Monthly Archives: April 2014


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Revolving Door: MPAA Hires Chief USTR Negotiator Behind ACTA And TPP’s IP Chapter

For the past five years or so, the USTR’s chief intellectual property negotiator has been Stan McCoy. McCoy has long positioned himself as an intellectual property maximalist, repeating talking points from lobbyists regularly, while condescending to anyone who questions the legitimacy of those claims. McCoy famously was the chief negotiator behind the US’s disastrous (and mostly failed) attempt to push ACTA through, as well as the lead on the TPP’s intellectual property chapter — a chapter so bad it may help sink the TPP agreement. In fact, previous reports have noted that McCoy’s bullying and aggression in trying to push through the TPP were angering others in the negotiations. McCoy also has a long history of mocking public interest advocates, while praising maximalists for similar tactics. From a report a few years ago concerning a hearing that McCoy chaired:

The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.

Given all that, it should be no surprise at all that McCoy, the failed strategist behind ACTA and the TPP’s IP provisions… has received his reward and pat on the back from the industry: a shiny new job at the MPAA. As Tim Lee notes in that link, this is just the latest in the never-ending revolving door between maximalist lobbying groups and the USTR:

Last year I wrote that at least a dozen former senior USTR officials have moved to industry groups that favor stronger protections. McCoy’s hire makes it a baker’s dozen. Previous hires include including Greg Frazier, who (according to his LinkedIn page) spent 8 years as the executive vice president of the Motion Picture Association of America after a stint at USTR. Other former USTR officials took jobs at drug and medical device companies.

McCoy’s old job, assistant USTR for intellectual property and innovation, made him the Obama administration’s highest-ranking trade negotiator on patent and copyright issues. Jamie Love, director of the public interest organization Knowledge Ecology International, notes that this isn’t the first time USTR’s top intellectual property official has gone on to take a lobbying job. McCoy’s predecessor, Victoria Espinel, is now the head of the software industry group BSA.

Espinel’s predecessor at BSA was Robert Holleyman, the man Obama just nominated to a senior post at USTR. While at BSA, Holleyman supported the controversial Stop Online Piracy Act, which would have created an official internet blacklist to aid in anti-piracy efforts. (He backtracked a few weeks later after an uproar in the technology community.

Another of McCoy’s predecessors as USTR’s top IP official is Joe Papovich, who later spent seven years as a lobbyist for the recording industry.

As Lee notes, the revolving door between maximalist lobbying organizations and the USTR goes round and round, with USTR officials joining the lobbyist organizations and then going back to the USTR. It’s a clear case of regulatory capture by the industry. None of those folks go on to public interest or civil society groups, nor does the USTR ever seem interested in hiring those people. It’s entirely a one-sided effort to help out the biggest lobbying interests. Work for a few years pushing through policies that favor those companies, and then get “rewarded” with a nice, high-paying job for those very same lobbyists, and no one ever seems to point out the obvious corruption in the entire process.

As Lee notes, as easy as it is to ascribe comic-book levels of ill-intent here, that’s unlikely. McCoy and others genuinely believe what they’re doing is the right thing. But the end results are clear:

I doubt public servants like McCoy consciously pursue dubious policies in an effort to curry favor with future employers. McCoy’s press representative hasn’t responded to my interview request, but I assume McCoy sincerely believes the Hollywood-friendly policies he advocated at USTR were in the interests of the nation.

But the revolving door between USTR and industry groups creates a strong but subtle pressure on USTR’s culture. Like many government agencies, USTR regularly turns to outside experts to help it sort through complex trade issues. Naturally, they turn to people they trust: their former colleagues — or even former bosses — who now work at trade organizations with plenty of resources to devote to understanding the minutia of trade policy.

And it’s even worse than that, frankly. Because, when you combine that revolving door, with the proposals seen in ACTA, TPP and elsewhere, it undermines the public trust in all of this. People see it and naturally assume corruption, even if the intent is pure. In other words, even if we give McCoy and others the benefit of the doubt, the very fact that he spent 5 years pushing entirely for the MPAA’s policies, while brushing off any and all claims from the MPAA’s critics, and then took a job at the MPAA, confirms in the minds of many people that the USTR has no interest in representing the public good. And that perception (regardless if the underlying intent is real or not) corrodes public trust in the federal government, and the USTR in particular.

