TPP final negotiated text – IP chapter • Hacker News Board

Re: TPP final negotiated text – IP chapter

#11

Post by bediger4000 » Fri, Oct 09, 2015, 2:33 PM UTC

sp332 wrote: post #5

acqq wrote: post #2

"Article QQ.H.7: {Criminal Procedures and Penalties}" "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:" "(b) significant acts, not carried out for commercial advantage or fina…

It does say "on a commercial scale", so it has to be big. However, I think using bittorrent counts since you are offering to upload the file to anyone on the internet who asks for it. Just singing it at a single private party wouldn't be included, but a restaurant chain singing it for every birthday party would. Not sure what "prejudicial impact" means, but it's probably something that would keep people from buying t…

so it has to be big

I think you're putting too much faith in the usual meaning of words. Think about the wording of the US Constitution's 2nd Amendment (or 4th Amendment) and how different the legal meaning is from what someone who isn't a lawyer would expect.

I bet that "commercial scale" is "at least on the scale of that guy selling knock-off Nikes out the back of his van" after we make it through the courts.

Re: TPP final negotiated text – IP chapter

#12

Post by bediger4000 » Fri, Oct 09, 2015, 2:37 PM UTC

hwstar wrote: post #9

ColinDabritz wrote: post #3

This definitely feels like a political end run, going back on humanitarian progress we've recently made such as on generic drugs. Treaties as a way around that pesky will-of-the-people thing. "Oh we can't go back on that, we signed a treaty. Sorry about your justified outrage."

You can always decide to exit a treaty. If enough people voted in representatives willing to exit the treaty it would be done. The TPP isn't a real treaty as that requires a 2/3 vote in the Senate its what's known as a trade promotion authority. Constitutional amendments trump treaties. If anything is found to be unconstitutional in the treaty by SCOTUS, then the treaty may need to be broken.

All of your points amount to equivocation.

True, the US can decide to exit a treaty. How likely is that, in this case? Not very.

TPP is not a real treaty, but it carries the force of a treaty.

Is the SCOTUS likely to find something unconstitutional? Again, it's true that SCOTUS could dump the TPP, but I think it's highly unlikely, given court's deference to intent of legislation, will of the legislators,etc etc.

The TPP just reeks not only of end-run around the will of the people, but manufactured consent as well.

Re: TPP final negotiated text – IP chapter

#13

Post by [deleted] » Fri, Oct 09, 2015, 2:43 PM UTC

sp332 wrote: post #5

acqq wrote: post #2

"Article QQ.H.7: {Criminal Procedures and Penalties}" "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:" "(b) significant acts, not carried out for commercial advantage or fina…

It does say "on a commercial scale", so it has to be big. However, I think using bittorrent counts since you are offering to upload the file to anyone on the internet who asks for it. Just singing it at a single private party wouldn't be included, but a restaurant chain singing it for every birthday party would. Not sure what "prejudicial impact" means, but it's probably something that would keep people from buying t…

[deleted]

Re: TPP final negotiated text – IP chapter

#14

Post by hwstar » Fri, Oct 09, 2015, 2:44 PM UTC

bediger4000 wrote: post #12

hwstar wrote: post #9

Earlier quoted context omitted.

You can always decide to exit a treaty. If enough people voted in representatives willing to exit the treaty it would be done. The TPP isn't a real treaty as that requires a 2/3 vote in the Senate its what's known as a trade promotion authority. Constitutional amendments trump treaties. If anything is found to be unconstitutional in the treaty by SCOTUS, then the treaty may need to be broken.

All of your points amount to equivocation. True, the US can decide to exit a treaty. How likely is that, in this case? Not very. TPP is not a real treaty, but it carries the force of a treaty. Is the SCOTUS likely to find something unconstitutional? Again, it's true that SCOTUS could dump the TPP, but I think it's highly unlikely, given court's deference to intent of legislation, will of the legislators,etc etc. The…

I'm not trying to argue that the TPP isn't bad. It is. Nor am I trying to conceal the truth on anything regarding the mechanisms of government. I just wanted to state that there are ways to control the TPP should it get voted in.

