TR Member Perks!

After years of secrecy, trade officials have finally released the full text of the Trans-Pacific Partnership deal. Numerous leaks have shed some light on the deal, the most recent of which was Wikileaks’ release of the final version of the IP section of the deal. This will be the first time the public will see the entire deal in its final version. Despite the length of the document, the EFF already has analysis which covers some of the largest issues in the deal.

Of the greatest concern is the Investment chapter, which lays the procedure for investor-state dispute settlement (ISDS). This allows private companies to sue sovereign nations if their laws or policies are harmful to their business. It was originally believed that IP would not be subject to ISDS arbitration, but that is not the case as IP is considered an asset subject to the ISDS process. For an example of where this sort of provision might lead, consider that Philip Morris is suing Australia under a similar free trade agreement. Philip Morris believes the Tobacco Plain Packaging Act interferes with their trademark rights. The entire ISDS system is a tool for companies to circumvent the democratic process and crush any laws they disagree with.

The EFF also criticizes the Electronic Commerce chapter for prioritizing trade interests of privacy and security. Many countries have regulations regarding data transfers that cross national borders, in order to protect the privacy of their citizens. This agreement would allow countries to still do so but requires that such regulations do not amount to “arbitrary or unjustifiable discrimination or a disguised restriction on trade.” Of course that provision is open to interpretation, and companies may use the arbitration process to attack perfectly reasonable privacy regulations if they interfere with business interests. The complaints are reiterated against the Telecommunications chapter, which similarly prioritizes trade and business interests over privacy and security.

Due to the size of the deal, the EFF will still be digging further into it, but what they’ve found already is worrisome enough. The member states have not yet ratified the deal, so it is still possible to stop it. The EFF encourages people to join its protest against the TPP at Washington, DC on November 16.

How concerned are you about the TPP? Leave your comments below.

Max Michael

Senior Writer

I’m a technology reporter located near the Innovation District of Kitchener-Waterloo, Ontario.

  • Oh hell no…

  • Dave

    Regarding the ISDS chapter: The US is currently in around 40 or so nearly identical dispute resolution agreements in other treaties. They haven’t caused the world to collapse under corporate lawsuits. They haven’t stopped the democratic process. They’re just a way for people who invest in a region to protect their investment from unjust or excessive regulatory schemes, many of which are put in place by local governments to specifically attack foreign investments.

    The vast majority of arguments against the TPP are largely “what if” worst-case scenarios that fail to take into consideration that the opportunity for these worst cases to occur has existed for over a decade without them happening yet. While I’m usually with the EFF on the majority of what they do for privacy and freedom online, I do think that they are very much in the wrong here. This is all uninformed fearmongering that was initiated by people with a protectionist agenda, and I hope that anyone reading this can actually do their own research on the TPP instead of taking this kind of bull at face value.

  • Fient

    Baaaad deal.
    By corporations for corporations.
    It won’t benefit anyone except the super uber rich owners of those corporations, everyone below is going to be stepped on.

  • BurntToShreds

    This was in no way uninformed fearmongering.

    A massive trade deal that affects almost 900 million people was negotiated over the course of 5 years by an infinitesimal number of that 900 million, and that small amount included people representing extremely wealthy industries.

    It’s no coincidence that the text includes provisions that would require ISPs to police the Internet to block and remove content, even entire websites, at the behest of copyright holders. It’s no coincidence at it includes criminal penalties for whistleblowers. It’s no coincidence that it would extend copyright terms to 70 years plus life of author.

    This deal was manufactured by massive corporations for the sake of increasing their power over a population that has become increasingly tired of their shit.

  • Dave

    See, this is a perfect example of what uninformed fearmongering is. In order:

    The ISP policing provisions are a nearly carbon-copy extension of the DMCA. Nothing will change stateside; it will merely allow companies to have stronger controls over copyright violation outside of the states. This is an extremely good thing for us-based companies. While I do believe that the DMCA is not the best way to protect IP online, it is an effective stopgap measure and far better than having nothing in other countries.

    “Criminal penalties for whistleblowers” is a very misleading statement, at best. The criminal penalties apply specifically to trade secret misappropriation, where whistleblowers reveal a lot of irrelevant information to the issue they are whistleblowing about (Like, an information dump where 1 or 2 of 10,000 documents relate to a serious problem) that ends up harming the company excessively. We’ve had this in the states for nearly 15 years. Again, nothing will change stateside. More importantly, this is also a very good thing – this forces whistleblowers to carefully reveal issues to the government and the public, instead of destroying a company with a dump of every document they have access to. While companies violating the law do need to be reported, I think we can all agree that revealing every valuable secret the company owns is excessive punishment.

