7 ms·

In English, anyone? It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's

by natch 12y ago

In English, anyone? It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working. Maybe an example up front would help. Something like: If this is enacted, then ... (some common use case involving fair use and how it would be impacted). I know it takes a lawyer to read this stuff. But they should maybe pass it through a couple of layers of translation to try to communicate what it means, so that people can get on board with opposing it, if that's the right thing to do. If EFF can't communicate this stuff, who can?

rosser 12y ago
If Anticorporatistan enacts a law that Big Evil Co., Inc. thinks might somehow limit its ability to make a profit, Big Evil Co., Inc. can sue Anticorporatistan for the profits it thinks, at its sole discretion, it would lose because of the new law.
- ianlevesque 12y ago
  With Anticorporatistan being the United States, and laws they don't like being the existing Fair Use protections. It's not a vague future hypothetical.
  - shakethemonkey 12y ago
    They don't like fair use, but it is not clear fair use protections could be legislated away without a court overturning any such clause with a first amendment argument. If that were to happen, foreign corporations could sue the US for damages, and win, but no other legal remedy would be available -- they could not stop the fair use from continuing. Maybe they could sue again the following year.
pdkl95 12y ago
The comic[1] that I posted in the previous thread has a nice overview about the situation. The specific issue the EFF article is pointing out is how the ISDS is designed to trumps national sovereignty, so business can strong-arm countries into removing any law they don't like. It works more or less like this: 1) pass TPP as a treaty, which by definition has the same power as a constitutional amendment. (this is probably a serious bug in the constitution). This means TPP trums congress. 2) TPP sets up an international tribunal (ISDS) that hears complaints from businesses. (i.e. "Australia is hurting our tobacco sales with their plain packaging laws"[2]) 3) The tribunal, as mentioned in this article, would be staffed by, "three private-sector attorneys who take turns being the judge and the corporate advocate." This conflict of interest would be a serious violation of ethics requirements in most legal systems. 4) The tribunal rules that your local law violates some foreign requirement, as determined by the ISDS and their business-assigned judges, and the local legislature is forced to repeal the law. ("Australia's plain packaging laws is seizing the trademarks of Philip Moriss, in violation of a 1993 trade agreement if we carefully abuse the agreement's language") That's the short version, and I'm leaving out some details, of course. It should work as a decent overview of ISDS is a threat to national sovereignty. [1] http://economixcomix.com/home/tpp/ http://economixcomix.com/home/tpp/ [2] this example is covered well by John Oliver: https://www.youtube.com/watch?v=6UsHHOCH4q8 https://www.youtube.com/watch?v=6UsHHOCH4q8 edit: oops.. s/ISPS/ISDS/
- rayiner 12y ago
  Treaties do not have "the same power as a Constitutional amendment." They have the same power as ordinary laws. See: http://en.wikipedia.org/wiki/Head_Money_Cases http://en.wikipedia.org/wiki/Head_Money_Cases. And the Constitution takes precedence over both: Reid v. Covert. If they are not self-effectuating and Congress does not pass enabling legislation, they have no domestic effect. See: http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas.
  - gcb0 12y ago
    ...because you don't see any laws that goes against the constitution being ruled everyday.
- thinkmassive 12y ago
  Informative comic, but it could have done without the gun control strawman.
  - seany 12y ago
    That popped out to me too. Seems like a total non-sequitur in an otherwise very informative article.
- mikecb 12y ago
  Rayiner already addressed point 1, so I'll take a swing at 3. Most legal systems, demonstrated here by the ABA model rules of professional conduct for lawyers, would not consider this a conflict of interest, unless the lawyer were arguing for both sides in the same case. See Rule 1.7. In these tribunals, government and corporate parties aren't two sides of every fight, they're arbitrary categories of parties. All good legal systems allow private parties to bring suit against the government. NAFTA Ch. 11 is an example of a very similar system working well to address legitimate disputes. See cases where a corporation's claim was rejected, and they were forced to pay attorney's fees to the country they sued in the tribunal. Not exactly the outcome predicted here.
- nebolo 12y ago
domdip 12y ago
Krugman has a less dense explanation of some of these issues here: http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/?_r=1 http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/...
- snowwrestler 12y ago
  > But do we really think that inadequate incentive to create new drugs or new movies is a major problem right now? I found this line in Krugman's text surprising, because there actually are a lot of questions about incentives in both drug and entertainment markets. In drugs, pharma companies are focusing on high-margin "lifestyle enhancing" drug categories like erectile dysfunction, blood pressure management, and various mood and mental management. Basically, the drugs that rich healthy people will pay a lot of money for. Pharma companies are not focusing on low-margin but highly useful categories like antibiotics, pests, and vaccines. Basically, the problems that affect poor people in 2nd and 3rd world countries. In entertainment, companies are focusing on iterating well-known and well-used franchises for which they know they can drive immediate demand with marketing. Highly original hits like Inception are not nearly as common as they were in say, the 1970s or 1980s. Instead we get Furious 7 and a two remakes of 21 Jump Street. Don't get me wrong, the drug and entertainment industries are making a lot of money. But the issue is how they are making it. Drug companies stick to first world problems because first world countries protect their IP, so that is where they'll get a return. Entertainment companies stick to movies that will pack the theater on opening weekend because the movie will be heavily pirated within a few days after that. I'm not crying for the poor drug or movie executives. I'm saying that the rest of us have to live with the consequences of how we incentivize companies to do business. edit: word fixes
hackuser 12y ago
> It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working. The EFF often has this problem, IMHO, and I suspect it limits their ability to build support and awareness. I support the EFF; I'm an interested, knowledgable, well-educated person who is accustomed to reading sophisticated prose -- i.e., I'm their ideal audience -- and I gave up after a paragraph. I think they lose a large part of their potential audience. Matthew Butternick provides the following excellent advice to writers (which applies to much more than typography): http://typographyforlawyers.com/who-is-typography-for.html http://typographyforlawyers.com/who-is-typography-for.html
natch 12y ago
Hang on just a minute, everybody. I guess I wasn't clear myself (while accusing the EFF of being unclear). My point is, EFF needs to make this more clear. I'm not asking for more info about it. I think the EFF should help everybody (they aren't all going to dive into this thread, but lots of people do visit eff.org) understand this, by figuring out a way to present it more concisely and clearly, even though it is admittedly a complex issue. That being said, I am learning a lot from the comments, and maybe a few others are too; that's great.

