Son-of-ACTA, the TPP, wants to legislate buffers

Ars Technica's Nate Anderson takes a good look at the Trans-Pacific Partnership, the secret copyright treaty whose latest negotiation round just took place in Hollywood (see last night's post about the scandalous abuse of authority by the US Trade Rep in bullying the hotel to keep out civil society groups).

Now, this is a secret treaty, so we don't know most of what's going on in the room, but one jaw-dropping leak is that that the treaty contemplates requiring licenses for ephemeral copies made in a computer's buffer. That means that the buffers in your machine could need a separate, negotiated license for every playback of copyrighted works, and buffer designs that the entertainment industry doesn't like -- core technical architectures -- would become legally fraught because they'd require millions of license negotiations or they'd put users in danger of lawsuits.

This isn't the first time that buffer licensing was proposed. Way back in 1995, the Lehman white paper, proposed by Clinton's copyright czar to Al Gore's National Information Infrastructure committee, made the same demand. It was roundly rejected then, because the process was transparent and the people who would be adversely affected by it (that is, everyone) could see and object to it.

This is about legislating chip designs and software architecture, and the only people allowed in the room are entertainment execs. The future of silicon itself hangs in the balance. Will Intel and other giants demand a fair, transparent, equitable negotiation process?

Last year, versions of the TPP's US-written IP chapter leaked; its provisions went well beyond even ACTA, which was already the new high-water mark for IP enforcement. Where do things stand now? Are the other TPP countries on board with the US approach? Who knows! It's all secret.

While ACTA at least claimed not to exceed US law, Flynn and other professors allege that the leaked TPP IP chapter does go beyond what's in US law, doing things like extending copyright protection even to temporary "buffer" copies so crucial to digital devices.

As for USTR, it claims to be conducting "an unprecedented fifty-state domestic outreach strategy for TPP," and it's even hosting a largely worthless TPP blog. People can send comments to USTR through a special Web form, and negotiators do take in presentations from civil society groups on some occasions.

Beyond ACTA: next secret copyright agreement negotiated this week—in Hollywood



        1. That wouldn’t work. Their cameras were not allowed (be able) to play back copyrighted songs without a DRM (license).

    1. Makes me want to start a witch hunt and we burn all the execs of these companies that are trying to steal our souls to make a profit. I will not stand for bureaucrats putting us in a dark age simply to make an ungodly amount of money. This sort of thing makes me want to pirate and find ways to destroy the media business forever. 

  1. An industry representative, speaking off the record, revealed that there was concern within the industry that the TPP did not go far enough. “Buffer licensing addresses the problem of ephemeral copies of copyrighted works created in memory. Obviously, that’s a loophole we need to plug. But what about the ephemeral impressions created in the human sensory system when someone views or listens to a copyrighted work? Scientific studies exist to show that people may mentally re-evoke images that they have seen, or hum fragments of tunes to themselves, thus bypassing one-time licensing agreements and creating a potentially vast market for infringement. We’ve calculated the losses to the industry resulting from this kind of unauthorized use and, frankly, they’re staggering.”

    A forthcoming piece of legislation, the Personally-Oriented Listening License for Transient Audio eXploitation (POLL-TAX Act), proposes to address this problem for audio recordings by imposing an annual levy on any person capable of hearing and recalling a tune. The motion picture and television industries are said to be working with their representatives in Congress to draft similar legislation for visually-based copyrighted works.

    1.  I can’t believe they would actually do the math and present that as a financial loss. You’re losing money because someone is at home humming a tune? How big brother can you get music industry? 

      And we were worried the government might be watching us to quell an uprising. Sounds like the government will be imprisoning people for singing Britney songs, not protesting for safe streets and equal education. 

    2. This is exactly what was missing in Fahrenheit 451 – i.e. the ‘Book People’ loophole. It needs to be plugged before you start burning all unlicensed originals, before it occurs to folk to commit the stuff to memory.

  2. When I first read the headline, I thought, ‘no way is he talking about memory buffers.’  WTFF.

    So long as Congress members are voting themselves a pay raise, maybe they should spend that grossly unearned income on CS courses.

    1. There’s a small flaw in your plan there.  You’re assuming congress critters have the ability to absorb and process new facts and information.

  3.  Not surprise there, as it is basically the same line of thinking that have effectively outlawed deduplication in remote DVR services. It is very clear that either the leadership or their lawyers (or deity forbid, both) still think in physical terms when it comes to these things.

  4. And I’d like a million dollars….

    Oh, can’t get me a million, how about a couple of grand?  Seems more reasonable after the million doesn’t it?

    If this REALLY makes it into anything, I’ll be shocked.

    1. Prepare to be shocked then. Most members of US Congress think the Internet is some kind of magical world powered by nargles.  Or tubes, if they’re really old school. Talk to them about ephemera like memory buffers, and you might as well be talking into a bucket.