Re: TPP final negotiated text – IP chapter

#15

Post by fiatpandas » Fri, Oct 09, 2015, 2:46 PM UTC

acqq wrote: post #2

"Article QQ.H.7: {Criminal Procedures and Penalties}" "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:" "(b) significant acts, not carried out for commercial advantage or fina…

Only thing I can think of is operating a website that allows the uploading and sharing of copyrighted material with no protection or discretion (Mega*). Or creating something like a Napster, or a Grooveshark, maybe.

Re: TPP final negotiated text – IP chapter

#16

Post by [deleted] » Fri, Oct 09, 2015, 2:47 PM UTC

acqq wrote: post #2

"Article QQ.H.7: {Criminal Procedures and Penalties}" "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:" "(b) significant acts, not carried out for commercial advantage or fina…

[deleted]

Re: TPP final negotiated text – IP chapter

#17

Post by clarkmoody » Fri, Oct 09, 2015, 2:50 PM UTC

Criminal penalties agreed upon at the international level basically cede national sovereignty to the "collective" of nations. The individual has nearly no recourse against such crimes, since an appeal would need to go to Congress to change the terms of the treaty.

Re: TPP final negotiated text – IP chapter

#18

Post by tedunangst » Fri, Oct 09, 2015, 2:57 PM UTC

acqq wrote: post #2

"Article QQ.H.7: {Criminal Procedures and Penalties}" "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:" "(b) significant acts, not carried out for commercial advantage or fina…

It doesn't specify what the penalty must be, however (does it?). For example, US Code, in the criminal section (506) it says:

    (d) Fraudulent Removal of Copyright Notice. — 
    Any person who, with fraudulent intent, removes or
    alters any notice of copyright appearing on a copy
    of a copyrighted work shall be fined not more than $2,500.

They could make singing the wrong song a $20 penalty and presumably still comply with the treaty.

Re: TPP final negotiated text – IP chapter

#19

Post by ISL » Fri, Oct 09, 2015, 3:00 PM UTC

bediger4000 wrote: post #11

sp332 wrote: post #5

Earlier quoted context omitted.

It does say "on a commercial scale", so it has to be big. However, I think using bittorrent counts since you are offering to upload the file to anyone on the internet who asks for it. Just singing it at a single private party wouldn't be included, but a restaurant chain singing it for every birthday party would. Not sure what "prejudicial impact" means, but it's probably something that would keep people from buying t…

so it has to be big I think you're putting too much faith in the usual meaning of words. Think about the wording of the US Constitution's 2nd Amendment (or 4th Amendment) and how different the legal meaning is from what someone who isn't a lawyer would expect. I bet that "commercial scale" is "at least on the scale of that guy selling knock-off Nikes out the back of his van" after we make it through the courts.

When the the practical implementation of a law does not align with the meaning of the words in the law, we all lose.

This is doubly so with a proposed law, where the implementation can easily change to reflect what the words do mean.

Re: TPP final negotiated text – IP chapter

#20

Post by hammock » Fri, Oct 09, 2015, 3:01 PM UTC

acqq wrote: post #2

"Article QQ.H.7: {Criminal Procedures and Penalties}" "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. In respect of willful copyright or related rights piracy, “on a commercial scale” includes at least:" "(b) significant acts, not carried out for commercial advantage or fina…

An interesting discussion: http://www.justinhughes.net/IPSC2009/pdf/Saw-Cheng.pdf

According to that paper, such language isn't new. Australia (Copyright Act 1968), Singapore (Copyright Act 1987), and the US (Copyright Act 1976 as amended by No Electronic Theft Act 1997) provide criminal penalties for prejudicial infringements even though they may not result in financial gain or commercial advantage.

Compare the UK (CDPA 1988) and the EU (IPRED2 2005), which generally exempt non-commercial infringements from criminal liability.