The Trans-Pacific Partnership (TPP) — a sprawling international agreement currently being negotiated in secret meetings between government and industry representatives around the world — claims to be focused on the kind of trade regulations that affect countries and huge corporations. But in fact, many of its provisions would have profound chilling effects on hackers, makers, and tinkerers.
The problems for hackers and makers stem from the so-called "anti-circumvention" rules that have appeared in leaked drafts of the agreement. That language reflects a controversial clause of U.S. copyright law that makes it illegal to bypass technical measures that are put in place to restrict copyrighted content — such as measures that limit the number of devices on which you can play a video you legally purchased.
Even if you are bypassing those restrictions for reasons that don't violate copyright law — say you're remixing a segment of a video under fair use rules, or trying to read an ebook on a different platform — you could still get caught in the anti-circumvention net.
Anti-circumvention rules are supposedly intended to limit "piracy.” But in effect, they allow publishers, studios, and other distributors to write their own private laws about how people can use their legally purchased media.
Anti-circumvention rules help companies restrict your freedoms and choose whether to sell them back to you bit by bit.
When Tinkering Is Outlawed, Only Outlaws Will Tinker
When media companies restrict the way you can use the things you legally buy, they also become a chokepoint on innovation, fair use, and competition. In the U.S., this has resulted in 15 years of unintended consequences since the law went into effect. There is now overwhelming evidence that this situation affects hackers and tinkerers both directly and indirectly:
- The media you purchase can come burdened with technical restrictions that carry legal weight. Those limit not only how you can remix or mash up that material, but also how you're allowed to watch, read, play, or listen to it. Want to modify a version of your new expensive video game to save files locally so you don't lose your progress when your Internet goes out? You may be out of luck. Want to play back the movie you bought on your free software operating system? You might have to commit a crime to do so.
- Your devices — like your cell phone, tablet, game console, and even increasingly integrated computer systems in cars — come locked down with software handcuffs that are a crime to break. Under TPP's anti-circumvention rules, governments may have to outlaw basic repairs and improvements. Sound far-fetched? It's exactly what we've seen in the U.S. this year with phone unlocking. When you've legally purchased a cell phone, common sense says that you should have the right to connect it to any carrier you want. But because due to the anti-circumvention rules in U.S. copyright law, that situation became much murkier. One of the mottos of the maker movement is, "If you can't open it, you don't own it." By that standard, the TPP's anti-circumvention rules mean you can't own any of your legally purchased devices.
- Anti-circumvention rules end up criminalizing many of the ways hackers make and use free software. DRM software requires hiding information from users about what their computers are doing. That requirement is incompatible with software that is free as in speech, where users must have the right to understand what their software is doing and change it to better suit their needs.
How Did We Get Here? Why TPP Is Especially Dangerous
We know how bad the anti-circumvention rules in TPP are because we've got bad U.S. law to point to — U.S. law that has stifled security research, legitimate competition, free expression through fair use, and more. How did the U.S. get such a bad law?
The culprit is policy laundering, the shady practice of slipping regulations into international agreements that aren't subject to the same democratic scrutiny as the national legislative process. Anti-circumvention rules are unpopular because they go against the public interest, but that doesn't matter in the secret backrooms where TPP negotiations take place. And once the rules are written into agreements, some elected lawmakers can feel like their hands are tied in bringing the country into compliance.
TPP would make the situation worse by locking anti-circumvention rules in place in the countries that already have them, and expanding them to the ones that don't. For these reasons and others, TPP would be a disaster for the Internet and innovation , and continue a terrible trend of secrecy in negotiations.
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.