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Copyright Maximalists’ Incredible Sense Of Entitlement: If It Challenges The Biz Model We Chose, It Must Be Illegal

Having followed the copyright industry for so long, I’m often shocked at the incredible sense of entitlement of those who argue strictly for greater and greater copyright powers. One thing we’ve discussed in the past is that the gatekeepers (and it always is the gatekeepers) have an issue of constantly overvaluing the content and undervaluing the service. That is, any time they see a new service come along that the public really likes, they insist that all or nearly all of the value must be attributable to the content and not the service. Thus, they will always argue that “the service” is somehow ripping them off. We’ve seen it over and over again, from ringtone royalties to Guitar Hero to Pandora and others. Every time the story is the same: these other companies are making some money (even if they already pay us) and therefore we’re getting screwed. If anyone else is making any money, then the copyright holders start screaming about how it’s completely and totally unfair.

In their minds, the value of the service is meaningless. The fact that they were unable to provide such services directly themselves gets totally ignored. They just insist that 100% of the value is the content, and thus they need to get more money. Nevermind the fact that companies like Pandora already pay nearly all of their revenue to the copyright holders. There’s always more blood to be squeezed from that stone, even if it means killing the golden goose (to mix a few parables).

Two recent stories illustrate this extreme entitlement, and total dismissal of the value of anyone else, perfectly. Let’s start with the Aereo case, which was heard today at the Supreme Court. It will be some time before the court rules, but check out this quote from Gordon Smith, the president of the National Association of Broadcasters on why he believes Aereo is breaking the law:

“Quite simply, Aereo takes copyrighted material, profits from it and does so without compensating copyright holders,” said Gordon Smith, the president of the National Association of Broadcasters.

Of course, that’s misleading in the extreme for a variety of reasons. First of all, there are lots of areas where it’s perfectly legal to profit from copyrighted materials without compensating copyright holders. Used book stores and used record stores (back when such things existed) are a perfect example. Fair use is another. The point is: just because someone is making a profit does not mean that the copyright holders have to get paid. That’s never been the case. In fact, it’s the same fallacy described above. People are flocking to Aereo because it provides a better service than the cable companies. But the broadcasters ignore all of that and insist all of the value must come from the content itself.

That brings us to the second story highlighting this, which involves comments over in the EU concerning the legality of reselling digital media. Not surprisingly, the record labels, represented by the IFPI and BPI, are 100% against this sort of thing for no logical reason, other than that consumers might actually prefer such a system. They specifically highlight that the quality and convenience of digital resales are too good, and that might upset the business model the record labels have chosen. The argument echoes the labels’ argument against ReDigi in the US, a service that allows people to resell digital content that has been shut down in the US.

Again, the focus here has nothing to do with what’s right or what’s best for the public. In fact, the entire argument appears to be “fuck the public, we need more money.” It completely ignores multiple studies that have shown that a thriving used goods market increases the value of the original market. It ignores the idea that making things easier and better for consumers is a good thing. Instead, it’s all about overvaluing the content and undervaluing everything else.

This all goes back to a point we made years ago: industries that have embraced copyright for the entirety of their business model have set copyright up as a crutch on which they lean. Rather than exercising the rest of their body, finding all sorts of other good business models that allow them to improve the experience for customers, they just keep leaning on that crutch and insist it’s entirely necessary for them to live. And thus, those other muscles atrophy and wither away. So now that the world is changing and innovating, and others are demonstrating lots of great ways to better serve the public, the copyright maximalists are insisting it’s all impossible. They need that damn crutch, and anything else is “piracy.” They only have themselves to blame, of course. For decades, people have been explaining to them and showing them how to build better services, how to offer better experiences for everyone, while still making money. And, all they do is lean more on that old crutch and insist it’s the only possible way to walk.

It’s a massive sense of entitlement, in which they appear to have no self-awareness that they’re actively advocating for a world in which the public is worse off.

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Turkey’s Prime Minister Sues His Own Country Over Twitter

As we’ve been reporting for nearly a year now, the Turkish prime minister, Recep Tayyip Erdoğan, really hates Twitter. Indeed, it is arguably becoming something of an obsession for him, to the point where he has now taken the unprecedented step o… Continue reading

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Picturefill 2

This is important because:

  1. Picturefill was a great solution already, and this brings it into the future encouraging the use of the future proper syntax.
  2. You not only can use <picture> but <img srcset> too, which is a close cousin and useful when swapping sources with media queries alone would suck.

