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IP in the TPP

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J-31.jpg
J-31 fighter prototype at the Zhuhai airshow. By 天剣2 – Licensed under CC BY-SA 4.0 via Wikimedia Commons.

My latest at the Diplomat takes a look at some of the logics for why the US is pursuing a hard line on IP in the TPP:

One of the biggest ongoing arguments in the TPP negotiations (as far as we know, anyway) remains the question of how far the United States can push the other signatories to adopt its views on intellectual property law. The contentious points revolve around the ability to undertake criminal legal action against IP violators. “The U.S. wants the standards for damages to be very high, and to go beyond TRIPS (Trade-Related Aspects of Intellectual Property Rights) obligations for injunctions and the destruction of infringing goods,” according to James Love of Knowledge Economy International. The United States has also pushed for increasing the ability of government to undertake criminal legal procedures against intellectual property infringers.

What’s at stake? The criminalization of IP infringement in a multilateral agreement would give the United States legal teeth for enforcing its preferred system of intellectual property protection across the world.

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  • cpinva

    Prof. Farley, serious question here. why should the theft of intangible property be treated any differently than the theft of tangible property? if I steal your car, it’s a criminal act, if convicted, I may well spend time in jail. if, on the other hand, I steal the plans for that car’s new, incredibly fuel efficient engine, it’s treated as pretty much a civil action, with fines, the destruction of any engines I made using those plans, and payment of damages to the owner of record, but never a thought of jail time.

    this seems a little ridiculous to me, if the idea is to give a potential patent/trademark/copyright thief cause to pause, and perhaps re-think their plans. basically, it’s just a cost of doing business. hard time on the other hand, along with everything else, might well make them seriously consider whether the possibility of jail time is worth the potential for profit.

    • Gwen

      If you steal a missile, you have one missile.

      If you steal the plans for the missile, you have an entire air force.

      And we all know how Prof. Farley feels about the air force. ;)

      • recurse

        The problem with your construction is that you assume intangibles can be property in the same way as tangibles. They can’t, and without that assumption your construction falls down.

        Intangibles are non-rivalrous, non-exclusive goods that are not subject to scarcity. This is to the extent that some of them can be communicated without the consent of the recipient. They are impossible to isolate, and are all, without exception, derivative of other intangibles.

        If I steal your car, I chose to steal your car. If a composer hears a song in an elevator, and later unconsciously includes a short chord progression in her composition, why should the elevator music distributor be able to claim a property right in the new composition? Why should the distributor, having imprinted their ‘property’ on the composer’s brain *without the composer’s consent*, be allowed to claim a proprietary interest in the composer’s person?

        Your “incredibly fuel efficient engine” is the result of centuries of invention and innovation. Yet you wish to claim that somehow YOU made this? The arrogance required to ignore the shared cultural, scientific, and technical heritage of ‘your’ invention is staggering. On what grounds to you really want to claim that this invention is your property? Remembering that by claiming this is the same property as your car, you are claiming a perpetual, heritable, proprietary right. If so, could you please explain to whom you are paying royalties in exchange for your use of the invention of the internal-combustion-engine?

        Your next recourse will probably be to a utilitarian claim “how else will be reward creators/inventors?”. Having switched from normative to utilitarian grounds, you will very quickly shift “Intangibles are property and should be treated as such” to “It is beneficial to society to provide limited property rights to authors”. The point is of course that most people agree that granting various limited rights to authors can be beneficial to society in general; however, it makes your analogy to automobile theft moot.

        Ultimately the reason copyright was originally a strictly civil matter is that when these laws were originally written the only people who “stole” non-trivial intangibles were the corporate executives writing the laws. The reason copyright is now increasingly a criminal matter is that the people who “steal” non-trivial intangibles now includes 12 year old girls and 85 year old grandmothers—and the executives writing the laws have other ways of avoiding jail.

        As always if you want to understand why most people do what they do “follow the money”; if you want to understand society, “follow the power”.

    • Murc

      Prof. Farley, serious question here. why should the theft of intangible property be treated any differently than the theft of tangible property?

