Leaked TPP Investment Chapter Reveals Serious Threat to User Safeguards
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It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working.
Maybe an example up front would help. Something like: If this is enacted, then ... (some common use case involving fair use and how it would be impacted).
I know it takes a lawyer to read this stuff. But they should maybe pass it through a couple of layers of translation to try to communicate what it means, so that people can get on board with opposing it, if that's the right thing to do. If EFF can't communicate this stuff, who can?
The specific issue the EFF article is pointing out is how the ISDS is designed to trumps national sovereignty, so business can strong-arm countries into removing any law they don't like.
It works more or less like this:
1) pass TPP as a treaty, which by definition has the same power as a constitutional amendment. (this is probably a serious bug in the constitution). This means TPP trums congress.
2) TPP sets up an international tribunal (ISDS) that hears complaints from businesses. (i.e. "Australia is hurting our tobacco sales with their plain packaging laws"[2])
3) The tribunal, as mentioned in this article, would be staffed by, "three private-sector attorneys who take turns being the judge and the corporate advocate." This conflict of interest would be a serious violation of ethics requirements in most legal systems.
4) The tribunal rules that your local law violates some foreign requirement, as determined by the ISDS and their business-assigned judges, and the local legislature is forced to repeal the law. ("Australia's plain packaging laws is seizing the trademarks of Philip Moriss, in violation of a 1993 trade agreement if we carefully abuse the agreement's language")
That's the short version, and I'm leaving out some details, of course. It should work as a decent overview of ISDS is a threat to national sovereignty.
[1] http://economixcomix.com/home/tpp/
[2] this example is covered well by John Oliver: https://www.youtube.com/watch?v=6UsHHOCH4q8
edit: oops.. s/ISPS/ISDS/
Most legal systems, demonstrated here by the ABA model rules of professional conduct for lawyers, would not consider this a conflict of interest, unless the lawyer were arguing for both sides in the same case. See Rule 1.7.
In these tribunals, government and corporate parties aren't two sides of every fight, they're arbitrary categories of parties. All good legal systems allow private parties to bring suit against the government. NAFTA Ch. 11 is an example of a very similar system working well to address legitimate disputes. See cases where a corporation's claim was rejected, and they were forced to pay attorney's fees to the country they sued in the tribunal. Not exactly the outcome predicted here.
The "tribunals" are arbitral tribunals and as such are manned by lawyers chosen and agreed on by BOTH sides - just like any other arbitral tribunal. They can apportion compensation for damages caused by breaches of international law. No international court can "force" a state to change a law (this is constitution 101), and it is not the case here.
Philip Morris is seeking compensation for the purported expropriation of intellectual property rights (their brand). Almost no-one believes they have any chance of winning. In fact, it seems that they are doing it solely to press for time in other jurisdictions: i.e. some countries are waiting for the result of the arbitration before introducing similar laws. They probably figured out that potential lost profits in foreign markets in that time frame are likely higher than legal fees.
Not one of your points is accurate (and you reference John Oliver and a comic).
Would that nation-state eventually feel pressured to change its laws to avoid crippling fines?
This is not a bug but a feature: the ISDS is designed to ensure that states abide by international law and respect the terms of the free trade agreement they consented to. This is fully in line with the concept of pacta sunt servanda and the relationship between international and municipal law.
Finally, if you are the United States, you can also simply ignore the arbitral tribunal and continue to be in breach of the agreement and international law, because, well, what are they gonna do?
The most egregious, obvious, and deep-cutting error is that you equate money with wealth, which is made obvious when you contrast "investing in the economy" with "just sitting on the money" as if these were two different things. Money is not goods and services; money is a claim on goods and services. Therefore, hoarding or "just sitting on" money is not hoarding goods and services, but closer to the opposite. It is deliberately not commanding the goods and services one's money could command, freeing up those goods and services to be used by others. Hoarding money is a kind of anti-hoarding of resources; it's exactly equivalent to investing in an index fund over the entire economy.
For his reason, your whole argument is confused. Please consider the nature of money more carefully and stop misleading people.
Note: I'm opposed to the TPP, but most certainly not because it promotes "free trade."
http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/...
I found this line in Krugman's text surprising, because there actually are a lot of questions about incentives in both drug and entertainment markets.
In drugs, pharma companies are focusing on high-margin "lifestyle enhancing" drug categories like erectile dysfunction, blood pressure management, and various mood and mental management. Basically, the drugs that rich healthy people will pay a lot of money for. Pharma companies are not focusing on low-margin but highly useful categories like antibiotics, pests, and vaccines. Basically, the problems that affect poor people in 2nd and 3rd world countries.
In entertainment, companies are focusing on iterating well-known and well-used franchises for which they know they can drive immediate demand with marketing. Highly original hits like Inception are not nearly as common as they were in say, the 1970s or 1980s. Instead we get Furious 7 and a two remakes of 21 Jump Street.
Don't get me wrong, the drug and entertainment industries are making a lot of money. But the issue is how they are making it. Drug companies stick to first world problems because first world countries protect their IP, so that is where they'll get a return. Entertainment companies stick to movies that will pack the theater on opening weekend because the movie will be heavily pirated within a few days after that.
I'm not crying for the poor drug or movie executives. I'm saying that the rest of us have to live with the consequences of how we incentivize companies to do business.
edit: word fixes
The EFF often has this problem, IMHO, and I suspect it limits their ability to build support and awareness. I support the EFF; I'm an interested, knowledgable, well-educated person who is accustomed to reading sophisticated prose -- i.e., I'm their ideal audience -- and I gave up after a paragraph. I think they lose a large part of their potential audience.
