10/17/2014 archive

Latest Intellectual Property Chapter Of TPP Agreement Leaked: Would Be A Disaster For Public Health

by Mike Masnick, Tech Dirt

Thu, Oct 16th 2014 7:57am

(W)e’ve discussed the ridiculous and unnecessary secrecy concerning trade agreements negotiated by the USTR. The text of the negotiating documents and even the US’s general position is kept secret until the very end, at which point concerns from the public and innovators no longer matter. Instead, the USTR relies on legacy industry “advisors” who are mostly interested in protecting what they have from disruption, change and innovation. For all the talk of how these agreements are “free trade” agreements, they tend to be anything but. They are focused on protecting a few industries against competition, disruption and innovation. The former US Trade Rep Ron Kirk was unusually honest a few years ago in admitting that these agreements would never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the “Intellectual Property” chapter of the Trans Pacific Partnership (TPP) agreement, and now it’s done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration.

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the US is pushing strongly for “drug-company friendly” language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma — showing how it really feels about public health — has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely.

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As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty (“investor state dispute settlement” or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn’t do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive “new new thing” rather than the old, generic, cheaper offering that is just as (if not more) effective.

A bunch of countries are pushing for the right to cancel a patent if it “is used in a manner determined to be anti-competitive,” but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something.

In the copyright section, it appears that US goes beyond existing US law in asking that “making available” be considered one of the exclusive rights protected under copyright law. Some US courts consider “making available” to be considered part of the “distribution” right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that’s not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include “making available” as an exclusive right for copyright holders.

There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public’s rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced.

The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we’ve seen with statutory damages in the US and how it enables shady practices like copyright trolling.

There’s a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn’t care. If you accidentally record a bit of a movie? Go to jail.

There’s a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they’re only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.

Hello again, Party People. This week at the Party it’s all about the dudes. We’ll be featuring tunes by male artists and groups. Any little thing that tickles your fancy~

All The Young Dudes

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

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Trevor Timm: The government wants tech companies to give them a backdoor to your electronic life

The FBI chief’s call for ‘clarity and transparency’ on surveillance wouldn’t be so laughable if the government wasn’t so aggressively secretive

FBI director James Comey wants a US government-mandated backdoor into your iPhone and your Google account. But Comey doesn’t want to call his proposed privacy invasion a backdoor. He doesn’t understand how it would work. And he expects everyone who has been horrified by the NSA’s mass surveillance to just sit back, weaken their personal security and trust that the government will never abuse it. [..]

We know there’s no real need to worry about Apple and Android’s move: law enforcement has a half-dozen other ways to get at all the data out of your phone if it needs to solve actual crimes. This is just a basic security protection that, if implemented by Facebook, Gmail, text messaging apps and others, could go a long way to solving America’s cybersecurity problem. And it would leave everyone living in countries with authoritarian governments like those in Egypt, Saudi Arabia, China or Russia from having to worry about being spied on.

But Jim Comey, like the NSA, sees encryption for the masses as the enemy – not the type of tool that keeps your medical and bank records safe. He was on 60 Minutes this week calling Apple and Google’s decision a threat to national security, and, on Thursday, he gave first major speech as FBI director, which focused entirely on the dangers of people controlling their own security.

Naomi Klein: Climate change: how to make the big polluters really pay

By dropping Shell, Lego shows new ways to target the astronomical profits of the fossil fuel industries

When the call came in that the University of Glasgow had voted to divest its £128m endowment from fossil fuel companies, I happened to be in a room filled with climate activists in Oxford. They immediately broke into cheers. There were lots of hugs and a few tears. This was big – the first university in Europe to make such a move.

The next day there were more celebrations in climate circles: Lego announced it would not be renewing a relationship with Shell Oil, a longtime co-branding deal that saw toddlers filling up their plastic vehicles at toy Shell petrol stations. “Shell is polluting our kids’ imaginations,” a Greenpeace video that went viral declared, attracting more than 6m views. Pressure is building, meanwhile, on the Tate to sever the museum’s longtime relationship with BP. [..]

