th Amendment) and how different the legal meaning is from what someone who isn't a lawyer would expect.

I bet that "commercial scale" is "at least on the scale of that guy selling knock-off Nikes out the back of his van" after we make it through the courts.

Technically, "commercial scale" can mean anything from "someone somehow made money while doing it" (e.g. from ads to pay for hosting) all the way to "how someone doing it for money might do it" (e.g. using a proxy or fake contact details). It's intentionally vague.

This section specifically says "not carried out for commercial advantage or financial gain", so it doesn't apply to people who actually make money from this. I don't know what section that's covered in though.

Commerce happens on all scales, therefore "commercial scale" could apply at all scales.

When the the practical implementation of a law does not align with the meaning of the words in the law, we all lose.

This is doubly so with a proposed law, where the implementation can easily change to reflect what the words do mean.

"Shall not be infringed"

Here, pay this money, register here, sign this, don't do that, pay this other fee, and if you do this other thing, you will go to prison. Also, options C through Z are banned, only options A and B are allowed. But we don't consider this infringing a basic right.

Basically, if voting rights were treated like gun rights, Jim Crow era discrimination would pale in comparison.

I full expect the government to twist the wording of this law as well.

QQ.H.7(1)(b) would seem to be in place to cover large-scale file sharing that is not done for commercial gain.

At least we have this referring to (b):

> 136 A Party may provide that the volume and value of any infringing items may be taken into account in determining whether the act has a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.

So if your lawmakers are sane (...) you're likely safe singing Happy Birthday.

The true problem with (a) comes in regards to fan-made works that are not clearly reviews or parodies, and are thus not under international standards of fair use.

For instance, there's Japan's dojinshi market, valued at US$588mm/yr, in which it is common for creators of astonishingly professional-quality arrangements of copyrighted video game/anime music (among other things) to charge money for limited runs of physical albums. There's no doubt that allowing this to be commercial allows higher-quality productions to be made, and more people to use this as a way to practice their creative skills... this is true of any creative industry.

There's a real fear that Japan's hand may be forced, if they accept the TPP, to criminalize and prosecute this marketplace, even though right now it is considered a crime that can only be prosecuted if the victim files charges. For if they don't make and enforce such a law, they'd be in violation of the broader treaty.

For more context, see: https://www.animenewsnetwork.com/interest/2015-05-21/japanes...

And lest we think this is limited to Japan, consider that any unlicensed cover bands that charge for gigs anywhere in the world, or sell a demo CD, would be considered criminals. And minimum sentencing does indeed exist in the United States...


In Part 6 of that section:

  (a) penalties that include sentences of imprisonment as 
      well as monetary fines sufficiently high to provide 
      a deterrent to future acts of infringement, 
      consistently with the level of penalties applied 
      for crimes of a corresponding gravity

  (g) that its competent authorities may act upon their own      
      initiative to initiate a legal action without the need 
      for a formal complaint by a private party or right holder

It doesn't specify what the penalty must be, however (does it?). For example, US Code, in the criminal section (506) it says:

    (d) Fraudulent Removal of Copyright Notice. — 
    Any person who, with fraudulent intent, removes or
    alters any notice of copyright appearing on a copy
    of a copyrighted work shall be fined not more than $2,500.
They could make singing the wrong song a $20 penalty and presumably still comply with the treaty.

Consider how bad the sex offenders registry is. Now consider that that isn't even a criminal punishment (which is why it can be retroactively applied and extended, which a criminal punishment cannot be).

So it could work out to a nothing fine and all is well, but I would highly doubt it ending up as such.

A $20 fine and a criminal record, which as I understand it is something you _really_ don't want.

You don't want a felony record, but there are classes below that, including "infraction" which for the most part doesn't count.

In New Zealand, http://www.stuff.co.nz/business/industries/72854916/sky-tv-i...

"Internet users and Sky Television want to know if it will become a criminal offence to get around blocks on overseas online television services ... not sure whether that meant criminal penalties for people who used Virtual Private Networks (VPNs) to disguise their location and access online services that were supposed to be "geo-blocked" in New Zealand, such as the US version of Netflix.

Legal experts have said it is a grey area whether the use of anti-geo-blocking services to access overseas TV services currently breached civil law. Sources said the answer to that question could determine whether the Government might be empowered to make an exemption relating to VPNs, or whether their use to access overseas online television services would now need to become a criminal offence."