Matthew Butternick provides the following excellent advice to writers (which applies to much more than typography): http://typographyforlawyers.com/who-is-typography-for.html
I guess I wasn't clear myself (while accusing the EFF of being unclear).
My point is, EFF needs to make this more clear.
I'm not asking for more info about it. I think the EFF should help everybody (they aren't all going to dive into this thread, but lots of people do visit eff.org) understand this, by figuring out a way to present it more concisely and clearly, even though it is admittedly a complex issue.
That being said, I am learning a lot from the comments, and maybe a few others are too; that's great.
Unfortunately when an issue is presented entirely black and white as:
confer expansive powers on corporations and undermine democratic rules
we cannot let such a secretive, corporate-driven agency to pass digital regulations in secret.
etc. etc.
It's hard to come away with any real understanding of the issues at hand.
Disclaimer: I am longtime supporter and EFF member.
I think of them as an "advocacy" nonprofit, and there are plenty of those on the other side as well, trying to make their case against things like government expropriation. The balanced view, to the extent it can exist, would be somewhere between the two sides; each listener synthesizes their own balance point, I guess.
Besides, Russia and China aren't going to sign the TPP anyway, so those excesses are actually completely irrelevant to the effect this treaty would actually have.
Have alternate structures been considered for these extranational tribunals/courts, e.g. who represents the public interest? How would the public grant legitimacy to a secret commercial court which regulates Internet content, for example?
This eventuality is probably why there has been a sharp increase in domestic police militarization, and at least part of the reason the NSA has been allowed to run wild collecting domestic data. COINTELPRO was an effective progrram, and only a fool would believe that after the Curch Committee the program simply evaporated. Like "total information awareness", the names were simply changed and shuffled into different departments.
It would be helpful if a lot more people started recognizing the larger scene that has been unfolding around them instead of clinging to how everything is supposed to be. Those fantasies were bought out a long time ago. As I've mentioned in other threads, "regulatory capture is a helluva drug."
I don't know everything about all _these_ secret negotiations, but the feeling I get when I look at all the past attempts at these super-national laws and treaties is that I dislike and distrust them.
I remember that during the world cup football in South Afrika a group of Dutch women were arrested because they showed up in a stadium dressed in the 'Bavaria jurkjes' (lousely translates to 'Bavaria dresses')[0]. Fifa had super-national laws in place, some of them regarding advertisement. It was apparently illegal for companies to advertise in the stadium during the matches except for the official sponsors. The dresses were seen as advertisement and the people wearing them were arrested.
The women said they were unaware of any advertisement going on, and were just wearing their countries colours.
[0] http://www.telegraph.co.uk/sport/football/world-cup/7830319/...
Edit:
I don't doubt that this was a marketing stunt, still, I decide what I wear and where I do it. Not some entertainment company that should only be concerned with running the sports event and not the money grubbing.
As it happens, I have never understood why prospective host nations allow themselves to be bullied in this way. It is a transparent betrayal of their own populations in favour of big business. Moreover, pragmatically, a lot of these sporting events make an enjoyable spectacle for a lot of people over the few days they last for, but they rarely bring the supposed long term benefits that justify all the hoop-jumping involved in hosting them, and in plenty of cases their legacy has been serious financial and/or infrastructure problems for the host nation.
So yes, it seems long past time for organisations like the IOC and FIFA to be reminded of their place or told to take a hike and host their next international event in West Nowheria. But this is a separate issue to some of the current terms being considered for international agreements, which would reportedly allow any business that didn't like a national policy to sue the national government and recover lost profits in any signatory state.
Those responsible for making policy at international levels are often sufficiently removed from democratic accountability as to be effectively immune from any personal consequences whatever their actions.
National governments can argue that their hands are tied by international agreements that they cannot unilaterally violate, and therefore they are compelled to implement those international policies at home.
The same national governments may in fact have been responsible for voting on or outright appointing the relevant international policy-makers. However, media coverage and public debate rarely explore or challenge these processes.
It appears that this set-up can last indefinitely, until something very bad happens. Of course, some very bad things have happened in Europe in recent years, and national politicians are a lot more careful about expressing their support for EU and Eurozone policies than they used to be.
http://en.wikipedia.org/wiki/Trans-Pacific_Partnership
http://en.wikipedia.org/wiki/Transatlantic_Trade_and_Investm...
Both appear to be utterly toxic.
It sounds like this will make it easier for corporations to extort signatory countries.
As I see it, it will probably promote patent trolls, draconian copyright laws that will be extremely favorable to corporations, etc.
This is really not good at all.
1. It's conducted in secret, i.e. people aren't allowed to learn the content
of the negotiations.
2. From what has leaked so far, it's under heavy influence of lobbying.
E.g. the record industry and Disney lobbying for eternal copyright,
patent-trolls and big pharma for broader patent scope, etc.
3. ISDS is a backdoor through which companies can overrule national laws.
There are lengthy arguments online on the downsides with this. Besides,
it's not like property rights are magically weak in EU/US, they are pretty
strong already.
Reduction/removal of tariffs, tolls etc. are great. I'm strongly in favor of that! But this seems to be mostly a lobbying effort, hidden from public scrutiny.
-- What Europeans can do --
If you live in Europe, I'd suggest emailing thoughtful, well-written comments on the TTIP to the commissioner (weak or angry arguments will only hurt the case).
http://ec.europa.eu/commission/2014-2019/malmstrom/team_en
-- What Americans can do --
EFF suggested contacting D.C. representatives.