by natch 12y ago

rosser 12y ago

If Anticorporatistan enacts a law that Big Evil Co., Inc. thinks might somehow limit its ability to make a profit, Big Evil Co., Inc. can sue Anticorporatistan for the profits it thinks, at its sole discretion, it would lose because of the new law.

ianlevesque 12y ago
With Anticorporatistan being the United States, and laws they don't like being the existing Fair Use protections. It's not a vague future hypothetical.
- shakethemonkey 12y ago
  They don't like fair use, but it is not clear fair use protections could be legislated away without a court overturning any such clause with a first amendment argument. If that were to happen, foreign corporations could sue the US for damages, and win, but no other legal remedy would be available -- they could not stop the fair use from continuing. Maybe they could sue again the following year.

pdkl95 12y ago

The comic[1] that I posted in the previous thread has a nice overview about the situation. The specific issue the EFF article is pointing out is how the ISDS is designed to trumps national sovereignty, so business can strong-arm countries into removing any law they don't like. It works more or less like this: 1) pass TPP as a treaty, which by definition has the same power as a constitutional amendment. (this is probably a serious bug in the constitution). This means TPP trums congress. 2) TPP sets up an international tribunal (ISDS) that hears complaints from businesses. (i.e. "Australia is hurting our tobacco sales with their plain packaging laws"[2]) 3) The tribunal, as mentioned in this article, would be staffed by, "three private-sector attorneys who take turns being the judge and the corporate advocate." This conflict of interest would be a serious violation of ethics requirements in most legal systems. 4) The tribunal rules that your local law violates some foreign requirement, as determined by the ISDS and their business-assigned judges, and the local legislature is forced to repeal the law. ("Australia's plain packaging laws is seizing the trademarks of Philip Moriss, in violation of a 1993 trade agreement if we carefully abuse the agreement's language") That's the short version, and I'm leaving out some details, of course. It should work as a decent overview of ISDS is a threat to national sovereignty. [1] http://economixcomix.com/home/tpp/ http://economixcomix.com/home/tpp/ [2] this example is covered well by John Oliver: https://www.youtube.com/watch?v=6UsHHOCH4q8 https://www.youtube.com/watch?v=6UsHHOCH4q8 edit: oops.. s/ISPS/ISDS/