Only thing I can think of is operating a website that allows the uploading and sharing of copyrighted material with no protection or discretion (Mega*). Or creating something like a Napster, or a Grooveshark, maybe.

Seems like it's intentionally written to be vague to be applied to many things

This definitely feels like a political end run, going back on humanitarian progress we've recently made such as on generic drugs. Treaties as a way around that pesky will-of-the-people thing. "Oh we can't go back on that, we signed a treaty. Sorry about your justified outrage."

Sounds really dangerous:


"Marketing exclusivity for new forms and uses of old medicines could be considered a form of evergreening. Since marketing exclusivity applies regardless of the patent status of a drug, even off-patent medicines presented in the forms and uses described below would not have a generic competitor."

Yes, I don't think it's any exaggeration when they say that the TPP agreement will kill people. Medicine vital to survival will be priced out of reach of some of the less fortunate, and some of them will die. This bill is not safe for public consumption.

My hope is that this particular issue will be bigger than they thought it would be due to the recent price issues around Daraprim (from $13.50 a pill to $750).

It won't just kill people on the Pharma side.

It will also kill people on the Corporate externality side with its Corporate Sovereignty provisions [0]

Suppose TPP-Protected Corporation XYZ moves its manufacturing to Town F in impoverished country ABC. This is allowed because, look at all the jobs XYZ creates! XYZ finds it much cheaper to dump excess waste products into the local river. Many citizens of Town F die from the numerous poisons it dumps in the river. Local Government of Town F would like to stop XYZ's pollution, but XYZ is now allowed to override local laws and take Country ABC to a private tribunal to "deal" with the pesky citizens complaining about dying.

[0] https://www.techdirt.com/articles/20150325/17151130431/corpo...

You can always decide to exit a treaty. If enough people voted in representatives willing to exit the treaty it would be done.

The TPP isn't a real treaty as that requires a 2/3 vote in the Senate its what's known as a trade promotion authority.

Constitutional amendments trump treaties. If anything is found to be unconstitutional in the treaty by SCOTUS, then the treaty may need to be broken.

All of your points amount to equivocation.

True, the US can decide to exit a treaty. How likely is that, in this case? Not very.

TPP is not a real treaty, but it carries the force of a treaty.

Is the SCOTUS likely to find something unconstitutional? Again, it's true that SCOTUS could dump the TPP, but I think it's highly unlikely, given court's deference to intent of legislation, will of the legislators,etc etc.

The TPP just reeks not only of end-run around the will of the people, but manufactured consent as well.

I'm not trying to argue that the TPP isn't bad. It is. Nor am I trying to conceal the truth on anything regarding the mechanisms of government. I just wanted to state that there are ways to control the TPP should it get voted in.

Spoken like a true gentleman. But your points needed rebuttal, so that consent isn't further manufactured, at least.

Criminal penalties agreed upon at the international level basically cede national sovereignty to the "collective" of nations. The individual has nearly no recourse against such crimes, since an appeal would need to go to Congress to change the terms of the treaty.

I think this is the core of the discussion to be had, not just about this treaty but other treaties/TPA's and the general direction of the geostrategic goals of the United States. It's all about national sovereignty, and while I understand the arguments for a reduction of it and an increase in globalism (teetering towards world government), my main issue is that I don't understand how people who have sworn an oath to protect and the defend the constitution can turn around and undermine it, especially without having first had the discussion with the American public about their reasons for such pushes.

I suspect the reason they don't bring these issues into the public light is because they rightly predict that the American people would quickly reject the level of blatant globalism that has pervaded the corridors of power in Wall Street, K Street, and DC.

The American Empire is falling apart[1]. Everybody has been distracted with modern technology and the higher standard of living - and complexity - it brings. We have been riding a powerful economic curve for decades, which has kept most people in a "good enough" situation. Revolutions happen when people start to go hungry, and technology and a good-enough economy has prevented that from happening.

Meanwhile, we are starting to see the inevitable consequences of using profit as the sole criteria used when judging societies[2]. I believe this belief system started much earlier, but the Red Scare certainly locked the country into it's fears about anything that wasn't overtly profit-driven. Once the paranoid-style[3] took over, the country has been locked into that course.

So now we have a situation where some people are paranoid about our failing empire and our declining influence. In an effort to preserve what they see as the status quo, they keep trying ever more radical "fixes". The TPP is one such "fix". When you only consider profit, little things like "rule of law" or actually maintaining a functioning society become less important.

