I’m cataloging some of the misleading, distorting, uninformed and just plain awful reactions to the latest Wikileaked IP chapter of the Trans-Pacific Partnership treaty in a series of blog posts, in order to keep my response down to manageably sized bites.
My general reaction to this pattern of distortion can be found in my response to the previously leaked chapter, here. Frankly, not much has substantively changed since then, except for the ever greater heights of distortion from the IP skeptic crowd.
Perhaps the worst reaction was from Katheryn Thayer at Forbes, and I want to stress that Katheryn identifies herself as “staff” at Forbes, and not just as one of their many authorized bloggers. Katheryn uncritically accepts and then further inflates the inaccurate and policy-sloppy arguments of the IP skeptic activist groups, and her article is much more of an opinion piece. Most problematic, she works from the assumption that the TPP is “the latest threat to digital innovation and free speech online.” That’s just totally unjustified. You don’t get to throw around a charge of threatening free speech without backing it up. But she doesn't.
Where is the “threat to free speech online” from preventing copyright theft? Copyright theft is NOT free speech. Katheryn sloppily identifies enforcement, saying “unfortunately, enforcement often manifests as an attack on freedom of speech.” Say again? What? That's her logical policy bridge connecting IP protection to "threats to free speech."
But the real problematic, muddled policy thinking in Katheryn’s article is equating copyright piracy with the “sharing economy.” She uses as an illustration of why we should not enhance copyright enforcement:
But the TPP interpretation seems behind the times. The “share economy” idea is not limited to Lyft and Airbnb. We live in a world where artists like Radiohead, or more recently, Aphex Twin, choose to distribute their work for free. A whole genre of artists–DJs– play other artists’ songs instead of creating their own. Platforms such as Soundcloud, Tumblr, and Ello enable viral sharing and audience involvement, but cloud attribution. Museums, such as Amsterdam’s Rijksmuseum, are putting their entire catalogues online and encouraging casual browsers to download and appropriate famous artwork into works of their own.
Holy cow. Katheryn, if someone wants to share or give away their content, they’re welcome to and they’ve always been welcome to. You can choose your business model, and you can choose the wrong business model if you want to or are just unwise or unlucky. But there is a very significant legal and ethical difference between sharing with the consent of the creator/owner, and unauthorized taking. In Katheryn’s Airbnb illustration, the difference between sharing with the consent of the creator/owner and unauthorized taking is the difference between using Airbnb legitimately and breaking and entering. When we use sharing economy services like Airbnb, Uber, etc., we are doing so with the consent of the owner, agreeing to certain terms and conditions, and very often we are actually paying for the service as well. That’s orders of magnitude different from unauthorized taking of someone’s house, car, or intellectual property.
And if you can’t see that difference, you shouldn’t be writing on digital policy. Let me just go with that: You shouldn't be writing on digital policy.
There is nothing in the TPP that prevents sharing with the consent of the owner. The TPP does in fact attempt to harmonize IP standards to reflect something more closely approaching existing U.S. law. And that's a legitimate policy goal of a trade agreement.