[x-pubpol] Harold Feld waxes biblical on TPP

[Joly MacFie]

http://tales-of-the-sausage-factory.wetmachine.com/ustr-limitations-and-exceptions-proposal-laughably-weak-time-to-get-biblical-prov-2215-on-their-ass/

By Harold Feld

Back in the beginning of July, the USTR made a major policy and rhetorical
shift by actually acknowledging the importance of “limitations and
exceptions” in copyright<http://www.ustr.gov/about-us/press-office/blog/2012/july/ustr-introduces-new-copyright-exceptions-limitations-provision>.
As I noted at the
time<http://arstechnica.com/tech-policy/2012/07/op-ed-eus-rejection-of-acta-subtly-changed-trade-law-landscape/>,
this represented a major victory for opponents of copyright maximalism
given the USTR’s previous refusal to even acknowledge the validity of
limitations and exceptions. While applauding USTR’s positive change in
direction (always make it easy for people to agree with you!), I also noted
that this change was the direct result of ACTA crashing and burning and the
recognition by USTR that any trade agreement must “at least pay lip service
to the vital role of limitations and exceptions in the copyright ecosystem”
if it expects ratification. So while this concession created opportunity to
start turning back the endless erosion of personal rights by the incoming
tide of copyright maximalism, I warned that “the actual language of the
treaty might still undermine limitations and exceptions in practice while
pretending to acknowledge their importance on the surface.” Accordingly, it
would still fall to civil society to “help USTR move down the path of
wisdom by refining the text” and prevent it from backsliding into its
previous position that “limitations and exceptions” is just a fancy way to
say piracy.

Last week, the USTR proposal got leaked <http://keionline.org/node/1516>.
Unsurprisingly, it turns out USTR still needs some hand-holding and
education<http://publicknowledge.org/blog/defining-your-rights-participate-culture-how->
on
what it genuinely means to embrace the value of limitations and exceptions.
Rather than get angry, however, we must approach USTR with the kind of
“tough love” advised by Proverbs
22:15<http://www.mechon-mamre.org/p/pt/pt2822.htm>.
Or, in other words, we just need to get Biblical on their ass — again.

I explain below . . . .

Last week, Knowledge Ecology International <http://keionline.org/> (KEI)
published the leaked text of the U.S. proposal and analysis of what other
countries are proposing <http://keionline.org/node/1516>. My colleague
Rashmi Rangnath has a detailed analysis of the proposal and where it falls
short over at the Public Knowledge
blog<http://publicknowledge.org/blog/defining-your-rights-participate-culture-how->.
Perhaps unsurprisingly, the U.S. proposal (backed by the equally hawkish on
copyright Australia) proposes the bear minimum necessary to comply with
already existing international norms and agreements. The USTR proposal, in
other words, is calculated to do the least possible to protect user rights
while still claiming sufficient recognition of limitations and exceptions
to avoid being labelled a human rights violation.

Nor is it the case that the U.S. is bravely pushing the envelope on
Internet freedom while other countries staunchly resist. To the contrary,
as KEI analysis of leaked documents shows <http://keionline.org/node/1516>,
the U.S. still remains the most pro-Copyright Maximalist party in the
negotiations. The majority of countries want far greater protection for the
public.

This is not surprising. Remember, the U.S. is not moving down the path of
wisdom willingly. It is being dragged kicking and screaming. To return to
our Biblical theme, Ron Kirk’s reaction to civil society requests to
moderate copyright maximalism have echoed Exodus 5:2 “Who are these civil
society people that I should listen to them? I know not these ‘limitations
and exceptions.’” Now, having had a few plagues land on his head in the
form of the ACTA rejection, we fast forward to Exodus 10:8: “Yes I shall
acknowledge limitations and exceptions; which ones?” And, like Pharaoh, we
can expect some backlash when we say we want all our rights protected
(Exodus 10:10-11). We may also expect the chorus from Hollywood to complain
that we are “never satisfied” and to go all Exodus 14:5. “What is it that
we have done, even acknowledging there might be value in limitations and
exceptions.”

For fellow activists, this is no cause for despair. These negotiations are
an iterative process and it will require many applications of the wisdom of
Proverbs 22:15. “The spirit of USTR is bound with foolishness, but the rod
of correction shall drive it far from them.” In this case, the “rod of
correction” comes in the form of continued pressure that forced USTR to
make the initial concessions in the first place. The combination of
Congress breathing down their neck and the specter or a negotiated
agreement being rejected as a consequence of overreach. At the same time,
an agreement that genuinely embraces limitations and exceptions is much
more likely to get approved by trading partners and get ratified by
Congress and our trading partners. It will also save a lot of time in
useless negotiation. How many more ACTAs, oh USTR, must you negotiate
before you learn wisdom? How long, oh other U.S. trading interests, will
you allow Hollywood to drive the crazy train and delay trade agreements you
want and need?

Someday, we will hopefully get to the Isaiah 1:18 and all reason together.
Until then, we should consider the words of Deut 31:6. Be strong and of
good courage, for surely we will kick ass.

Not a sermon, just a thought. <http://www.notasermon.org/default.htm>

Stay tuned . . .

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