rayiner 12y ago
Treaties do not have "the same power as a Constitutional amendment." They have the same power as ordinary laws. See: http://en.wikipedia.org/wiki/Head_Money_Cases http://en.wikipedia.org/wiki/Head_Money_Cases. And the Constitution takes precedence over both: Reid v. Covert. If they are not self-effectuating and Congress does not pass enabling legislation, they have no domestic effect. See: http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas http://en.wikipedia.org/wiki/Medell%C3%ADn_v._Texas.
- gcb0 12y ago
  ...because you don't see any laws that goes against the constitution being ruled everyday.
thinkmassive 12y ago
Informative comic, but it could have done without the gun control strawman.
- seany 12y ago
  That popped out to me too. Seems like a total non-sequitur in an otherwise very informative article.
mikecb 12y ago
Rayiner already addressed point 1, so I'll take a swing at 3. Most legal systems, demonstrated here by the ABA model rules of professional conduct for lawyers, would not consider this a conflict of interest, unless the lawyer were arguing for both sides in the same case. See Rule 1.7. In these tribunals, government and corporate parties aren't two sides of every fight, they're arbitrary categories of parties. All good legal systems allow private parties to bring suit against the government. NAFTA Ch. 11 is an example of a very similar system working well to address legitimate disputes. See cases where a corporation's claim was rejected, and they were forced to pay attorney's fees to the country they sued in the tribunal. Not exactly the outcome predicted here.
nebolo 12y ago

domdip 12y ago

Krugman has a less dense explanation of some of these issues here: http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/?_r=1 http://krugman.blogs.nytimes.com/2015/03/11/tpp-at-the-nabe/...

snowwrestler 12y ago
> But do we really think that inadequate incentive to create new drugs or new movies is a major problem right now? I found this line in Krugman's text surprising, because there actually are a lot of questions about incentives in both drug and entertainment markets. In drugs, pharma companies are focusing on high-margin "lifestyle enhancing" drug categories like erectile dysfunction, blood pressure management, and various mood and mental management. Basically, the drugs that rich healthy people will pay a lot of money for. Pharma companies are not focusing on low-margin but highly useful categories like antibiotics, pests, and vaccines. Basically, the problems that affect poor people in 2nd and 3rd world countries. In entertainment, companies are focusing on iterating well-known and well-used franchises for which they know they can drive immediate demand with marketing. Highly original hits like Inception are not nearly as common as they were in say, the 1970s or 1980s. Instead we get Furious 7 and a two remakes of 21 Jump Street. Don't get me wrong, the drug and entertainment industries are making a lot of money. But the issue is how they are making it. Drug companies stick to first world problems because first world countries protect their IP, so that is where they'll get a return. Entertainment companies stick to movies that will pack the theater on opening weekend because the movie will be heavily pirated within a few days after that. I'm not crying for the poor drug or movie executives. I'm saying that the rest of us have to live with the consequences of how we incentivize companies to do business. edit: word fixes

hackuser 12y ago

> It's really hard to follow this. I realize they are trying to make it an explanation that normal (but interested) people can read. But it's not working. The EFF often has this problem, IMHO, and I suspect it limits their ability to build support and awareness. I support the EFF; I'm an interested, knowledgable, well-educated person who is accustomed to reading sophisticated prose -- i.e., I'm their ideal audience -- and I gave up after a paragraph. I think they lose a large part of their potential audience. Matthew Butternick provides the following excellent advice to writers (which applies to much more than typography): http://typographyforlawyers.com/who-is-typography-for.html http://typographyforlawyers.com/who-is-typography-for.html

natch 12y ago

Hang on just a minute, everybody. I guess I wasn't clear myself (while accusing the EFF of being unclear). My point is, EFF needs to make this more clear. I'm not asking for more info about it. I think the EFF should help everybody (they aren't all going to dive into this thread, but lots of people do visit eff.org) understand this, by figuring out a way to present it more concisely and clearly, even though it is admittedly a complex issue. That being said, I am learning a lot from the comments, and maybe a few others are too; that's great.