The Most Nefarious Part Of The TPP Proposal: Making Copyright Reform Impossible

So with yesterday's revealing of the IP chapter of the TPP, there are plenty of great analyses out there of what's in there, but I wanted to highlight some parts that are the most nefarious and downright slimy in that they represent parties (mainly the US) pretending to do one thing while really doing another. These are tricks pulled by a dishonest, shameful USTR, entirely focused on making his corporate buddies richer at the expense of everyone else. Remember, our current USTR, Michael Froman, has a long history of this kind of crap. While he hasn't been there throughout the negotiating process, it shouldn't be surprising that he "delivers" this sweetheart deal to a few legacy industry players.

Watch closely, and you'll see supporters of TPP, and especially USTR employees, make the claim that nothing or almost nothing in the TPP will require legal changes in the US. They'll say that this is just about "harmonizing" norms across borders to make it easier for businesses to do business internationally. This is a lie.

It's a lie in two different ways. First, there are multiple provisions in here that will absolutely require changes to US law. We'll discuss a few in other posts, but what's much more nefarious and downright obnoxious, is that this would lock in a variety of really bad copyright policies, making it nearly impossible for Congress to go back and change them. And that's a real issue, because, as we've been discussing, Congress is actually discussing copyright reform again. The head of the US Copyright Office, Maria Pallante, has proposed a bunch of changes to copyright law (some good, some bad), and astoundingly, just as Congress is at least trying to have the discussion about whether or not those and other ideas make sense, the USTR is looking to effectively tie everyone's hands by saying "these things cannot be changed," including many of the reforms that Pallante has directly proposed.

That's really quite incredible if you think about it. On the one hand, you have the very head of the Copyright Office suggesting some reforms, and you have Congress beginning the process to explore that. On the other, you have the USTR totally ignoring the sole power of Congress to make copyright and patent law, and effectively saying "you cannot make any of the suggested reforms." And then the USTR has the gall to ask Congress to give up its power to challenge specific provisions in the agreement? While we're concerned about the Congressional copyright reform process, at least it's being done in the open. The USTR has been hashing out the plan in TPP in total secrecy for years.

Who the hell does the USTR think they are that they can flat out override the Constitution and the Congressional process, and effectively block them in and stop any meaningful attempt at copyright reform? All done via a process driven entirely by a few special interests? It's anti-democracy. It's pure corporate cronyism by the worst cronies around.

Now, defenders of this proposal will lie. They'll claim that technically (1) Congress has to approve this and (2) nothing in a trade agreement can limit Congress's ability to pass laws. Neither point is really true (the fun with things that are "technically" true, but false in reality). As mentioned above, the USTR (and President Obama) is pushing extra hard for Trade Promotion Authority, which basically is Congress granting the USTR full power over the TPP. Normally, Congress would be able to debate, challenge and reject questionable provisions in the agreement. But, with TPA "fast track" ability, Congress could only give a yes/no vote on the whole package. And, yes, some will claim that they can just vote no, but the reality is that there are other parts of this agreement that are designed to make that nearly impossible. There are all sorts of little things that we'll be told we "need." TPA is a bit of theater. What's delivered to Congress will almost have to be passed -- so if it's granted (before it's even public what's in the full agreement) -- Congress has effectively approved the whole agreement.

As for the claim that Congress' hands cannot be bound by a trade agreement, this is again technically true, but it ignores that it becomes realistically impossible. The second that Congress tries to change a law that goes against the TPP -- such as, say, reducing the term of copyrights from the insane level today to merely crazy -- lobbyists and pundits will come screaming from every direction about how we can't abandon our "international obligations." We'll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it's in the trade agreement, "breaking it" becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they've perfected this process of getting crap they can't get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it. They're not even shy about it, admitting this is exactly how they got the DMCA in the first place. Considering that the TPP has a form of DMCA-on-steroids, it shouldn't be a surprise that they're using an even bigger trade agreement to do the same thing.

All of this should lead to a basic question: why is the USTR and President Obama directly trying to undermine Congress' sole authority over copyright and patent policy? Are they proud of the tricks they tossed in the agreement? I imagine that when the USTR staffers move on to their jobs in the same industries that pushed them to write the agreement this way, they'll all laugh about that time they fucked over the American public.