Obama Negotiates IP Treaty in Secret, Lets Special Interests Run Wild

Last week, a portion of a treaty the White House has been secretly negotiating was leaked and became public. Wikileaks published an August draft of the Trans-Pacific Partnership (TPP) Treaty, and the details are nothing short of unbelievable.

The draft of the TPP Treaty shows that the Obama Administration, written by and for the top 700 special interest lobbyists, has some serious explaining to do. Remember when Obama campaigned on not having lobbyists in the White House? Well now he’s having them write our international treaties.

The Founding Fathers explicitly rejected European conceptions of copyright by instead creating a limited short term for copyright and ensuring that it was also limited in scope. But the Obama Administration, at the behest of Hollywood lobbyists and other special interests, is 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 akin to SOPA/PIPA provisions, and making new beneficial technologies illegal are at issue. 

The White House is trying to fast-track the finalized treaty in Congress, potentially even through an executive agreement thereby bypassing Congress altogether; they know that the American people would never agree to such an extreme, unprecedented deviation from our Founding principles on behalf of special interest lobbyists.

The leaked treaty would expand copyright term lengths around the world, with one proposal of extending copyright terms to life +100; it should be noted that the Founders copyright was 14 years. Life + 100 would appear to be a violation of the Constitution’s requirement of copyright terms being only for “Limited Times.”

The text 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 by, among other uses, allowing for the use of snippets of copyrighted works for the purpose of criticism and comment. Under the proposed treaty, American common law of “fair use,” which is a founding principle of American copyright law and free speech (and now embodied in statutory law), would instead appear to convert to a pseudo-European copyright based legal doctrine.

The text also includes proposals on intermediate liability that appear to be 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. It was opposed by FreedomWorks (SOPA/PIPA Would Destroy the Internet Freedom), RedState (Stopping SOPA), and Heritage Action (“No” on SOPA and PIPA) as a power grab by special interest lobbyists rather than good policy. Eventually Republicans in Congress killed the bill, but now the Administration is trying a run around through international treaty.

This treaty negotiation additionally 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. Overnight, the use of this technology was made a felony punishable by 5 years in prison and a $500,000 fine. 

This decision came after major wireless companies petitioned for such action 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, the Washington Examiner, technology experts, and our 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 lock in the process that enabled the Librarian of Congress to ban unlocking -- which would ensure that any permanent legislation, such as H.R. 1892, would be impossible (However, Canada did propose an amendment to allow unlocking but as of August no other country supported it). The draft would also keep jailbreaking illegal without permission from the Librarian of Congress (something that is already subject to the Librarian's decisions but would now be enshrined in international treaty). This could make millions of people felons and subject to punishment of up to five years in prison for the crime of installing a different operating system on their phone, tablet, or e-book reader.

Other affected technologies 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).

None of these technologies have anything to do with copyright, but lobbyists think using that term through international treaty will allow them to hoodwink the American people to ban important and beneficial technologies for the free market.

This treaty's provisions were designed to ensure 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. Tying Congress’s hands to ensure that they could never consider conservative reforms to copyright would ensure that Hollywood lobbyists will never have to defend their cronyism.

Last year, the House Republican Study Committee wrote a report calling for restoring constitutional and conservative principles for copyright: shorter copyright terms, reducing statutory damages, and fixing fair use (which I authored). This report was endorsed by nearly every organization on the conservative side.

This spring, the Registrar of the Copyright called for the “Next Great Copyright Act” which 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 held 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. More Americans are starting to realize that special interests have corrupted constitutional copyright to become Mickey Mouse copyright.

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. 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. While Congressional staff were prohibited from reading it, and few members of Congress were aware or able to read the text in their own time, the press and general public were also kept out of the loop. However, we now know that industry lobbyists were given special passes by the White House trade negotiators to access the treaty.

So Congressional staff, press, and the general public aren’t allowed to read this treaty, but special interests could; now we know why. The White House didn’t want the public to know what was being negotiated in their name. 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 (@DerekKhanna) previously worked for the House Republican Study Committee and for Senator Scott Brown (R-MA). He spearheaded the national grassroots campaign on cell phone unlocking. He has spoken widely including at the Conservative Political Action Conference and at the International Consumer Electronics Show.


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