Obama’s Secret Negotiations on IP Treaty Made Public

Letting Special Interests Run Wild

Derek Khanna
Nov 14, 2013 · 6 min read

Yesterday a portion of a leaked version treaty that the White House has been secretly negotiating became public when Wikileaks published an August draft of the Trans-Pacific Partnership (TPP) Treaty.

It’s nothing short of unbelievable.

The Obama Administration, at the behest of Hollywood lobbyists and other special interests, has been secretly negotiating to incorporate international and European conceptions on copyright to supersede the U.S. Constitution: specifically ideas on greatly expanding copyright term lengths, removing important free speech and copyright protections for creators, imposing intermediate liability, and making new beneficial technologies as illegal. The White House is even trying to fast-track the still uncompleted treaty in Congress by the end of the year, potentially even through an executive agreement to bypassing Congress altogether; they know that the American people would never agree to such an extreme, unprecedented deviation from our Founding principles secretly negotiated on behalf of the top 700 special interest lobbyists.

This treaty appears to have been designed for the purpose of ensuring that the United States could never adjust domestic copyright law going forward. This is duplicitous as nearly all parties now agree that we need copyright reform.

Last year the House Republican Study Committee wrote a report calling for shorter copyright terms, reducing statutory damages and fixing fair use (which I authored). This report was endorsed by nearly numerous organizations on the conservative side. This spring the Registrar of the Copyright called for the “Next Great Copyright Act” that would address many deficiencies in modern day copyright, including calling for Congress to consider reducing copyright term lengths through a potential renewal proposal. The House Judiciary Committee has had a number of hearings to outline broad proposals for reform to copyright, and many voices have advocated for more free market oriented policies that would help the economy and which are more consistent with the Constitution. The Commerce Department’s USPTO released a Green Paper on copyright reform and this week accepted feedback and proposals from outside organizations on how to fix copyright. All the while, more Americans are starting to realize that special interests have corrupted constitutional copyright to become Mickey Mouse copyright.

But for corporate cronies it was all a shell game.

While free market economists and legal scholars were busy trying to solve problems and restore more sound copyright policies that would benefit innovators, content creators and the general public, special interests lobbyists knew that all of those things were just a side-show from the real game: the secret TPP Treaty. A treaty that economists, outside groups, and copyright reform advocates were legally barred from accessing.

In the shadows special interests planned a policy coup de etat: they would lock in US copyright law through a treaty to ensure that all future Congress’s could never consider copyright reform.

The leaked treaty would expand copyright term lengths around the world, with one proposal of extending copyright terms to life + 100. Copyright by definition was supposed to be short. The Founders copyright was 14 years. The Constitution requires copyright to only be for “Limited Times” thus continually expanding copyright to ensure it never expires, as life + 100 would do for another 30 years, violates the Constitution in both text and spirit.

Economists on the left and right, as well as legal scholars, have been nearly unanimous in their conclusions that copyrights terms are already well beyond that which is most beneficial for the economy and thereby this insanely long copyright term has serious economic costs to society.

The TPP text also includes language which appears to trample upon a doctrine known as “fair use” which has an important basis in American history of protecting our First Amendment right to speech. TPP would, in major circumstances, remove a pillar of copyright law called the First-Sale Doctrine, which seems to be a direct violation of the Kirsaeng case which upheld the First-Sale Doctrine (essentially the right that after a consumer buys a product that they can sell it to whomever to so choose).

And the TPP text includes proposals on intermediate liability that could become another attempt to enact provisions of SOPA/PIPA all over again. SOPA/PIPA was bad legislation that over 12 million Americans reached out to Congress to stop. Since it wouldn’t pass through Congress, now the Administration is trying a run around through international treaty.

On another issue, this treaty negotiation revealed shear duplicity by the White House. In January a beneficial technology known as cellphone unlocking, the ability to take a phone from one carrier to another when your contract expires, became illegal because of a decision by the Librarian of Congress. The Librarian made the use of this technology a felony punishable by 5 years in prison and a $500,000 fine. This was done after major wireless companies petitioned for this to be made a crime; it was textbook crony-capitalism: using the regulatory process to kill your competition.

After 114,000 people rose up in opposition (a campaign I led) to the ban on unlocking the White House came out publicly in clear and unequivocal language:

“The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. . . It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs.”

The White House publicly called for legislation to restore the free market. Several bills were introduced, but the one bill that would solve the problem never received a hearing by Congress despite being endorsed by Generation Opportunity, FreedomWorks, EFF, Public Knowledge, Washington Examiner, technology experts and the people who led the movement — now we know part of the reason why.

All the while, despite what the White House said publicly, in secret they were negotiating to make unlocking even more illegal; potentially an even more serious crime (there is a proposal by Canada on the matter, but no other country agreed to it and even with Canada’s proposal it would still be illegal).

Also, the TPP Treaty would ban another technology, jailbreaking, which would make 23 million people felons punishable by up to 5 years in prison for the crime of installing a different operating system on their phone, tablet or e-book reader. But TPP doesn’t stop there as it bans loads of other beneficial technologies. These bans could be as broad as affecting our vehicles, as even taking your car to the mechanic could be a potential crime if your mechanic has to access the onboard computer system without “permission” from your car manufacturer.

None of these technologies have anything to do with copyright, but lobbyists think that using the term “copyright” through international treaty will allow them to hoodwink the American people to ban important and beneficial technologies for the free market (which helps their bottom line).

Further, there is evidence that these provisions being promoted by the US Trade Representative were controversial around the world. This means that the US likely traded away beneficial provisions from a large trade deal in exchange for special interest favors.

So much for free trade.

This treaty has been shrouded in unprecedented secrecy for a trade deal. See this tweet from Representative Jared Polise (D-CO):

Members of Congress were not allowed to read it unless in a special room, could not take the text back to their offices, could not take notes, and their staff were forbidden from reading the text of the treaty — this for a treaty that doesn’t involve national security. I know this because I personally tried to read it as a staffer and was told this by Members. While the press and general public were also kept out of the loop, we now know that 700 industry lobbyists were given special passes by the White House to access the treaty drafts.

So Congressional staff, press and general public aren’t allowed to read this treaty, but special interests can; and now we know why: the White House didn’t want the public to know what was being negotiated in their name. This has long been the strategy of the content lobby, what they cannot enact through statute in the United States they force through international treaty and then lobby Congress to be in “compliance” with the treaty that they wrote. This is a classic example of policy laundering, whereby corporate interests use secretive international forums to bypass the democratic process and the Constitution’s limitations.

DEREK KHANNA is a Yale Law Visiting Fellow at the Information Society Project. He was previously a congressional staffer for the House Republican Study Committee and Senator Scott Brown (R-MA). Derek has spoken at the Consumer Electronics Show and South By Southwest and has testified before Congress. He spearheaded the successful cellphone unlocking campaign and he writes about issues at the intersection of government and technology.

Politics and Policy

Place for thoughtful pieces and discussion on policy issues

Derek Khanna

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Yale Law Fellow, Columnist & Policy Expert. I focus upon tech & policy. Help my fight on phone unlocking http://t.co/QVhKPKEW4A @DerekKhanna

Politics and Policy

Place for thoughtful pieces and discussion on policy issues

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