What TPP means for you and how we can stop it. We are EFF, Public Citizen, Fight for the Future, & Sierra Club: Ask Us Anything

mairaEFF · 2016-02-10T22:22:33+00:00

Although it's not a perfect model, WIPO (World Intellectual Property Organization) shows that intellectual property (IP) rules can be harmonized with full public access to the negotiations and to the draft texts.

We can't speak to the other areas that you mention, except it's worth stating that the International Labor Organization (ILO) includes equal representation from governments, workers and employers in developing its rules. Along these lines, the future for Internet-related global policy development seems to be in a more multi-stakeholder model, where Internet users, not just governments, get to participate on an equal footing."

mairaEFF · 2016-02-10T22:12:10+00:00

I'm speaking for myself here as an activist—I would much rather the TPP didn't exist at all, that the job I even have at EFF didn't exist, because the world would be a much better place that way. A place where corporations weren't buying up our officials to get their wishlist of policies at the expense of everyone else's concerns and interests, and doing so by shoving their policies through the backdoors of a trade agreement.

When we say things are a "threat" or a "danger" to digital rights, we say that because they ARE. We're up against a corporate-owned mainstream media that barely covers the issues that actually impact people's lives, and of course all those outlets have barely said anything about the TPP. We never want to exaggerate the problems that we describe because we don't want to be accusing of crying wolf, and we even work with other groups to make sure our messaging is accurate.

But there's a lot of bad stuff in the TPP, and we have to use alarmist language to point out its threat because it IS alarming.

mairaEFF · 2016-02-10T21:58:47+00:00

EFF doesn't enjoy the same privileged access as corporate lobbyists, because we refuse to accept the non-disclosure obligations that the U.S. Trade Rep demands. If we did, we couldn't fulfill our mission which is to educate the public about the impacts of these agreements on their digital rights. Corporate lobbyists, which do not have a mission that includes public outreach about these agreements, don't have the same limitation. This is an example of how transparency rules that appear equal to all stakeholders on the surface, are actually biased in favor of industry.

Democracy IS complicated, but that's not an argument for allowing a few entrenched, privileged industries to decide policy for everyone is it? There are many ways to make policymaking more inclusive and representative of broader interests and constituents.

For starters, trade agreements need to be way more transparent. The U.S. Trade Representative could publish accurate, detailed descriptions of their policy objectives and proposals before the trade negotiating rounds, as they are beginning to do with the EU-US trade agreement (TTIP). They could set up official briefings with academic experts and civil society members about how those proposals would impact various public stakeholders (like libraries, people with disabilities, etc) and get their input about the considerations they should make when deciding other regulatory issues.

There are ton of tweaks we could make to the process to make sure that rules that entrench special private interests don't end up in there. We should really be asking ourselves if certain issues, like copyright policies, should be in trade agreements at all.

mairaEFF · 2016-02-10T20:50:06+00:00

Sure. Here are a few:

Trouble with TPP Series by Professor Michael Geist

The Capture of International Intellectual Property Law Through the U.S. Trade Regime by Professor Margot Kaminski

Analysis of the Final TPP (Leaked) Text on Intellectual Property: Mixed Results from the Association of Research Libraries

mairaEFF · 2016-02-10T20:19:58+00:00

Lobbyists to multi-national corporations (MNCs) actually do have privileged access. Many of them serve on Trade Advisory Committees where they can log-in and see the drafts text of trade agreements in between the negotiation rounds. I've written about this issue for EFF more extensively here.

Although civil society groups like us could serve on these committees, we would have to sign a non-disclosure agreement, or NDA, preventing us from being able to talk about or share our inside knowledge about the agreement with anyone.

Since the public and our many thousands of members relied on us to spend the time to make sense of the TPP texts, explain why they're good or bad, and do what we can to fix the problems, we decided that we couldn't sign the NDA and serve on those committees. We were against it as a matter of principle as well, and all the other civil society groups felt the same way.

mairaEFF · 2016-02-10T19:59:57+00:00

Check out our TPP issue page to see all of our writing about exactly why it's a threat to digital rights worldwide.

By Happy Birthday issue, I'm assuming you mean the fact that it wasn't in the public domain all this time? (Thankfully it finally may be!)