    Copyright terms are already 70 years plus life, so nothing will change stateside. I agree that copyright being this long is egregious and should change, but as long as we are subject to it, why not do the same for other countries? Standardizing IP law across the world is an important goal that we should strive for. Instead of trying to demolish the agreement, we should aim to keep global terms, but improve them. As an added benefit, global standards encourage smaller businessess with valuable IP to get to market, since they would save immensely on protecting their IP globally if it is subject to only one common system.

    Finally, let me add that ISDR provisions are common in trade agreements, and have resulted in no losses or harm to the democratic process or our country. You’ve regurgitated some poorly research talking points – see how literally everything you claimed as a horrible change already exists and seems to do no real harm? I hope that people take opinions of people with no subject matter expertise with a grain of salt – but unfortunately blindly glomming on to this kind of irrational, anti-corporatist BS is what started the anti-TPP outrage in the first place.

    TLDR: The deal is a solid deal that changes nothing for people in the states and in effect extends US law to a lot of countries that have previously ignored it. This is a net positive that reduces costs and promotes the growth of businesses.

  • BurntToShreds

    So instead of reforming our own copyright laws and letting other countries work their own laws out (maybe even come up with better ones than we have here), we should enshrine the current shitty US laws in a massive trade agreement and export them to other countries? That sounds just absolutely dandy.

  • Dave

    I see you’ve conveniently chosen not to address that every single point you brought up was a non-issue? I’ll take that win. Now, on to the new issue you failed to bring up before and just now have learned is “bad”:

    Our laws are far from shitty – some are bad, some are good, but for the most part they WORK. More importantly, they work far more consistently and equitably that systems in other major economies. Compare the state of IP protection in the states and in china – now THAT is shitty.
    But its also incredibly disingenuous to claim that we’re forcing our imperfect system on other countries that would otherwise develop their own effective ways to protect businesses. For many countries, especially east asian ones, there are no systems in place and none being planned or created.
    Furthermore, there are major benefits to extending the american system: First, implementing a proven equitable system over something that an ostensibly third-world country could create ensures certainty, which both reduces costs and risks associated with that area, encouraging business development there. Second, for businesses that remain in the US or areas with similar law, costs for doing business internationally are reduced. You no longer have to invest a lot of money on lawyers that specialize in international IP law for specific regions if they all follow the same basic framework. In short: Cheaper legal costs for smaller US businesses make international expansion more feasible.
    And lastly: While I do agree that an overhaul of the DMCA is necessary in the near future, the process to do so would be long and drawn out; assume years of negotiation, at least. Passing a major trade deal that implements our current legal framework not only serves as a very functional stopgap measure, but facilitates implementing future changes to these regulations on a global scale.

    Any more fearmongering you’d like to throw out there, or are you about done?

  • Fient

    So basically it’s a bad deal that allows bad things to happen but we should trust that they won’t do those bad things purely out of their good faith.
    I would not be willing to take that risk.
    They had 5 years to come up with something good, they chose to make the deal private behind closed doors and now they want to rush everyone to sign it.
    And I don’t like that.

  • Dave

    Incorrect – the deal does nothing new, and major provisions like ISDS and these above have been around for decades without causing problems. Its not a “have faith” thing – we have decades of proof with dozens of trade agreements with the same provisions as evidence that the sky won’t fall if the TPP goes through.
    The simple fact is that the anti-corporatist side of the left is blowing this way out of proportion because this agreement is -gasp!- beneficial to businesses.

    And IMO, as a lawyer that works with a lot of mid size businesses, this deal is great for a lot of people. It’s not perfect – I’m still looking over the whole thing right now – but its pretty much what I expected and it does a lot to ensure predictability and security in less accessible and lrss developed markets.

  • BurntToShreds

    The problem is that enshrining the DMCA in this trade deal would make it more difficult to overhaul. Suddenly you’re not working against the U.S. Government but a whole host of member nations to come up with an alternative. It took five years for a few hundred people to negotiate the TPP behind closed doors; it’ll probably take even longer to amend now. And all the while, the media companies that have been doing their damnedest to take down Google over YouTube and practically everything else they own/do will probably be using the newly expanded legal framework to undermine growing companies elsewhere.