      Your case for the current US IP regime sounds very reasonable when you couch it in those terms, cpinva.

      It sounds much less reasonable when put in the terms of “creative works completed decades before I was born will still be in copyright long after I am dead, and companies that made fortunes monetizing our shared cultural heritage want to make it impossible for anyone else to ever do what they did.”

      • ajp

        True, but based on the example given cpinva makes a good case. I think there’s a big difference between that type of stuff and, say, Mickey Mouse that is often elided when talking about IP.

      • joe from Lowell

        You and cp aren’t so much couching a point in different terms, as talking about two different things.

        You’re talking about how long IP protection should last; cp is talking about what should happen if it’s violated.

        • Steve LaBonne

          The connection is that abusive Mickey Mousian extension of IP protection long after any plausible connection with the original creator inevitably erodes the legitimacy of IP protection in general and therefore support for its enforcement.

          • joe from Lowell

            Seems a bit of a mote-beam problem, compared to the profit motive. It’s not huffiness over Mickey Mouse that driving the black market.

            • Steve LaBonne

              All the more reason not to let corporations abusively extend IP protections in ways that erode public support for legitimate IP enforcement.

        • Murc

          You’re talking about how long IP protection should last; cp is talking about what should happen if it’s violated.

          I don’t think you can separate the two like that, though, because in my opinion the violation of IP law assumes drastically different moral weights depending on whether or not you are literally stealing from current artists or whether you’re “stealing” from a corporate entity that has re-written copyright law to allow it to profit in perpetuity from the works of an artist who created most of his enduring works before your parents were born and died before YOU were born.

          • Lee Rudolph

            a corporate entity that has re-written copyright law to allow it to profit in perpetuity from the works of an artist who created most of his enduring works before your parents were born and died before YOU were born.

            Speaking of such matters, I just read an article about the growth of “ghost trusts” in the 23 states (so far) that have (according to the article) abolished or eviscerated the “rule against perpetuities”.

            It’s a grand thing to be able to commission laws to your specifications!

            • LWA

              Veering off topic, this is why I propose that, just as mining regulations are written by mining lobbyists, we should have welfare recipients write the rules regarding SNAP, TNAF and Section 8 housing.
              Minimum wage employees should write the regulations for the Labor Department, and submit a finished bill to Congress for fast track rubber stamp approval.

              Funny thing though- this proposal never gets traction with the “run gummint like a bidness” types.

              • Bruce B.

                Oh, I am so going to quote this when it comes again. Thank you, LWA.

    • wengler

      Because patents are different than copyright and trademark and grand theft auto. I shudder to think that patent trolls would have the ability to land someone in prison.

      • Gwen

        Indeed.

        I was joking above re: missiles. But it does get to some relevant point I think.

        Intellectual property, particularly of the artistic kind, is notoriously hard to value. This is partly because its value derives from how many copies/clicks/whatever it gets. When a musician records a new song, there is no way to know if it will be a flop or a hit. Rarely are books and movies “sure things.”

        Furthermore, no two songs are exactly alike. You can’t value one based on the market-price of another.

        Tangible property on the other hand is usually measured by market value of an item of similar functional and aesthetic quality. If I take a chainsaw to your kitchen table, I can probably get you a new kitchen table of equal or greater value (provided its not an edge case like a family heirloom). Usually this would involve going to IKEA and seeing what wonderful new table technology the Scandinavians have invented.

        But you can’t do that with intellectual property. It’s not easily replaceable (but oddly it can be reproduced in exact copies, see below)

        So if you were to take the perspective that it should be treated the same of tangible property, then you enter into a world of hurt trying to value it.

        And I think that’s one of the rationales for going with harsh penalties — it avoids a lot of messy calculations about actual market-value.

        More importantly, though, is that intellectual property can be easily reproduced. So if you download one MP3 file, you could easily pass it on to a million of your closest friends. There is the potential for enormous economic harm (even if this doesn’t actually exist).

        This is kinda what I was getting at when I made the joke about missiles above.

        I think this is also an important rationale for the harsh penalties.