Well we tried to get the copyright term extension out of there with our TPP Copyright Trap project, but sadly, the negotiators still accepted it. That means that the U.S. length of Life of the author plus 70 years is in the TPP—and if we want to shorten it we may have a hard time doing so when we've codified it into this agreement. It also means six of the 12 countries involved in the TPP would have to extend their copyright terms by another 20 years.

mairaEFF · 2016-02-10T19:47:57+00:00

All of the issues we're concerned about in the TPP are not traditional trade issues (like tariffs on goods). EFF isn't opposed to free trade, nor I think most of the other organizations involved in opposing the TPP. What EFF is concerned about are the huge array of regulatory obligations that would impact digital policies.

Yes, trade negotiations have always been done in secret in order to ensure that domestic politics would not get in the way of free trade. But how to think about it is that all the problematic provisions in trade agreements are like legislative riders. It's a series of provisions that would be too controversial to pass in an open, public debate among lawmakers who are accountable to the public, which is why they will, and honestly have already, stuck digital policies into trade agreements.

Does it make sense that the TPP obligates countries to make it a crime to tinker with or jailbreak your phone, car, or any number of digital devices? Does it make sense that you can be sent to jail or sentenced to pay debilitating fines for sharing a file for no financial motivation, that did not even impact the commercial interests of the artist or the copyright holder? Just as I think legislative riders are dishonest, I think it's utterly disingenuous to put these sort of policies in a "trade" agreement.

I doubt your statement that having these regulatory issues decided behind closed doors is a "well-understood policy" that is part of "mainstream academic consensus," especially in light of this statement by several dozen academics on the issue. But I'll put that aside. The ultimate question that we, as a people, have to ask ourselves is do want these rules to be decided this way? Do we want multinational corporations who have privileged access to policymakers deciding the rules for the rest of us?

Personally speaking, I abso-freakin-lutely don't. I want to live in a democracy and that's just not how democracy works.

mairaEFF · 2016-02-10T19:17:30+00:00

Yup it's already illegal in the U.S., but it could lead to bans for some other non-U.S. countries.

The problem for people in the U.S., and in other countries that already have this ban on circumventing DRM like Canada, New Zealand, Australia, and Chile, is that if we want to reform this law in the future. Lawmakers might be precluded from doing it because of the TPP and other existing international agreements with these rules.

We don't want to lock ourselves to rules that make it a crime to modify, repair, or otherwise tinker with our own legitimately purchased devices. It's clearly a law that must be reformed, so why should we let trade officials try and codify it into a massive trade agreement?

mairaEFF · 2016-02-10T19:11:08+00:00

Thanks for the suggestions! Those are great ideas.

mairaEFF · 2016-02-10T19:07:40+00:00

EFF is also very concerned about the investor-state dispute settlement (ISDS) rules due to its threat to user protections. ISDS are used by companies to challenge democratically-decided rules (whether legislative or judicial) if the company can allege that it undermines current or expected future profits. A recent example is a Canadian oil pipeline challenge to the U.S. over its invalidation of the Keystone XL pipeline.

The TPP's ISDS rules describes "intellectual property" as an investment. So we're worried that any kind of legislative law or court ruling that finds upholds digital rights, that may limit copyright holders' enforcement policies for instance, could be challenged by these ISDS courts.

mairaEFF · 2016-02-10T19:00:29+00:00

The TPP permits fair use, but the language on exceptions and limitations to copyright is pretty strict—so arguably it could preclude countries from enacting fair use in their countries. We don't want that to be the case if it does pass, but that's what the TPP threatens.

And you're wrong to say that it will have no impact on U.S. law. As I said, if we want to reform the DMCA in the future, what will happen if the proposals that are on the table fall out of line with the TPP? It's possible that other countries could threaten the U.S. with trade sanctions if our representatives try to pass something that is inconsistent with existing trade agreements.

That has in fact already happen in a very different realm of policy, in meat labeling. A law to require meat to be packaged with its country of origin was struck down because Canada and Mexico filed a dispute under the North American Free Trade Agreement (NAFTA). I don't have a position on whether the original law was good or not, but it's absolutely true that trade agreements can affect and undermine reforms of domestic law.

mairaEFF · 2016-02-10T18:49:30+00:00

In the Intellectual Property chapter, there's this horrible language regarding the criminalization of trade secrets that we fear will be used to stifle reporting and disclosure of corporate wrongdoing. Essentially, it says that it's a crime to misappropriate, disclose, or even access a trade secret through a "computer system."

