Unveiling the “Unveilers” – The Real Facts on Trans-Pacific Partnership Agreement (TPP)

The news earlier this week of an alleged leaked version of the Trans-Pacific Partnership Agreement (TPP) intellectual property text has set the usual suspects aflame, with predictions of horrors so great, we would all wish the Mayans had been right. It’s no coincidence, I think, that all these same folks were against the TPP when it was first announced. And they were against the U.S.-Korea Free Trade Agreement before that. And they were against ten other U.S. free trade agreements, too. Ok, so they don’t like free trade and they don’t like intellectual property. I disagree, but hey, that’s what makes the world interesting. The part to take issue with is that they are taking the same laws and policies that are already in U.S. law and have been in other free trade agreements, and suddenly screaming like it’s some new thing. They deserve to be called on it so we’re blowing the whistle.

Let’s start with the most shameless half-truth I have seen in a long time; the claim that the U.S. is opposing its own law providing safe harbors from copyright infringement to Internet service providers. Well, just look at the leaked text – scroll way down to “Article Q.Q.I.1” (assuming it is accurate) and sure enough, the U.S. is opposing a sentence proposed by Canada. And if you want, you could stop reading there and go talk to the press. Or, you could keep reading and see that instead of one sentence, the United States is proposing several pages of text that are meticulously faithful to its law, the Digital Millennium Copyright Act (commonly known as the DMCA). It’s hard to make out with all those brackets of who supports what, but there it is. So, in fact, the U.S. is supporting the whole law, with all its balances and protections, and opposing a one-sentence summary of it.

Is this new? Is the U.S. using this negotiation do some sneaky thing? Well, not so much. The U.S. included the same thing in 11 of its free trade agreements over the past decade with: Australia (p. 17-25), Bahrain (p.14-21), Central America (p. 15-25), Chile (p. 17-27), Columbia (p.16-27), Morocco (p. 15-32), Oman (p. 15-22), Panama(p. 15-26), Peru (p. 16-22), Singapore (p. 202), South Korea (p. 18-30). Those page numbers are the page the text begins on. For example, p. 17-25 is page 25 of chapter 17, the IP chapter of the Australia-U.S. Free Trade Agreement, except for Singapore, which has normal page numbers.

Wait, what? Julian Assange has one leaked text and this guy has ELEVEN?? Eat your heart out, wikileaks. See, I have access to a site with the text of all these agreements. Yup, www.ustr.gov -- the website of the U.S. trade negotiators.

So, not only is this not new, it’s not secret? Right. And I’ve got one more for you – it’s been in U.S. law for 15 years: section 512 of the Copyright Act. And there’s more. All that stuff about the length of copyright, anti-hacking rules, etc., it’s all in U.S. law and prior agreements.  Go ahead and look for yourself. And with Australia, Chile, Peru, and South Korea all in the TPP negotiations now, they have already agreed to the U.S. approach in their respective prior agreements, with relatively minor variations depending on the particulars of the negotiation.

Let’s take another example. One regular IP critic is taking issue with the provision saying that in determining damages for a proven infringement, courts shall have the authority to consider the suggested retail price of the infringed product. First, it is worth pointing out that this doesn’t say what else the court can consider, and it doesn’t say what the court will actually award. In fact, it doesn’t even require the court to consider this information, just that they have the ability to consider it if it wants to. Why is this important? Because in some countries, where infringing copies might sell for the equivalent of 50 cents in local currency, the court may only be allowed to award damages based on that price instead of the price of the legitimate version. That’s just not fair to someone whose IP has been stolen. At least this way that can look at a fair assessment if they want to.

But this website claims this provision is an “aggressive new norm.” Sounds scary. Yet once again, this is what is in the past free trade agreements and it is U.S. law. It was part of the No Electronic Theft Act from 1997. Look at page 4, paragraph (g)(2), “the Sentencing Commission shall ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed.” It is the same principle, just in civil cases to determine damages where U.S. judges already have broad authority to accept relevant evidence.

So, folks, if you want to debate the policies, fine. If you don’t like current U.S. law, be honest about that. Let’s have those debates. But don’t start stirring people up with explosive claims of clandestine secret new stuff when it just isn’t true.