  • braneman

    OK then explain how Malaysia got its human trafficking status upgraded, that’s not fear-mongering at all that actually happened, look it up, or better yet let me look it up for you.

    There you go, that’s the kind of people we’re dealing with here, most progressive trade deal ever made bar none certainly.

  • Dave

    Easy – I’d explain it by reading the actual report instead of a clearly politicized article:

    The report states that in the past year, Malaysia has made important steps to combat trafficking – including passing new laws to help trafficking victims and doubling the number of trafficking investigations. More importantly, Malaysia has been on the tier2 watch list for four years prior to 2014 – only being downgraded that year. Being tier3 is the anomaly, not the other way around.

    However, if you only read biased articles trying to push a specific agenda, I can see that it is pretty easy to buy into the sky is falling narrative, no?

  • Dave

    I can understand this perspective; negotiation is difficult. In my experience, however, successive deals are always easier to do than the first ones. If we can actually get this deal to pass, getting changes put in will be much easier than starting a deal from scratch – in fact, amending and modifying trade deals happens often, and is usually a less complicated process. Say we want to modify the IP chapter of the TPP – that will be far less work than creating an entirely new agreement, and since the parties have already agreed to the original, and new regulations would be (hopefully) less stringent, they’re more likely to agree. I think its also important to note that the TPP isn’t a direct copy of the DMCA – it just has provisions similar to the DMCA for treating online content that can still be subject to some local interpretation.

    I DO agree that the DMCA is slowly becoming antiquated and needs to change. But I think that fighting the US government would actually be more difficult than fighting anyone else – after all, this is where these laws originate and where the industries that promote them have the most pull. On the bright side, case law in the US is slowly changing the way we interpret things. For example, a major case recently decided that fair use needs to be considered before filing a DMCA takedown – and failing to do so can result in damages to the filer.

    I think that the proper (and fastest) way to deal with the DMCA is through case law – once a large enough body of law is created that pokes holes in the weakest parts of the DMCA, we can legislate amendments or scrap and rebuild it entirely, then pass them on to our trade agreements.

  • braneman

    The actual report is that they found 130 mass graves in Malaysia
    this may.

    There you go, clearly pushing a specific agenda by planting 139 mass graves in malaysia to stop the tpp, that’s just disgusting I mean they worked hard to get their human trafficking index down and their index rating rising less than two months after that is fine. They’ve obviously tried to clean up their act here. Oh wait in August they found MORE.

    and you call that PUSHING THE AGENDA. Handwave away those, say the report was fine and 139 mass grave sites(not individual people, mass grave SITES) are fine and the report is 100% accurate. I dare you.

    If those sources aren’t good enough I can always find more btw. There was even a human trafficking ring that went as far as Germany busted just yesterday starting from Malaysia, I assure you there are no shortages of things I can point to, to show you that report is a load of crap.

  • Dave

    I don’t have to handwave those away. Malaysia has been on the Tier 2 watch list for nearly a decade, and has had one year-long slip five years ago, and one year-long slip last year to tier 3. Do you even know what the tiers represent?
    Tier 3 represents countries that don’t comply and aren’t trying to comply. The tier 2 watch list is for countries that aren’t in compliance, but have made significant effort to comply. The report cites multiple laws that Malaysia passed since the 2014 report, as well as increased efforts to investigate trafficking and work with other governments to fix the problem. To suggest that old mass grave sites somehow nullify efforts that Malaysia has pushed to prevent future mass grave sites is, at best, disingenuous – especially when they have been on the tier 2 watch list for 8 of the previous 10 years.
    Doing some basic math on your two sources would suggest that, VERY generously, .001% of the population of Malaysia is affected by human trafficking – if I were to list bad things that happen in the US that affect .001% of the population and claim that it was part of some plot by the government to harm human rights, I’d be laughed out of a room.
    Of course, sensationalist headlines and unreasonable finger pointing play perfectly into the anti-tpp conspiracy narrative, so you’ll keep pushing them instead of objective fact.

  • BurntToShreds

    Do you really think that the MPAA and everyone else will just sit down and let people impose reforms on this deal they spent years colluding to make and billions of dollars in lobbying money to pass? Congressional leaders working on Copyright are going to California to meet up with Disney and have dinner with the MPAA. Sure, they’re meeting up with the EFF and other organizations/companies today, but Disney and the MPAA are where the real money is. What world do you live in where these massive industry organizations won’t do the same shit to maintain the status-quo or even make things even more strict under the TPP?