Final TPP Text Confirms Worst Fears: Shadowy Agreement Poses a Grave Threat to the Internet and Freedom of Expression

Early this morning, the government of New Zealand released the final negotiated text of the controversial Trans-Pacific Partnership agreement (TPP.)

Evan Greer, campaign director of Fight for the Future, said, “Now that we can read the final TPP text, it's obvious why it was kept in total secrecy for so long: this agreement is a wishlist for powerful special interests and multinational corporations. The Intellectual Property chapter confirms our worst first about the TPP's impact on our basic right to express ourselves and access information on the Internet. If U.S. Congress signs this agreement despite its blatant corruption, they'll be signing a death warrant for the open Internet and putting the future of free speech in peril.”

Fight for the Future has been at the forefront of a massive coalition of groups that oppose the TPP, and has organized a wide range of high profile actions against the agreement. As an organization that works to protect the Internet, many of our concerns focus on the Intellectual Property chapter, which reads as if it were written directly by by lobbyists from Hollywood, the record indsutry, and big pharmaceutical companies (because it was.)

Here are several sections of grave concern based on our initial read of the final released text. There are undoubtedly other serious issues in the TPP that will be surfaced as technologists and experts read more deeply.

Article 18.26: Term of Protection for Trademarks
Increases the minimum protection for trademarks to 10 years, forcing countries to follow the U.S. model on this rather than make their own trademark policy based on the public interest. This will limit technological innovation and could curtail affordable access to medicines or other basic necessities.

Article 18.37: Patentable Subject Matter
Allows for the patenting of "new methods of using a known product," which essentially allows for unlimited patents from Pharmaceutical companies and will block affordable access to medicines and medical procedures and prevent innovation of better and more affordable healthcare procedures.

Article 18:28: Domain Names
This undermines anonymous online expression by requiring governments to keep a public database of real names and addresses associated with country code top level domain names, (such as .us, .au, .ca, etc). This is dangerous especially for the ability of opposition groups in repressive countries to voice their concerns online without fear of violent retribution.

Article 18.63: Term of Protection for Copyright and related Rights
This is one of the most egregious pieces of the deal. It forces the most draconian parts of the U.S.'s broken copyright system on the rest of the world without expanding protections for fair use and free speech. This section requires countries to enforce copyright until 70 years after the creator’s death. This will keep an enormous amount of information, art, and creativity out of the public domain for decades longer than necessary, and allow for governments to abuse copyright laws to censor online content at will, since so much of it will be copyrighted for so long.

Article 18.68: Technological Protection Measures
This section attempts to make it a crime to circumvent any "Digital Rights Management" (DRM) locks on a device, even if you own it. It could criminalize people who unlock their phones in order to use accessibility software, for example, or make it illegal to circumvent DRM on a computer in order to use Linux.

Article 18.69: Rights Management Information
This section criminalizes basic activities that involve removing a Rights Management marker, even if it’s done in the process of creating something totally legal. For example, cropping a photo that has a watermark on it in order to use it as part of a fair use creation or as part of a political protest. And yes, that does include if you give credit elsewhere (like the description of a YouTube video).

Article 18.78: Trade Secrets
Criminalizes the "unauthorized and wilful disclosure of a trade secret including via a computer system." This is clearly intended to stifle whistleblowers and journalism covering the documents they expose -- it could criminalize, for example, The Guardian's reporting on the documents they received from Edward Snowden.

Section J: Internet Service Providers
This is one of the worst sections that impacts the openness of the Internet. This section requires Internet Service Providers to play "copyright cops" and assist in the enforcement of copyright takedown requests -- but it does not require countries to have a system for counter-notices, so a U.S company could order a website to be taken down in another country, and there would be no way for the person running that website to refute their claims if, say, it was a political criticism website using copyrighted content in a manner consistent with fair use.

Section J makes it so ISPs are not liable for any wrongdoing when they take down content -- incentivizing them to err on the side of copyright holders rather than on the side of free speech.

Additionally, the Trans-Pacific Partnership’s chapter on investments includes intellectual property as a matter that can be included in investor-state dispute settlements (ISDS).

Article 9: Investor-State Dispute Settlement
No matter what else is in the Trans-Pacific Partnership, this section makes it bad for people everywhere. It allows companies to sue governments — but not the other way around. These legally-binding challenges are decided by arbitrators hired for that case only, and investors have every reason to stack the cases with as many standards violations as they’d like. Intellectual property is just one of the many things that investors can bring suits over, but we could soon see cases of investors suing governments because they think punishments and rewards for copyright or trademark violations aren’t enough to satisfy them. Decisions that impact the future of the Internet should never be made in secretive international tribunals — especially not ad hoc ones.

Additional background:

Fight for the Future is a digital rights nonprofit that has driven more than 130,000 emails and more than 15,000 phone calls to Congress opposing the TPP  in recent months, rallied more than 7,500 websites for an online protest, and helped coordinate a letter to Congress from more than 250 tech companies expressing transparency and tech related concerns about Fast Track legislation.

The group made headlines in March when they flew a 30’ blimp over several of Senator Ron Wyden’s town hall meetings calling for him to “Save the Internet” by opposing Fast Track for the TPP, and then parked a Jumbotron on capitol hill to display the viral video they made about the stunt. More recently, Fight for the Future made a splash on the hill when they delivered actual rubber stamps to every house Republican’s office with a mock letter from President Obama asking Congress to “please rubber stamp my secret trade agenda.