The Trans-Pacif­ic Part­ner­ship agree­ment (TPP) pos­es mas­sive threats to users in a dizzy­ing num­ber of ways. It will force oth­er TPP sig­na­to­ries to accept the Unit­ed States’ exces­sive copy­right terms of a min­i­mum of life of the author plus 70 years, while lock­ing the US to the same lengths so it will be hard­er to short­en them in the future. It con­tains extreme DRM anti-cir­cum­ven­tion pro­vi­sions that will make it a crime to tin­ker with, hack, re-sell, pre­serve, and oth­er­wise con­trol any num­ber of dig­i­tal files and devices that you own. The TPP will encour­age ISPs to mon­i­tor and police their users, like­ly lead­ing to more cen­sor­ship mea­sures such as the block­age and fil­ter­ing of con­tent online in the name of copy­right enforce­ment. And in the most recent leak of the TPP’s Intel­lec­tu­al Prop­er­ty chap­ter, we found an even more alarm­ing pro­vi­sion on trade secrets that could be used to crack­down on jour­nal­ists and whistle­blow­ers who report on cor­po­rate wrongdoing.

Here, we’d like to explore yet anoth­er set of rules in TPP that will chill users’ rights. Those are the crim­i­nal enforce­ment pro­vi­sions, which based upon the lat­est leak from May 2014 is still a con­test­ed and unre­solved issue. It’s about whether users could be jailed or hit with debil­i­tat­ing fines over alle­ga­tions of copy­right infringement.

Dan­ger­ous­ly Low Thresh­old of Criminality

The US is push­ing for a dan­ger­ous­ly broad def­i­n­i­tion of a crim­i­nal vio­la­tion of copy­right, where even non­com­mer­cial activ­i­ties could get peo­ple con­vict­ed of a crime. The leak also shows that Cana­da has opposed this def­i­n­i­tion. Cana­da sup­ports lan­guage in which crim­i­nal reme­dies would only apply to cas­es where some­one infringed explic­it­ly for com­mer­cial purposes.

This dis­tinc­tion is cru­cial. Com­mer­cial infringe­ment, where an infringer sells unau­tho­rized copies of con­tent for finan­cial gain, is and should be a crime. But that’s not what the US is push­ing for—it’s try­ing to get lan­guage passed in TPP that would make a crim­i­nal out of any­one who sim­ply shares or oth­er­wise makes avail­able copy­right­ed works on a “com­mer­cial scale.”

As any­one who has ever had a meme go viral knows, it is very easy to dis­trib­ute con­tent on a com­mer­cial scale online, even with­out it being a mon­ey-mak­ing oper­a­tion. That means fans who dis­trib­ute sub­ti­tles to for­eign movies or ani­me, or archivists and librar­i­ans who pre­serve and upload old books, videos, games, or music, could go to jail or face huge fines for their work. Some­one who makes a remix film and puts it online could be under threat. Such a broad def­i­n­i­tion is ripe for abuse, and we’ve seen such abuse hap­pen many times before.

Fair use, and oth­er copy­right excep­tions and lim­i­ta­tions frame­works like fair deal­ing, have been under con­stant attack by right­sh­old­er groups who try to under­mine and chip away at our rights as users to do things with copy­right­ed con­tent. Giv­en this real­i­ty, these crim­i­nal enforce­ment rules could go fur­ther to intim­i­date and dis­cour­age users from exer­cis­ing their rights to use and share con­tent for pur­pos­es such as par­o­dy, edu­ca­tion, and access for the disabled.

Penal­ties That Must be “Suf­fi­cient­ly High”

The penal­ties them­selves could be enough to intim­i­date and pun­ish users in a way that is gross­ly dis­pro­por­tion­ate to the crime. Based upon the leak, which showed no oppo­si­tion in key sec­tions, it seems TPP nego­tia­tors have already agreed to more vague pro­vi­sions that would oblige coun­tries to enact prison sen­tences and mon­e­tary fines that are “suf­fi­cient­ly high” to deter peo­ple from infring­ing again. Here is the text:

penal­ties that include sen­tences of impris­on­ment as well as mon­e­tary fines suf­fi­cient­ly high to pro­vide a deter­rent to future acts of infringe­ment, con­sis­tent­ly with the lev­el of penal­ties applied for crimes of a cor­re­spond­ing gravity;

Already in many coun­tries, crim­i­nal pun­ish­ments for copy­right gross­ly out­weigh penal­ties for acts that are com­par­a­tive­ly more harm­ful to oth­ers. So the ques­tion as to what crimes copy­right infringe­ment cor­re­sponds to in “grav­i­ty” is obscure. What’s more alarm­ing is that coun­tries with­out exist­ing crim­i­nal penal­ties or whose penal­ties are not “suf­fi­cient­ly high” to sat­is­fy the US gov­ern­ment, may be forced to enact harsh­er rules. The US Trade Rep­re­sen­ta­tive (USTR) could use the cer­ti­fi­ca­tion process, at the behest of right­sh­old­er groups, to arm-twist nations into pass­ing more severe penal­ties, even after the TPP is signed and rat­i­fied. The USTR has had a long his­to­ry of pres­sur­ing oth­er nations into enact­ing extreme IP poli­cies, so it would not be out of the realm of possibility.