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Police File On Student ‘Bullied Into Committing Suicide’ Strangely Lacking In Evidence Of Bullying

CNN recently published a follow up story dealing with the circumstances surrounding the suicide of Rebecca Sedwick, a 12-year-old who leapt to her death reportedly due to intense bullying — and it appears the whole “bullying” part is almost entirely absent.

One of the more unexpected outcomes of Sedwick’s suicide was the arrest of two students in connection with her death. (Though not wholly without precedent…) According to Sheriff Grady Judd, the two suspects posted messages both before and after Sedwick’s death that indicated they were involved in her bullying. The older of the two suspects (one was 14 and the other 12) posted the following on Facebook after Sedwick took her own life.

Yes ik [I know] I bullied Rebecca nd she killed her self but IDGAF [I don’t give a (expletive)].

Sheriff Judd took it upon himself to have these two arrested, setting a somewhat dangerous precedent in his county that people could be held criminally responsible for someone else’s voluntary action. He seemed to approach this as a crusade against the cruelty of youth, one in which laws and common sense could be overturned in order to right wrongs.

Judd, as it turns out, has had plenty of crusades in his past. One of his more notable efforts involved sending deputies 1,900 miles away to arrest a suspected pedophile. Judd’s moral compass, however, skews a bit further north than most, which makes his stance on issues like pornography and bullying somewhat suspect.

In 2007, commenting on a case in which he had arrested a man who was running a porn site out of his home in Polk, [Judd] said: “No normal person could even imagine what’s depicted in those videos and in those photographs.” A sexual behavior expert from the University of Central Florida said in a motion in the man’s court file that it was run-of-the-mill erotica available anywhere on the Internet to anyone.

Judd also seldom performs his work without an audience. One colleague of his memorably stated that the most dangerous place to be is “between Judd and a camera.” This calls into question Judd’s judgement as well, which seems to be at least as populist-oriented as it is crime-oriented.

Not long after Judd’s high-profile arrest of two students, the charges were dropped by the State District Attorney. Judd applied spin to his prized arrests being cut loose, claiming all he wanted to do was, “bring this conduct to the proper authorities.” Considering Judd is one of the “proper authorities,” one wonders what endgame he envisioned. It certainly couldn’t have been his righteous crusade being found legally untenable by the state.

Another crusader, this time a lawyer, decided Sedwick’s death called for a new law — one that targeted parents for not policing their children’s online behavior. According to his extrapolations, the parents should be held responsible for an unrelated person’s suicide, something even further removed than Judd’s assertion that the two students should be held criminally responsible for Sedwick’s suicide. (Of course, Judd also thought the parents should be punished somehow, and even hauled in one of the parents for unrelated abuse/neglect charges.)

By the time this had all been sorted out, rumors were beginning to surface that Sedwick’s home life wasn’t quite the placid safehouse her grieving mother had portrayed it as.

More than a year before her death, Sedwick had been battling depression resulting from her deteriorating relationship with her father, according to intake reports from a counselor that are included in the police file. She also complained about fights between her mother and stepfather. The file, which has been reviewed by CNN, says she cut herself on a few occasions, had suicidal ideations and had been committed for psychiatric evaluation for two days.

In November 2012, she accused her mother of abusing her and then took back the accusation, saying she was pushed to lie by classmates who forced her off campus and told her they wouldn’t let her return home unless she lied to an officer. Her mother denied abusing Sedwick but said she slapped the girl’s face once during an argument about Sedwick being too young to date.

Sometime before her death, Sedwick’s relationship with an online boyfriend came to an end, according to the documents. Family conflict, in addition to bullying from girls at school, weighed on her.

What wasn’t found in the files, however, was much evidence that Sedwick was unrelentingly bullied.

“I don’t think I was prepared for the abysmal lack … of any evidence of bullying for the seven months prior to her suicide,” said Nancy Willard, director of Embrace Civility in the Digital Age, a group that focuses on combating cyberbullying, and author of a handful of books including “Positive Relations @ School (& Elsewhere).”