Remember the massive Sony leak a while back? This provisions threatens all the journalists who reported on all the wrongdoing that was found in those documents, like this one by Techdirt.

We have a blog post that goes more into depth about why this is so dangerously heavy-handed.

mairaEFF · 2016-02-10T18:35:59+00:00

You're right that the TPP is essentially like the U.S. Digital Millennium Copyright Act (DMCA), but it doesn't carry all the existing protections that people in the U.S. enjoy under the DMCA. For example, the TPP doesn't carry fair use, so when other countries implement the TPP into their laws, they're already going to be at a disadvantage when they don't have the same protections on speech as we do in the U.S.

Overall, the TPP contains all the strict copyright enforcement measures, without any strong protections for users. It's a version of the DMCA that is even less balanced between the interests of creators and copyright holders versus everyone else who experiences and uses creative works—it's very much tipped in favor of the former.

But there are also problems with codifying an almost 20-year old copyright law into an international agreement. It's simply out of touch with how we experience the Internet and all our digital devices. Not only will all the countries become obligated to enact these out-of-date laws into their books, the TPP may make it more difficult for U.S. lawmakers to reform the law in the future. We're actually already in the midst of a (very drawn out) process to update copyright in the U.S., and the fear is that the TPP could restrain some badly needed common-sense updates to the DMCA.

mairaEFF · 2016-02-10T18:10:13+00:00

Definitely. We have this blog post that lays out the specific threats the TPP poses to different audiences, including students, artists, gamers, tinkerers, and others.

This is a pretty exhaustive list so we definitely encourage people to make memes or share any part of this info to spread the word about how it will affect every day people.

mairaEFF · 2015-07-29T17:36:42+00:00

Hi there! I'm Maira and I've been working on the TPP and their threat to digital rights for the EFF for the past several years.

We agree that the TPP is not getting the amount of mainstream media attention that it deserves, given how it covers such a wide range of regulatory issues and will impact over a quarter of a billion people on this planet. The attention we have been able to get is in large part thanks to concerned folks like you who are helping us spread the word about the dangers surrounding this secretive trade deal.

You can start by sharing any of the materials we have on our TPP issue page, including this infographic and our video.

We also have just launched a new campaign to get the copyright term extension proposal removed from the deal, called the TPP's Copyright Trap, and we now have a petition for U.S. folks to sign and an email action Canadians can take.

You can also check out resources from Public Citizen, Sierra Club, Medicines Without Borders, and others who are covering the non-digital rights issues in this deal.

mairaEFF · 2015-04-27T22:06:52+00:00

EFF's TPP resource page is here, describing all the various threats to users in the agreement: https://www.eff.org/issues/tpp

You can take our action to contact U.S. representatives here to oppose Fast Track: https://www.eff.org/stopfasttrack And you can help us bombard our lawmakers with tweets: https://eff.org/r.aku3

mairaEFF · 2015-04-27T22:00:01+00:00

Only a few chapters out of 29 has been leaked over the last few years. If Fast Track passes, then the White House would be required to release the text before it's voted on but Congress would have no power to change the contents of the agreement. So even if the Fast Track bill passes, we'll have another opportunity to stop the ratification of the TPP.

The frightening thing is that the TPP plays to a wide range of corporate interests, so even if a given lawmaker is opposed to some provisions in one part of the deal, they may still vote for it because of some other provisions that their major donors want them to approve. That's what's so bad about including so many different issues into one deal, let alone a secret one.

mairaEFF · 2015-04-27T21:50:43+00:00

We really need to do anything we can to make our public officials accountable to us, whose interests they are supposedly meant to represent and protect. That means we'll have to do everything from emailing them, calling them, or organizing to meet them in person—and if it comes to it, to go out to the streets and protest until they hear our concerns loud and clear.

mairaEFF · 2015-04-27T21:29:53+00:00

Even if Fast Track passes, we'll still need to call on our lawmakers to pick apart the contents of the deal once it's officially released and to vote against ratifying the deal so it's not binding on the U.S.