        • patrick II

          I wish I had a better memory so I could be more specific. But I saw John Oliver talking about a cigarette company suing a country because they put pictures of a diseased lung on a cigarette package. The country had found written warnings inadequate in its attempt to lower smoking rates. So the company sued them for copyright infringement, saying that their company’s property (the logo or whatever for the company) had been damaged by the cigarette packaging. The company had more money than the small country and the country backed down. Oliver helped them by creating a diseased lung cartoon character and doing ads against cigarettes in the country.
          Anyhow, that sort of abuse, cigarette companies suing to protect their “property” to make sure governments without the resources to fight them are forced to allow their citizens to die of lung cancer, is a type of abuse that can happen. We make fun of the right-wingers for being afraid of “one world” government, but when treaties we have no say in overrules our country == or more likely some country not able to fight of large corporations — it is not so funny.

    • Snarki, child of Loki

      ” if I steal your car, it’s a criminal act, if convicted, I may well spend time in jail. if, on the other hand, I put your car through a 3D copying machine, YOU still have a car, but so do I!”

      Now, if you “stole” the engine plans, and at the same time, destroyed/erased the plans held by the owner, THAT would be equivalent to the “stealing your car”.

    • mark

      Be careful how this is framed. The example of “stealing the plans for a new engine” is very specific, and basically implies actual criminal activity under any definition (trespass, hacking, buying stolen goods if the plans are filling a briefcase, etc.) The actual IP violation is using this in your new engine design, not the theft.

      Note that if the design is patented, you are still violating IP if you get the details legally (ie, read the patent, which is public, or buy the engine.) In fact, it’s an IP violation if you invent the same technology independently and didn’t even know another version. Indeed, even more so than copyright talking about a “patent thief” really doesn’t make sense even as a metaphor.

      While type of IP matters, I do think the vast grey area when it comes to IP is fundamental difference in many cases. I know if I’ve stolen a physical good. Whether my design is “new enough” or an existing patent is too broad to be enforceable requires a lot of litigation and giving just one side in a dispute the power to threaten criminal sanctions is not a good idea.

  • liberalrob

    The criminalization of IP infringement in a multilateral agreement would give the United States legal teeth for enforcing its preferred system of intellectual property protection across the world.

    As if we needed more reasons to oppose the TPP.

    The lawyers at the RIAA and MPAA must be champing at the bit.

    • Gwen

      Undoubtedly.

      I was looking into the possibility recently of building a low-power (100 mW) AM transmitter kit, and starting my own neighborhood radio station under Part 15 of the FCC rules (you can get a mile or two range if you know what you are doing — I am a licensed ham radio operator, and specialize in low power ops, so “rocking the suburbs” seemed like an interesting technical challenge).

      Unfortunately, it occurred to me that ASCAP and BMI might object to that. So I went and looked up their rates. ASCAP hasn’t figured out that nerd hobbyists are an issue, but BMI wants $238 per year for a blanket license, and right now that just covers the composer/songwriter! (Remember, there are currently no performance royalties paid to the artist/record label).

      Note that their Part 15 license fee is even higher than what they charge Internet radio stations, which can potentially reach billions of people. And I think it’s higher than what ASCAP charges college radio stations.

      Given that the biggest use of Part 15 is by people who are, say, using FM-band dongles to play their CDs over the car radio, I wonder if BMI hacks are planning on trying to collect license fees from all sorts of unknowing people.

      I wrote an e-mail to my Congressman (as well as Congressman Nadler, who is trying to push music-royalty reform bills so that Taylor Swift can get all of her goddamn money) suggesting that a blanket exemption for Part 15 unlicensed operators should be made in the copyright laws. I doubt I’ll get any kind of response. Giving away freebies to average Americans, isn’t the sort of thing Congress will do.

  • LWA

    This provision illustrates pretty well the nonsense of those who argue that a global agreement on wages and worker safety is unpossibly difficult.

    Somehow reaching accord on what constitutes intellectual property, agreeing to how it should be covered and who covers is all within the realm of the possible.

    But reaching agreement to pay a minimum wage for products to be imported? Absurd! Can’t happen!