Willard says this case is like many others: parents and authorities leaping to the wrong conclusions in the aftermath of a tragedy. The haste to pin a suicide on bullying buried the rest of Sedwick’s background. This is somewhat understandable, given the circumstances. In the wake of a tragedy, no one wants to point the finger at the parents as possibly being partially responsible for their own child’s death.

But if these teens were somehow responsible for Sedwick’s suicide, then why wouldn’t anyone go after the other factors, all of which were included in the police file? Why didn’t someone haul in the ex-boyfriend? Surely he’s as “culpable” as anyone.

No one would think to haul in anyone else (parents, ex-boyfriend) who contributed to Sedwick’s unhappiness, but it was considered perfectly OK to haul in two teens and attempt to press criminal charges, even when faced with a dearth of evidence. But that’s exactly how ridiculous Judd’s efforts were.

Now that Judd has apparently seen this lack of evidence for the first time, he’s backpedaling quickly.

“We never said that bullying was the only reason Rebecca committed suicide,” Judd told The Associated Press. “But what the bullies did is that they continued to stack bricks on an already overloaded wagon till finally, it broke.”

But these “bricks” could have been “stacked” in any order. Judd simply made the most popular move, one that brought in the most unsympathetic suspects. And then he rode his hobby horse hard, until it collapsed under the weight of his misguided convictions.

But there are still those who want to make someone pay. The lawyer for Sedwick’s mother is planning to sue the school district as well as at least one of the two girls Judd arrested. He claims to have evidence that the teens bullied Sedwick and that the school not only knew, but did nothing to stop it.

There is evidence that indicates Sedwick was bullied in the months leading up to her death, but that evidence is scattershot at best. The lack of evidence doesn’t necessarily mean it didn’t happen, but it does suggest that, coupled with other information coming to light, it was hardly the only factor in Sedwick’s decision to end her life.

The point here isn’t to excuse the bullies for their actions. The point is that far too often the instantaneous reaction to tragedies is misguided and myopic, focusing on the least sympathetic protagonists and ignoring anything else that doesn’t fit the narrative that’s easiest to accept. The larger problem is that law enforcement and legislators are especially prone to act on this limited (or willfully ignored) information, and that results in all sorts of questionable actions and terrible laws — things that negatively affect the general public.

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James Clapper Bans Intelligence Community From Basically Any Interaction With Nearly Anyone With A Social Media Account

Back in 2012, we wrote about how Senator Dianne Feinstein appeared to be a lot more focused on who leaked information about the US involvement in Stuxnet, rather than the question of whether or not the US should have been involved in Stuxnet in the fir… Continue reading

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Inline SVG vs Icon Fonts [CAGEMATCH]

If you’re building an icon system for a site, you have some options. If you know the icons need to be raster images, then you’ll likely be using CSS sprites. If the icons will be vector images (much more common these days), you have some options. Two of those options are using inline SVG and using icon fonts.

Let’s compare.

Icons are Vector

There are big advantages to vector icons: resizable up and down without losing quality, extra …

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Time Warner Cable’s Contractual Loophole Allows It To Tell Local Politicians It Has Received Zero Complaints

How plausible is it for a company that routinely ranks at the bottom of customer satisfaction surveys to claim it has had “no complaints?” Time Warner Cable did exactly that on its way to extending its franchise agreement with Keene, New Hampshire through 2023. Broadband Reports has the details:

Last month in Keene, New Hampshire, the Keene City Council was voting on whether to add a second local channel (which would give the city more revenue) through Time Warner Cable. In exchange, Time Warner Cable wanted to extend the franchise agreement with the city for an additional five years, or the year 2023. While the rest of the council agreed to give Time Warner Cable the extension, one Councilor had a bit of an issue with the way that Time Warner Cable was running their business.

Even though the Council voted 4-1 in favor of the second channel, Councilor Terry M. Clark expressed his disappointment with Time Warner Cable on their refusal to adhere to the original franchise agreement signed with the city years back that forces Time Warner Cable to tell the City Council about any complaints that they receive from customers:

They reported back that they had no complaints,” Clark said at last week’s meeting. “I asked, ‘Why?’ They said because they weren’t required to write them down.”

Yes, that last part is true. TWC’s franchise agreement contains some language that allows it to whitewash its horrible track record. Bill Neilson at Broadband Reports spoke with the objecting council member, who forwarded him the no-problems-here contractual clause.