  5. Why don’t they spend their money making some decent movies instead of funding back room deals?  I wouldn’t even waste my bandwidth for free torrents to watch most of what Hollywood produces these days.

  6. Am I just ignorant of the nuances, or is this as fundamentally insane  as I think it is? I mean, what’s the point? What excuse could the content industry possibly make for this without admitting that the goal is to line their own pockets.

    1.  I know someone who works full time on fighting such stuff, and I have heard this buffer thing come up before. Probably it is because it is a legal loophole that can be used in other arguments.  A lot of effort is spent in such fights in squashing any possible precedent that might weaken laws in the courts. For example, the US tries to get the worst provisions of its FTAs applied universally regardless of the circumstances of the individual country. They figure if they give one country a break, that might come back to haunt them in litigation in another country.

  7. This is not a path to profit. This is just nuts.  Or else the idea is to outlaw everything and assume they can control the purely discretionary prosecutions.  This would prohibit everyone in all effected countries from using any software they ever purchased.

  8. I think people ought to just stop consuming these bastards media until they all go bankrupt, shouldn’t take long, and then when they are all homeless and starving start supporting the actual creators of the media directly.

  9. Cory, they’re taking your article about the coming war-on-general-purpose-computing and using it as an instruction manual!

    Actually, Richard Stallman called it, way back when. (in the 80’s?)  I can’t find the piece of dystopian fiction I’m referring to right now…

  10. These TPP laws would tromp all over my free speech rights as in computer code being self expression. Who knew more than 200 years ago that we would need constitutional protection from rights holders? Thank God they did think of it.

  11. Oh, please, Hollywood, dismiss your wishlist! I would urge the US Office of Trade Representative to throw off such freedom-imposing treaties, and establish a proper transparent negotiations. No process of democracy, involving the people, can not be transparent. Democracy incorporates transparent processes. This can hardly be called democracy, but corporatocracy. So let us not resort to ochlocracy (mobcracy), but to make sure our gov’t listens to us, and that ACTA is abandoned, and TPP dismissed.

  12. Here is a real solution, Hollywood. Change your business model. Rather than make money from selling content, make money from selling propaganda in your movies. For example,  Fendi pays and attractive women carry Fendi bags. If Fendi does not pay, and you drop in something about conspicuous consumption. The same thing could work for just about every other product. It seems like Apple is paying for product placement now.  The music industry could do the same thing. Then, people can worry about REAL products that are counterfeit and leave the internet and computers alone.

  13. Isn’t it bizarre when you think about how recorded music didn’t exist 100-ish years ago? That films are around the same age?

    I’m a musician, and this kind of law would benefit me, but I don’t want it and feel dirty to be in an industry that does. I don’t even particularly like the idea of selling ‘copies’ of music, a thing that doesn’t even exist outside the human mind. Music is a thought, and thought should not be a commodity.

    I honestly think we should just make it illegal to sell art. Art survived on patronage and performance before; it even forced a high standard on it. Making it easy for people to earn a living out of recordings is not worth our freedoms.

  14. Wait wait wait wait wait… So if this treaty is signed, I can actually get convicted for the temporary data that goes through my RAM and my processor?

    Photoshoppers, we need to occupy the WORLD. I know 4Chan wouldn’t stand for copyrighted memes to be illegal.

  15. I believe that this process needs to be more transparent. I added a new petition to the WH site to ask for a better governmental response. Wont be viewable until there are 150 signors. Here is the link

  16. The exact text which was leaked previously (and may have been revised since, as it’s all super-secret) from Article 4 section 1 is

    Each Party shall provide that authors, performers, and producers of phonograms8 have the right9 to authorize or prohibit all reproductions of their works, performances, and phonograms,10 in any manner or form, permanent or temporary (including temporary storage in electronic form).

    A more sensational, but perfectly accurate, headline would be “New treaty requires that users of TVs, computers, cable and satellite boxes, CD/DVD/Blu-Ray players, radios, and amplifiers pay fee to RIAA and MPAA companies”. Or perhaps the punchier “MPAA wants to bring TV tax to US, and into their pocketbooks”.

    They’re also going after the doctrine of first sale.  Here’s section 3 of the same article, as leaked:

    Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the making available to the public of the original and copies of their works, performances, and phonograms through sale or other transfer of ownership.

  17. It isn’t just playback devices; buffer-licensing might create  another avenue to sue ISPs, and also eliminate the loophole by which WiFi owners were not necessarily liable for the use of their network.

  18. Yeah, that’s right, people should pay every time they see a movie, not just be able to buy ONE VHS tape of it! I mean, c’mon, you don’t get to go see the same movie at a theater more than once from one ticket, why should you be able to buy one copy of a movie and watch it on your TV more than once?? And don’t even get me started on VCRs being able to COPY the VHSes!

    …Oh, wait, it’s not the 1970s and we aren’t debating VHS tapes? That’s odd, because it’s the exact same mentality for that side of the argument. You’d have thought we’d be past this inane, greedy, selfish and horrible mindset by now.

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