Reprising a comment from the story on the original article this editorial is based on:
The TPP is not itself a law. It's a meta-law, which commits its signatories to enact actual enforceable laws based on the framework established in the treaty.
No device can be destroyed "under the TPP". The TPP instead demands that its signatories enact laws so that they have a judicial process whose remedies can potentially include the destruction of devices. The TPP hasn't even been ratified yet, let alone enabled by law.
This seems like hair-splitting, but I don't think it is. I think the question of what impact TPP will have on security research depends entirely on what the enabling laws for the TPP look like in each country. In the US, our laws already cordon off security and interoperability research from anti-circumvention enforcement.
The TPP itself also acknowledges non-infringing use. First, note that the Vice article selectively quotes the leaked TPP text, which does not demand destruction of "anti-circumvention devices", but rather of devices engaged in prohibited activity. The TPP does not demand a prohibition on security research. Further, the TPP earlier (QQ.G.17) binds each party to balance IP law with fair use for criticism, comment, and research.
I'm not arguing that the TPP IP law is going to be a good thing for security research. It probably won't be (at least, not outside the US). But it's too early to know what it's impact is going to be, and certainly to early to say that it's going to result in the confiscation of security researcher laptops.
Meta-law is what law writers use to justify writing the local law. In Sweden we saw this promoted heavily in regard to data retention, where the law makers explicitly said that we "had to do this" because the meta-law bound Sweden to implement a compatible local law. If one party blames the local law, and the other party blames the meta-law, then all we have is people pushing blame without anyone taking responsibility. A way for me then to avoid hair-splitting in this case is to blame both sides for the full legal change, as TPP will be a law in itself for all practical and political purposes if it get signed.
QQ.G.17 has no hard obligations, and is only a suggestion that nations should "endeavor to achieve an appropriate balance". That is like me suggesting that government should "endeavor to achieve a fair balanced budget". It doesn't actually say anything concrete, dictate policy, nor impact the political environment in any way at all. It's there to provide a good-feel nod, while the law makers can focus on the actual TPP obligations. EFF remarked this in their article a week ago (https://www.eff.org/deeplinks/2015/10/final-leaked-tpp-text-...).
Of course it's true that there's no hard obligation to enable security research under new copyright regimes, but neither is there a hard obligation to crack down on it.
What there is in the TPP is:
* No suggestion anywhere that security research involving circumvention should be restricted or regulated in any form
* Affirmative requirements that new copyright laws make room in some form for fair use, research, and criticism.
You certainly wouldn't get that impression from breathless secondhand stories like this one.
"... critics rightly point out that U.S. trade agreements fail to capture the balance of creator and user interests imbedded in U.S. IP law. Trade agreements have been a one-way street that set a minimum level of protection. Limitations on creators’ rights—like fair use—are an important part of U.S. law but don’t get included in the agreements alongside things like longer monopoly terms and stricter enforcement.
... For example, the U.S. Copyright Office has proposed reforms to deal with the growing problem of “orphan works”—works that are protected by copyright but can’t be published because no one knows who owns the copyright. The proposed reforms would limit the damages these phantom copyright owners can claim from infringement after such works are published. That proposal is potentially barred by draft language in the TPP requiring the availability of full damages in every case."
"EFF has joined as signatory to a letter that calls on the U.S. Trade Representative not to agree to any provisions in the TPP that could prevent Congress from enacting fixes to address the orphan works problem. Other signatories to the letter are Authors Alliance, Creative Commons, Knowledge Ecology International, and New Media Rights."
"On damages, the text (QQ.H.4) remains as bad as ever: rightsholders can submit “any legitimate measure of value” to a judicial authority for determination of damages, including the suggested retail price of infringing goods. Additionally, judges must have the power to order pre-established damages (at the rightsholder's election), or additional damages, each of which may go beyond compensating the rightsholder for its actual loss, and thereby create a disproportionate chilling effect for users and innovators.
No exception to these damages provisions is made in cases where the rightsholder cannot be found after a diligent search, which puts the kibosh on ideas for the introduction of an orphan works regime that would cap remedies available against those who reproduce these otherwise-unavailable works."
No part of this addresses anything I just wrote. Please don't use me as a coat rack for your politics. I'm happy to discuss the actual language in the treaty, though!
This comment is doubly a non-sequitur, since nothing I've said anywhere would give you evidence about what I believe about fair use, and orphan works have nothing to do with this thread --- the term appears nowhere in the Slate story, and, speaking as a security researcher, has very little to do with security research.
Moreover, the part of your comment concerning orphan works was added to your comment, without remarking about the update, after I wrote the comment you just replied to.
Please stop doing this.
(I fleshed this comment out after writing it and then noticing that you'd asked me to respond to an edit you wrote after I wrote my comment.)
Sorry, I did not see your response until I had finished writing/editing my incomplete comment. I'm on a mobile device and editing is slow and requires partial saves, in case the browser flushes the tab from RAM. There are three quotes on Orphan Works, the first one was there from the beginning, the other two were added as fast as I could.
> it's too early to know what it's impact is going to be
Consider the legal threat model:
Team A: hundreds of industry lobbyists have years of online
access to TPP drafts (i.e. change history).
Team B: government representatives have physical access,
but only in a secure room where they can take no
notes/phone, and cannot bring their expert staff
to interpret complex legal language.
Team C: public advocates (e.g. US Copyright Office) are
effectively excluded from the process.
With this legal threat model, there is reason to be cautious of charitable interpretations of proposed laws which emerge from the TPP's imbalanced development process, as we try to interpret the text without the benefit of draft comments or git/change history.
Non-inclusive processes don't fail because of lobbyists. They fail because the excluded majority ignores outputs which made little attempt to include their requirements. A poor process that creates non-representative TPP law will degrade public perception of future laws. See the movie 1776.
The TPP is not itself a law. It's a meta-law, which commits its signatories to enact actual enforceable laws based on the framework established in the treaty.
No device can be destroyed "under the TPP". The TPP instead demands that its signatories enact laws so that they have a judicial process whose remedies can potentially include the destruction of devices. The TPP hasn't even been ratified yet, let alone enabled by law.
This seems like hair-splitting, but I don't think it is. I think the question of what impact TPP will have on security research depends entirely on what the enabling laws for the TPP look like in each country. In the US, our laws already cordon off security and interoperability research from anti-circumvention enforcement.
The TPP itself also acknowledges non-infringing use. First, note that the Vice article selectively quotes the leaked TPP text, which does not demand destruction of "anti-circumvention devices", but rather of devices engaged in prohibited activity. The TPP does not demand a prohibition on security research. Further, the TPP earlier (QQ.G.17) binds each party to balance IP law with fair use for criticism, comment, and research.
I'm not arguing that the TPP IP law is going to be a good thing for security research. It probably won't be (at least, not outside the US). But it's too early to know what it's impact is going to be, and certainly to early to say that it's going to result in the confiscation of security researcher laptops.