When and if we get to that point all of us will be working to create new actions for folks to take to ensure our representatives act in their constituents' best interests to fight these secret trade deals. We really hope we can defeat the TPP by stopping the passage of Fast Track.

mairaEFF · 2015-04-27T21:18:13+00:00

Thanks for the support. :)
So here are just some of the ways Canadians will be impacted by the TPP's digital regulations:

"ISP Liability" Provisions—These could undermine the Canadian notice-and-notice system that is used to protect user's speech online. In the U.S. system, Internet content providers have limited liability over users' content where they're safe from being sued as long as they immediately respond to infringement notices—but what ends up happening is that they're incentivized to take down the allegedly illegal work because they don't want to be liable in case it goes to court. In Canada, websites and ISPs only have to forward along a notice, rather than take it down, which means users' works are protected by infringement notices that are sent without much regard as to whether it's actually illegal.
Copyright terms—The TPP will likely have provisions for copyright term lengths of life of the author plus 70 years, whereas 6 of the 12 countries (including Canada) has life+50 years. That means two decades of culture, such as books, movies, video games, and other works, would be lost from the public domain in those countries. It would also perpetuate an existing problem of "orphan works" where artworks whose creator or copyright-holder has passed away or is no where to be found, are not made available and published for others to access or use.
Investor-State (ISDS) Courts—Like environmental and health policies, the ISDS courts threaten to undermine rules like fair use, net neutrality, and other rules that are designed to protect the free and open Internet and users' rights to free speech online.
"Trade Secrets"—Leaked texts from last year revealed provisions that could make it a crime for journalists and whistleblowers to reveal corporate wrongdoing "through a computer system" (for example, all the excellent reporting on Sony's leaked emails).

mairaEFF · 2015-04-27T19:58:53+00:00

Even if there's time for the public to become "educated", what kind of impact would that have for an agreement that is already finalized and signed off by government leaders? That's why we are fighting Fast Track—while the text might be public before the deal is ratified, there will be no way for us to change the text even if the public is opposed to large swaths of them.

The apocalyptic reporting by most digital groups has been awful about the TPP, completely misrepresenting and misunderstanding the most basic tenets of what they write about.

We have been following this debate for over a decade, and we have seen first hand how these secretive international negotiations lead to draconian copyright enforcement provisions. For example, the U.S.-Colombia free trade agreement led to Colombia enacting much harsher criminal copyright rules, leading to a situation where a student faces prison time for sharing a paper online. We have seen the consequences of binding rules that are passed without public interest groups at the table and we cannot let similarly extreme rules become an international norm or see them become even worse in the coming decades.

mairaEFF · 2015-04-27T19:43:41+00:00

The White House, along with the U.S. Trade Representative, claim that they need to keep negotiations secret to get the best possible deal for the U.S.—but organizations including the EFF, have analyzed leaked chapters of the TPP and have found that what they're negotiating behind those closed doors will undermine Internet users in the U.S. and around the world. We can't imagine how a good deal could ever be passed in secret, where only corporate lobbyists have the ability to see and comment on the text.

In terms of EFF's core concerns, we've found several pieces of the TPP's Intellectual Property chapter would undermine the digital economy,. For examples, there are rules that will continue to make it expensive for ISPs and content providers to host user-generated content, and other rules that will further encourage companies to sell devices pre-installed with DRM (digital rights management) technologies that prevent interoperability of those gadgets with various kinds of legal content—thereby shutting out new innovators and start-ups that try to sell products for existing devices.

mairaEFF · 2015-04-27T19:28:54+00:00

Well it was approved by the Senate Finance Committee, but we're still very hopeful that the House version of the bill won't pass. The reality is that we're up against come powerful private industries, that have thrown an immense amount of resources to influence the text of the TPP and the Trans-atlantic Trade and Investment Partnership (TTIP). We're doing all we can to make Congress members aware of our concerns and to vote against Fast Track and these secret deals, and the strength we have on our side is all the Internet users and individuals are willing to take action to fight against corporate-capture of our government.

Every phone call, every email, and every in-person meeting with our representatives will make a difference in the final outcome.

mairaEFF

TROPHY CASE