Estimated reading time: 3 minutes
After the (almost) final version of the Trans-Pacific Partnership (TPP) document was leaked on Wikileaks, the Electronic Frontier Foundation (EFF) released a detailed analysis of what the document entails and what it means to us, the general public, titled “The Final Leaked TPP Text is All That We Feared“.
I suggest you take a look at their article linked above, but here’s a quick tl;dr list of quotes from the article that I think summarize the situation as closely as possible. It’s important to keep in mind, as you read, that this deal was negotiated in secret and behind closed doors and the only reason we’re getting to read it now is because it’s been leaked.
Quite honestly there are no parts of this agreement that are positively good for users.
Imbalance of Rules: “…all of the provisions that recognize the rights of the public are non-binding, whereas almost everything that benefits rightsholders is binding. In a pitifully ineffectual nod towards users, it suggests that parties ‘endeavor to achieve an appropriate balance in its copyright and related rights system,’ but imposes no hard obligations for them to do so, nor even offers U.S.-style fair use as a template that they might follow.”
Expansion of Copyright Terms: “…extension of the copyright term to life plus 70 years, despite a broad consensus that this makes no economic sense.”
Ban on Circumventing DRM: “…someone tinkering with a file or device that contains a copyrighted work can be made liable […] for doing so even when no copyright infringement is committed. Alongside […] is a similar prohibition on the removal of rights management information [which] could implicate a user who crops out an identifying watermark from an image, even if they are using that image for fair use purposes…”
Criminal Enforcement and Civil Damages: This is the worst part of the text, in my opinion. “…rightsholders can submit ‘any legitimate measure of value’ to a judicial authority for determination of damages [and] no exception to these damages provisions is made in cases where the rightsholder cannot be found after a diligent search.” Additionally, in case the idea of being charged to pay an arbitrary amount of money for even circumventing DRM with no proof of copyright infringement wasn’t terrifying enough, “any materials and implements used in the creation of infringing copies can also be destroyed [including] devices and products used for circumventing DRM or removing rights management information.”
The EFF makes a very important point here and it bears paying attention: “Because multi-use devices such as computers are used for a diverse range of purposes, this is once again a disproportionate penalty. This could lead to a family’s home computer becoming seized simply because of its use in sharing files online, or for ripping Blu-Ray movies to a media center.”
Trade Secrets: “…to criminalize those who gain ‘unauthorized, willful access to a trade secret held in a computer system,’ without any mandatory exception for cases where the information is accessed or disclosed in the public interest, such as by investigative journalists or whistleblowers.”
ISP Liability: ISPs will essentially become the police of the internet. ISPs will be liable to any copyright infringement by their users and would therefore be expected to take down any content or remove access to content that has been found to be in violation of copyright. But because they don’t want to be liable, there will be no investigation at all. Why would they risk it? All it takes is one copyright infringement letter and down goes the content. This is the worst provision, one that could seriously cripple the internet as we know it.
There is nothing in here for users and innovators to support, and much for us to fear—the ratcheting up of the copyright term across the Pacific rim, the punitive sanctions for DRM circumvention, and the full frontal attack on hackers and journalists in the trade secrets provision, just to mention three. This latest leak has confirmed our greatest fears—and strengthened our resolve to kill this agreement for good once it reaches Congress.