Ron Wyden on Trans-Pacific Partnership, Intellectual Property Law, & Net Neutrality


Yesterday, Brian Doherty covered many of the issues related to the Trans-Pacific Partnership (TPP), a sweeping trade deal currently coursing its way through Congress.

Generally speaking, free trade—or even just freer trade—is a moral and an economic good. As a basic condition of human existence, individuals and companies should have the right to do business with whomever they want to the greatest degree possible. Virtually all economists agree, as Doherty notes, that unilaterally reducing one's own trade barriers helps the country choosing that course of action.

Writing in Wired, Sen. Ron Wyden (D-Ore.) calls out questions related to intellectual property and the criminalization of certain activities under the U.S.'s Digital Millennium Copyright Act (DMCA), a 1998 law that largely favored big-content providers at the expense of users and smaller creators (read Mike Godwin's negative take in Reason on the law here).

Among other things, the DMCA criminalized circumventing encryption and ripping commercially made DVDs, a practice that was and is still perfectly legal for CDs. It also reduced existing safe harbor exemptions for websites that were hosting copyrighted materials, even when it just a user of the site posting the material without any authorization. In concert with The Copyright Term Exenstion Act (CTEA), which lengthened copyright terms significantly and signed around the same time, DMCA was an "Empire Strikes Back" moment in which large, powerful forces in the entertainment and software industries got almost exactly the laws passed they wanted to see passed.

Wyden recognizes the problems with these laws, noting they contain "provisions that go too far to protect copyright at the expense of free speech, digital security and the public good." (It's worth noting that intellectual property laws, as discussed in the Constitution, are explicitly authorized not as real property rights but as a means "to promote the progress of Science and the useful Arts" and guarantee "the exclusive Right" of ownership to holders only for "limited Times.")

The Oregon senator writes,

Activists rightfully criticize the effect of the trade agreements to require trade partners to mirror the U.S. copyright term of 70 years beyond the life of the author. That is far too long.

When it comes to TPP, the Oregon senator says, you've got autocratic regimes such as China and Russia that are actively working to reduce the ability of the internet to traverse naitonal borders and they are working hard to build such electronic fences into TPP.

Even democratic regimes with a lesser history of honoring free speech than the U.S. are proposing unacceptable restrictions on the internet. If the United States lets these countries set the standard that the internet should be subdivided into country-sized pieces, it will devastate digital entrepreneurs in the U.S. and squelch one of the world's most powerful avenues for free speech….

I successfully pushed U.S. trade negotiators to seek new provisions on "limitations and exceptions" on copyright in the Trans-Pacific Partnership negotiation. These new provisions are consistent with what is known as "fair use," and are vital for researchers, journalists, and an informed public….

This bill makes it clear that the US can roll back overly broad IP laws even after they are subjects in a trade negotiation.

As much a press release as an article, the Wired piece also gives Wyden space to discuss Aaron's Law, a bill that he and California Rep. Zoe Lofgren pushed after the suicide of activist Aaron Swartz. Swartz was facing serious jail time for downloading journal files from MIT's system without authorization. Wyden points out that "CIA officials have admitted to hacking Senate files, with no consequences whatsoever."

And so:

Yesterday, [I and Lofgren] reintroduced Aaron's Law, along with Sen. Rand Paul. We won't stop until Congress achieves real reforms in this area. Our bill takes direct aim at heavy-handed prosecutions for non-malicious computer crimes. Violating a smartphone app's terms of service or sharing academic articles should never be punished more harshly than a government agency hacking into Senate files.

That all sounds good to me, and relieves many reasons to be worried about the TPP.But then Wyden uncorks this paean to Net Neutrality that, to be honest, leaves me more than little cold.

When Big Cable wanted to divide the internet into fast and slow lanes, four million internet users told the Federal Communications Commission that the open internet, and net neutrality, needed to remain the law of the land. FCC Chairman Tom Wheeler listened, and we won again.

Together we can stand tall against threats to innovation and free speech, from restrictive copyright, to government plans for backdoors in our private electronics to the cybersecurity bill that is really a surveillance bill in sheep's clothing. With the internet community's continued involvement, we can score another victory by incorporating this open internet principles into global trade policy.

Read the whole story.

The open internet (a lived reality) and net neutrality (an activist fever dream) are hardly the same thing. As the special Reason.com landing page, Don't Tread on My Internet, makes clear, the broad-based reforms comprising net neutrality give the government unprecedented powers to fuck with every aspect of cyberspace and digital communiation broadly speaking.

One of the least-honored agencies ever devised, the FCC is now claiming the ability to regulated the internet using the same Title II classification it uses to regulated old-style telephony. While the currrent chair of the group insists he will used a "light touch" and provide "forbearance" on all sorts of issues, such guarantees are ultimately useless. What if he changes his mind? Or what about the next head of the FCC, an agency that spent a decade litigating Janet Jackson's exposed nipple at the Super Bowl? Net neutrality doesn't represent deliverance from the phantom menace of bad behavior by cable companies (who, by the FCC's own data, have kept upgrading the number and speed of fixed and mobile connections over the past 20 years) but assigns the government the role of gatekeeper of the best tool yet devised for communication and expression.

If you read one article about net neutrality this day, month, or year, make it this one by Geoffrey A. Manne and R. Ben Sperry, which documents just how off-base net neutrality proponents are.

A snippet:

This latest campaign to regulate the Internet is an apt illustration of F.A. Hayek's famous observation that "the curious task of economics is to demonstrate to men how little they really know about what they imagine they can design." Egged on by a bootleggers-and-Baptists coalition of rent-seeking industry groups and corporation-hating progressives (and bolstered by a highly unusual proclamation from the White House), Chairman Wheeler and his staff are attempting to design something they know very little about-not just the sprawling Internet of today, but also the unknowable Internet of tomorrow.

Thanks to Sen. Ron Wyden, the TPP seems much less bad than it would be otherwise.

But there's still a lot of fight to be had regarding the United States' own internet governance.

Related: Ron Wyden one of just two senators to vote against "The Stop Advertising Victims of Exploitation Act" (SAVE), specifically on the grounds that it will chill the internet.