Prop­er­ty Seizure and Asset Forfeiture

The TPP’s copy­right pro­vi­sions even require coun­tries to enable judges to uni­lat­er­al­ly order the seizure, destruc­tion, or for­fei­ture of any­thing that can be “trace­able to infring­ing activ­i­ty”, has been used in the “cre­ation of pirat­ed copy­right goods”, or is “doc­u­men­tary evi­dence rel­e­vant to the alleged offense”. Under such oblig­a­tions, law enforce­ment could become ever more empow­ered to seize lap­tops, servers, or even domain names.

Domain name seizure in the name of copy­right enforce­ment is not new to us in the US, nor to peo­ple run­ning web­sites from abroad. But these pro­vi­sions open the door to the pas­sage of ever more oppres­sive mea­sures to enable gov­ern­ments to get an order from a judge to seize web­sites and devices. The pro­vi­sion also says that the gov­ern­ment can act even with­out a for­mal com­plaint from the copy­right hold­er. So in places where the gov­ern­ment choos­es to use the force of copy­right to cen­sor its crit­ics, this could be even more disastrous.

Crim­i­nal­iza­tion of Get­ting Around DRM

We’ve con­tin­ued to raise this issue, but it’s always worth men­tion­ing—the TPP exports the Unit­ed States’ crim­i­nal laws on dig­i­tal rights man­age­ment, or DRM. The TPP could lead to poli­cies where users will be charged with crimes for cir­cum­vent­ing, or shar­ing knowl­edge or tools on how to cir­cum­vent DRM for finan­cial gain as long as they have “rea­son­able ground to know” that it’s ille­gal to do so. Chile, how­ev­er, oppos­es this vague lan­guage because it could lead to crim­i­nal penal­ties for inno­cent users.

The most recent leak of the Intel­lec­tu­al Prop­er­ty chap­ter revealed new excep­tions that would let pub­lic inter­est organizations—such as libraries and edu­ca­tion­al institutions—get around DRM to access copy­right­ed con­tent for uses pro­tect­ed by fair use or fair deal­ing, or con­tent that may sim­ply be in the pub­lic domain. But even if it’s legal, it would be dif­fi­cult for them to get around DRM since they may not be equipped with the knowl­edge to do it on their own. If some­one else tries to do a pub­lic ser­vice for them by cre­at­ing these tools for legal­ly-pro­tect­ed pur­pos­es, they could still be put in jail or face huge fines.

Con­clu­sion

Like the var­i­ous oth­er dig­i­tal copy­right enforce­ment pro­vi­sions in TPP, the crim­i­nal enforce­ment lan­guage loose­ly reflects the Unit­ed States’ DMCA but is abstract­ed enough that the US can pres­sure oth­er nations to enact rules that are much worse for users. It’s there­fore far from com­fort­ing when the White House claims that the TPP’s copy­right rules would not “change US law”—we’re still export­ing bad rules to oth­er nations, while bind­ing our­selves to oblig­a­tions that may pre­vent US law­mak­ers from reform­ing it for the bet­ter. These rules were passed in the US through cycles of cor­rupt pol­i­cy laun­der­ing. Now, the TPP is the lat­est step in this trend of increas­ing­ly dra­con­ian copy­right rules pass­ing through opaque, cor­po­rate-cap­tured processes.

These exces­sive crim­i­nal copy­right rules are what we get when Big Con­tent has access to pow­er­ful, secre­tive rule-mak­ing insti­tu­tions. We get rules that would send users to prison, force them to pay debil­i­tat­ing fines, or have their prop­er­ty seized or destroyed in the name of copy­right enforce­ment. This is yet anoth­er rea­son why we need to stop the TPP—to put an end to this seem­ing­ly end­less pro­gres­sion towards ever more chill­ing copy­right restric­tions and enforcement.

If you’re in the US, please call on your rep­re­sen­ta­tives to oppose Fast Track for TPP and oth­er unde­mo­c­ra­t­ic trade deals with harm­ful dig­i­tal policies.