    • Snarki, child of Loki

      If only there were some billion dollar corporations pushing for those worker safety protections, in the secret TPP negotiations.

  • Latverian Diplomat

    It seems that one US goal for the TPP is to use it to push our stupidly permissive and unworkable ideas about software and business method patents on to more of the world.

    Also, the desire to have other countries agressively protect trade secrets is almost certainly to enable even more movement of export of US high tech manufacturing out of the US. Some companies still keep their factories in the US because they have trade secrets any factory employee could walk out the door with in China, etc., with little legal recourse.

  • zoomar

    Does anyone have any idea what the Obama negotiators are willing to trade for such international IP protection? I mean, who’s left to throw under the bus for this? Everyone who was ever employed making stuff to export has already lost their job to the maquiladoras or China.

    • elm

      They’ve already offered to reduce the protection given to the sugar industry. They’ll probably offer similar movement on limited agricultural products. Apparently, the odious dispute settlement procedure where private parties can sue states is on the block, too, though I don’t know if that’s related to the IP issue (it would be nice to get rid of both but if it’s a choice between the two, I think I’d rather get rid of the iSDS than the IP stuff.)

      Beyond that, I think the tools the US has is to threaten to walk or threaten to finish the TPP without the objecting countries. There has already been suggestions that Canada could be left out if they don’t reduce their agricultural protection more, although it’s not really the US asking for that (Australia and NZ are pushing the most on that issue.)

      • Murc

        Apparently, the odious dispute settlement procedure where private parties can sue states is on the block, too

        Well, the dispute settlement procedure isn’t odious because private parties can sue states. Indeed, we want to make it easier for private parties to do that, not harder, and Erik every week hammers on the need for an international legal regime to enforce labor protections.

        The odious part is that the treaty makes states liable for loss of profits incurred when they attempt to reign in the rapacity of corporations. And that’s complete bullshit.

        • LWA

          Maybe we should re-word it so instead of being liable for loss of profits, we make it “loss of wages” for workers displaced by businesses that relocate?

          HAHAHA yeah I know, that would be theft, or communism, or trading in babyparts or something.

  • Lee Rudolph

    Isn’t it a truism of political analysis to arrange relations with your potential adversaries within the same party so that “IP in the TP” is just what doesn’t happen?

  • MacK

    Intellectual Property in international trade has always been an interesting animal – and the US was in the past decidedly unenthusiastic about enforcing IP rights. Indeed that many of the early patriots were printers has a lot to do with the fact that the Americas was the worldwide center for book-piracy, and they feared the extension of copyright law to the colonies (many had been forced out of the previous piracy center of Dublin when English copyright law was extended to Ireland.)

    The United States until the early 20th century was notorious for pirating inventions and technology from European companies. Publishing too had a requirement that to have copyright protection, books had to be printed in the US. Until very recently, the U.S. opposed geographic designations of origin – because major US conglomerates made ‘fake’ versions of parmesan, etc. – while at the same time vigorously defending Trademarks (the Economist magazine used to publish some howling stupid articles on this topic, as did numerous US publications.) To this day design rights protection in the US is notoriously weak because US retailers like being able to rip-off fashion designs from other smaller designers.

    There is a basic problem with the US position on IP rights – and that is that the enforcement demanded is also very one-sided. The US is not about to offer or demand enforcement of the rights that many US companies want to be able to infringe.

  • mikeSchilling

    Stop being such a Luddite; we wouldn’t have the internet without TPP/IP.

  • j_kay

    The problem with our IPP system is that it’s over the top corrupt. For its length and everything else. This’d spread that perfection of corruption to all the signatories.

    Think reextension of copyright so Disney’s Mouse can still be covered is good?

    The problem with far too-long IP protection periods is that new Disneys and
    Apples can’t happen. And nothing ever goes public, totally bad.

    • JonH

      “The problem with far too-long IP protection periods is that new Disneys and
      Apples can’t happen.”

      Access to Mickey Mouse isn’t an obstacle to a “new Disney” arising. A new Disney would be doing something different, not beating the long dead horses of Disney’s old IP. If you can’t come up with new stories and characters, you’re not going to be the new Disney anyway.

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