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The TPP, Conspiracy Theories and Click-Bait

Die-hard opponents of free trade and intellectual property have plainly stated their intention to wage a smear campaign against the largest trade agreement in history, the Trans-Pacific Partnership (TPP). Their transparent and tone-deaf tactics have been lampooned as one-sided and overly simple, but still they strain to create fear and anxiety among consumers and users at every opportunity. This, despite mounting fatigue and annoyance from their own supporters. For example, Redittor “binarybandit” posted:

I've seen EFF doing this lately with the TPP bill. They've been using fear mongering to make people believe that they're seriously gonna go to prison for making a free mod for a game, or that it's gonna destroy the internet somehow. People are eating it up though.

Right on cue, the latest effort to invent controversy centers on a breathless EFF conspiracy theory – government lawyers have secretly expanded the scope of penalties for copyright infringement during a technical review of the TPP text by changing the word “paragraph” to the word “subparagraph” in a footnote. 

To be fair, it is true that this change means the footnote only applies to one part of the paragraph, and that does actually make a difference.  The paragraph at issue sets out rules for calculating and applying remedies for criminal theft of intellectual property, and the footnote allows countries to ignore those rules, except for more significant cases.  The change means only the last part can be ignored (except for more significant cases), not the whole paragraph.  Sensing an opportunity, the EFF pounces insisting there is “no rational basis” for the change.  Let’s examine that.

The very first obligation in the paragraph — where the footnote no longer applies — is that the punishment should fit the crime.  In the precise terms of the agreement, countries must provide “Penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity.”  Now, if the footnote applied to this requirement, it would be saying that in lesser cases, the punishment doesn’t have to fit the crime and doesn’t have to provide a deterrent.  Would that make any sense to you? 

The second clause in the paragraph — again, where the footnote no longer applies — creates an obligation for countries, “in determining penalties, to account for the seriousness of the circumstances, which may include circumstances that involve threats to, or effects on, health and safety.”  If the footnote actually applied to this, it would mean that countries set penalties without taking into account the seriousness of the case, but only in lesser cases.  That’s not only illogical, it is the opposite of what anti-IP groups should want; otherwise there could be higher penalties in lesser cases.

So what is the right reading?  The last clause of the paragraph, the one on which the footnote is actually placed, requires countries to give their police and prosecutors the authority to investigate crimes on their own initiative.  This is already what Americans expect, but in some countries, especially in the Far East, the police can only act if there is a complaint from the victim.  So, for example, if a police officer witnesses someone selling knock-off DVDs, they can’t do anything because they don’t have a specific complaint about that crime from the copyright owner.  The U.S. seeks to change this to at least give the police the choice of whether to take action.  And the footnote would allow countries to limit that discretion to only more serious cases. 

In looking at the whole paragraph and how the footnote would apply, it seems clear that its intention is to ensure that remedies to copyright infringement are tied to the seriousness of the crime while at the same time giving sovereign nations flexibility to determine law enforcement priorities for themselves. 

Moreover, if anything, the TPP language is weaker than previous FTAs. In the Australia-U.S. Free Trade Agreement Australia and the United States agreed to provide remedies for criminal IP theft, including deterrent penalties and the ability of police to act on their own authority, with no limiting footnote at all.  How EFF can interpret the analogous TPP text to be so “shocking” is puzzling.

As to the edit, it’s hardly surprising that a few minor mistakes were made given that the TPP negotiation wrapped up with a marathon week-long session of negotiations. After all, trade negotiators are only human, and a week of sleep deprivation leads to at least a few drafting errors.  But when such a mistake is caught later, it hardly justifies using the terms, “devious,” “sneaky,” or “underhanded,” as EFF’s article does.  And while it may not be justified, it certainly is consistent with their tactics. Indeed, as EFF supporter and Redittor “cknl2” laments:

If government proposes any law regarding the internet, it is twisted and equated to SOPA (the horrors of SOPA/PIPA)… The idea is that you should be afraid of anything the government does… The only people who will defend the law are "governments/corporations" so [EFF will] just claim they are lying in order to oppress you. It's called politics. I like to call it conspiracy-theory politics.


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