This isn't even about "globalism", at least not directly. This is people who see their world crumbling (aka profits are down). Moving jobs around only happens if it's profitable. You could call it a giant bust out[4], except it's our government that's being looted.

> I don't understand how people who have sworn an oath to protect and the defend the constitution can turn around and undermine it

"Everyone has their price."[5]

Organized and well-funded groups like ALEC[6] have been hard at work offering bribes with pre-written bills attached. I wish Lawrence Lessig luck in his quest[7] to fix the corruption issue, but it is going to take a lot more people joining his fight before it can accomplish anything.


[1] If anybody doubts this, I suggest listening to this talk by Lawrence Wilkerson (Colin Powell's former chief of staff): https://www.youtube.com/watch?v=ckjY-FW7-dc

[2] https://www.youtube.com/watch?v=DNttT7hDKsk (abridged written version of that talk: http://www.theguardian.com/world/2013/dec/08/david-simon-cap... )

[3] https://en.wikipedia.org/wiki/The_Paranoid_Style_in_American...

[4] http://www.huffingtonpost.com/2012/05/24/bain-capital-tony-s...

[5] https://en.wikipedia.org/wiki/The_Magic_Christian_%28film%29

[6] http://billmoyers.com/episode/united-states-of-alec-a-follow...

[7] https://www.youtube.com/watch?v=D3O1MC1AqvM

Same way the Constitution was undermined by obscenity clauses, gun control, voting restriction, and a host of other things.

It doesn't make sense for Americans to oppose this treaty. We already live under most of these IP rules with no hope of relaxing them. Extending these profit protections to other countries will mainly benefit American companies and improve our economy.

They aren't American companies, they're multi-nationals, and will keep the money in a tax haven to avoid paying US taxes on it. And this isn't a prediction, this is what is happening RIGHT NOW.

It won't help the US economy one iota, and if you push this dysfunctional nonsense out internationally you have gone from "almost no chance of reform" to "absolutely no chance of reform."

They can hide profits from taxes but they still create jobs and spend money here.

liberal copyright laws create jobs. This is the opposite of that. It's big corporations securing profits and making sure there will be no competition.

My point is that we're not getting liberal copyright laws here. At least this helps our economy.

> At least this helps our economy.

please explain how.

Companies do not create jobs. Demand creates jobs.

1) Simply because we can't save ourselves doesn't mean we should willing inflict it on other people.

2) There is always the hope, however small, that we'd be able to do it domestically. With an international agreement of this scale, it would truly be impossible.

Your argument justifies that it doesn't make sense for immoral Americans to oppose this treaty. Fortunately not all Americans are immoral.

Yes. Americans are fortunate to have arbiters of morality such as yourself to draw these conclusions for them.

First of all, we still don't know the whole text of the treaty, actually being treated as a trade promotion authority, so how can you at all make that statement without further knowledge of what the treaty contains?

Second, there are plenty of reasons to oppose this treaty that have nothing to do with this particular IP chapter, but even if we are judging the treaty based of this single chapter it would still be enough to oppose it due to the unaccountability it implements and the restriction of electronic freedom it pushes. The DMCA was bad enough, but to make it worse and then push it on other countries under the false premise that it would push up those countries is ridiculous. If anything, our broken IP system has hindered our growth, not helped it.

You have a better chance of reforming bad laws if other countries have better one that can be pointed to. When bad laws are pushed onto other countries then they become the 'standard' and you have less chance of getting them reformed.

> It doesn't make sense for Americans to oppose this treaty. We already live under most of these IP rules with no hope of relaxing them.

We need to push to change these laws. Such treaties make it harder, to they should be opposed. Besides, if they are bad, you should be opposed to spread them to others.

I think this perspective needs to be expanded on (thank you btw). I'd like to see a couple IP experts 'debate' the issue and the implications of its facets.

You can start by reading everything written about the DMCA, SOPA, PIPA, ACTA, and TPP over the last many years. There is nothing to be expanded upon; just do some research and you'll find all the arguments you need.

Good point. It would be better to argue with this kind of arguments.

Business method patents are back. Software is clearly patentable.

Article QQ.E.1: {Patentable Subject matter}

1. Subject to paragraphs 3 and 4, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application.

Oh, I didn't realize the significance of the waiting period in Canada! Although from what I've heard, this won't change anyone's mind about Harper.

No, but it will make a huge difference choosing between Trudeau & Mulcair. Mulcair is unequivocably against the TPP, Trudeau said he'll "thoroughly examine" it.