Internationally, there are hundreds of active fossil fuel divestment campaigns on university and college campuses, as well as ones targeting local city governments, non-profit foundations and religious organisations. And the victories keep getting bigger.

Welcome to The Breakfast Club! We’re a disorganized group of rebel lefties who hang out and chat if and when we’re not too hungover  we’ve been bailed out we’re not too exhausted from last night’s (CENSORED) the caffeine kicks in. Join us every weekday morning at 9am (ET) and weekend morning at 10:30am (ET) to talk about current news and our boring lives and to make fun of LaEscapee! If we are ever running late, it’s PhilJD’s fault.

This Day in History

Arab oil embargo fuels energy crisis; Americans clinch revolutionary victory at Saratoga; Deadly quake hits northern California; Mobster Al Capone convicted of tax evasion; Playwright Arthur Miller born.

Breakfast Food for Thought

Revealed: how Whisper app tracks ‘anonymous’ users

The company behind Whisper, the social media app that promises users anonymity and claims to be the “the safest place on the internet”, is tracking the location of its users, including some who have specifically asked not to be followed.

The practice of monitoring the whereabouts of Whisper users – including those who have expressly opted out of geolocation services – will alarm users, who are encouraged to disclose intimate details about their private and professional lives.

Whisper is also sharing information with the US Department of Defense gleaned from smartphones it knows are used from military bases, and developing a version of its app to conform with Chinese censorship laws.

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

October 17 is the 290th day of the year (291st in leap years) in the Gregorian calendar. There are 75 days remaining until the end of the year.

On this day in 1986, President Ronald Reagan signs into law an act of Congress approving $100 million of military and “humanitarian” aid for the Contras. Unfortunately for the President and his advisors, the Iran-Contra scandal is just about to break wide open, seriously compromising their goal of overthrowing the leftist Sandinista government in Nicaragua.

Congress, and a majority of the American public, had not been supportive of the Reagan administration’s efforts to topple the Sandinista government in Nicaragua. Reagan began a “secret war” to bring down the Nicaraguan government soon after taking office in 1981. Millions of dollars, training, and arms were funneled to the Contras (an armed force of Nicaraguan exiles intent on removing the leftist Nicaraguan regime) through the CIA. American involvement in the Contra movement soon became public, however, as did disturbing reports about the behavior of the Contra force. Charges were leveled in newspapers and in Congress that the Contras were little more than murderers and drug runners; rumors of corruption and payoffs were common. Congress steadily reduced U.S. assistance to the Contras, and in 1984 passed the second Boland Amendment prohibiting U.S. agencies from giving any aid to the group.

The affair was composed of arms sales to Iran in violation of the official US policy of an arms embargo against Iran, and of using funds thus generated to arm and train the Contra militants based in Honduras as they waged a guerilla war to topple the government of Nicaragua. The Contras’ form of warfare was “one of consistent and bloody abuse of human rights, of murder, torture, mutilation, rape, arson, destruction and kidnapping.” The “Contras systematically engage in violent abuses… so prevalent that these may be said to be their principal means of waging war.” A Human Rights Watch report found that the Contras were guilty of targeting health care clinics and health care workers for assassination; kidnapping civilians; torturing and executing civilians, including children, who were captured in combat; raping women; indiscriminately attacking civilians and civilian homes; seizing civilian property; and burning civilian houses in captured towns.

Direct funding of the Contras insurgency had been made illegal through the Boland Amendment the name given to three U.S. legislative amendments between 1982 and 1984, all aimed at limiting US government assistance to the Contras militants. Senior officials of the Reagan administration decided to continue arming and training the Contras secretly and in violation of the law as enacted in the Boland Amendment. Senior Reagan administration officials started what they came to call “the Enterprise,” a project to raise money for their illegal funding of the Contras insurgency.

Oh yeah, this will work.

I found an error!  On the Internet!

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