>Trudeau said he'll "thoroughly examine" it.

The cynical side of me thinks that his constituents don't support the TPP, but he doesn't want to upset his donors by not passing it. So he's using weasel words to make it look like he's against it, but after the election (if he wins) he's going to pass it.

Um, are you sure anyone is unequivocally against it? I literally just saw an email from the NDP containing this:

> For all these reasons, the NDP will not uncritically accept the TPP agreement that was negotiated by Stephen Harper in secret and which could re-write many laws against the interests of Canadians.

> We will push for a full review of the details of this agreement. We will consult Canadians and stakeholders. We will measure it against the needs of Canadian families and communities, and test it against the long-term interests of Canada.

> Only Tom Mulcair will give this agreement the scrutiny it needs. Only Tom Mulcair will fight for our jobs, our families and our communities and stand up to a wrongly-negotiated trade deal.

> Thank you again for your interest.

> All the best,

> Canada's New Democrats | Le NPD du Canada

I think Trudeau's response is better since the full, final text of the agreement hasn't been released, and I'm sure Harper isn't sharing it with them.

№ 6: The whole Earth, as The Village?

№ 2: That is my hope. What’s yours?

№ 6: I’d like to be the first man on the moon.

— № 2 & № 6, The Prisoner, The Chimes of Big Ben, 1967

The conversation I quoted occurs in part 2:


How delightfully relevant -- is the content legitimately licensed to be reproduced on Youtube by its owner? It's certainly not old enough for its copyright to have expired.

> is the content legitimately licensed to be reproduced on Youtube by its owner?

I sincerely doubt it, which is why I didn’t (and generally don’t) link to such things on YouTube – they get removed and the link goes stale. But when walterbell made one link to the start of the episode I thought I’d make a link directly to the part I quoted, so people wouldn’t have to search for it.

The full series is also available at http://www.dailymotion.com/video/x26w64y_the-prisoner-e02-th... in HD.

Apparently the owners have not (yet?) requested a DMCA takedown.

When you break rules, break ‘em good and hard.

Wyrd Sisters, Terry Pratchett



Thanks! So much of that series remains relevant.

The final TPP text includes similar ex-officio language to a TPP draft reviewed in a 2013 analysis of fanzine impact, by a Japanese lawyer, http://japanitlaw.blogspot.com/2013/01/tpps-effect-on-fanzin..., "in practice, it is rare for the police to commence an investigation without a complaint by the rights holder. However, this situation may change. The draft of the request of the US on Trans Pacific Partnership (TPP) 15.5(g) stipulates, "its authorities may initiate legal action ex officio with respect to the offenses described in this Chapter, without the need for a formal complaint by a private party or rights holder."

We need these texts in a git repo with diffs. In QQ.H.7 below, the text is modified:

  2011: its authorities may initiate legal action ex-officio 
        with respect to the offenses described in this Chapter

  2015: its competent authorities may act upon their 
        own initiative to initiate a legal action
The final text:

  QQ.H.6 Special Requirements related to Border Measures

  6. Each Party shall provide that its competent  
  authorities may initiate border measures 
  ex officio with respect to goods under customs
  control that are:  

  (a) imported; 
  (b) destined for export; or 
  (c) in-transit   

  and that are suspected of being counterfeit 
  trademark goods, or pirated copyright goods.

  ... A Party may exclude from the application 
  of this Article small quantities of goods of a 
  non-commercial nature contained in travelers' 
  personal luggage.

  QQ.H.7 Criminal Procedures and Penalties

  6. (g) that its competent authorities may act upon 
  their own initiative to initiate a legal action 
  without the need for a formal complaint by a 
  private party or right holder
From http://www.freezenet.ca/an-analysis-of-the-latest-tpp-leak/

"Parsing through the language here, it sounds like if the government chooses to, they may elect to make an exception for your cell phone, but the agreement does not prohibit this kind of activity. Even then, even if the government thinks that seizing and destroying your cell phone on the basis of copyright infringement is absurd, they can only say that your cell phone has to be in your luggage. For many travelers, they would prefer to have their cell phone on their person as opposed to buried in their luggage in, say, the undercarriage of a plane. When they land on the other side, it’s not unreasonable for them to want to call someone to let them know that they have arrived. If a traveler is driving across a border, it is definitely a common thing for passengers to be carrying a cell phone on their person as well. So, the risk of authorities seizing and destroying your cellphone on the basis of copyright infringement still stands here."

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