Except as limited by federal law or FCC regulations concerning privacy, Franchisee shall maintain a record of all such complaints and such records shall be available at Franchisee’s local offices for at least two years for inspection by the Franchising Authority as it may from time to time request, during regular business hours and upon reasonable notice. Nothing herein shall be deemed to require Franchisee to maintain records of oral complaints, which can be handled to the customer’s satisfaction in the course of the initial conversation in which the complaint is made or does not require technical field response. Upon request, the Franchisee shall provide to the Franchising Authority an accounting of the number and nature of such complaints.

Oral complaints apparently don’t need to be recorded for posterity if they are handled with a single phone call, or if a technician is never sent out. The key here would seem to be “to the customer’s satisfaction,” but it appears TWC isn’t going to let itself get bogged down by discussions about whether or not the end user was actually satisfied. Presumably, “handled in a single phone call” is still valid (and unrecordable) even if the person is bounced from useless rep to useless rep for hours or simply spends an unimaginable amount of time on hold. As long as someone on TWC’s end can put a check in the “resolved” box at the end of the conversation (and keep technicians from leaving the building), the complaint is off the record.

If the person calls back, presumably a new record is opened for that single call and, again, dismissed once the problem is “resolved.” This is cooking the books on low heat and since TWC is the custodian of the records, there’s little anyone can do to point out where complaints are being vanished into the ether.

Councilman Clark strongly feels TWC just isn’t being honest.

“It’s my contention that most call-in complaints are not resolved in the course of the initial conversation and that they are required to account for the nature of all complaints,” said Councilor Terry M. Clark.

But if only one council member is going to ask questions, it’s highly unlikely TWC will suddenly become a model of corporate responsibility. Until there’s danger of it losing the contract, it’s not going to live up to even the most basic level of accountability. This is the other danger of cableco monopolies and duopolies: even cities themselves have no leverage against the only game in town.

It takes a humongous amount of chutzpah to claim you’ve had no complaints, when all of the following is on the record (gathered by Broadband Reports):

This statement by TWC is the company daring the city council to call bullshit on its claims. But the city won’t. The funds the city collects from every TWC subscriber (much of which goes to support local TV channels) won’t be easy to replace, especially if an incumbent cable company poisons the well before leaving town. TWC has a good thing going and has fought the council every step of the way to ensure its profit margins stay intact.

Time Warner offered an adapter box for free through Dec. 18, after which customers had to purchase the adapter from the cable company. The box will also come with a monthly $1 fee beginning Jan. 1, 2015.

Clark convinced his fellow councilors to ask Time Warner to consider waiving the $39.99 installation fee for subscribers who couldn’t install the adapter themselves, but the company refused.

“There are many other things that we’ve asked of Time Warner,” Clark said last week. “They’re not willing to give rate payers anything unless it’s required by law, and even if it is required by law, it has to be pushing and shoving before they’ll acquiesce to that. I don’t think they deserve (a contract extension).”

Clark has been outvoted and TWC has another nine years to continue fighting city hall and tossing complaints in the trash. Does anyone (other than Comcast) think merging it with another cable company with an equally horrendous customer service record will really improve things?

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Court Says DOJ Must Release Memo That Justifies Drone Killing Of US Citizen

As we’ve discussed, the administration has gone to incredible lengths to try to avoid any sort of public discussion concerning what legal authority it has to target American citizens with extrajudicial drone strikes. However, in a fairly big turn of events, a federal appeals court has overturned a lower court and ordered the DOJ to release “key portions” of the DOJ’s classified memo that explains the legal justification for killing US citizen Anwar al-Awlaki via a drone in Yemen. What’s interesting is that the panel came to this conclusion based on the administration’s public discussion on drones:

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.

“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”

The ruling is good in that this sort of information should be public and should be discussed publicly. However, at the same time, it also will likely lead to the administration clamping down on any other such information that it hopes to keep entirely secret — which could be a real problem. It will lead to even less transparency and fewer open discussion concerning issues of the US doing things under questionable legal authority.

As we’ve seen over the past few years, DOJ lawyers seem happy and willing to justify just about anything, twisting the law in all sorts of ways to make very questionable decisions deemed “legal” with little to no oversight or review — and no public discourse whatsoever.

Of course, it seems likely the DOJ will protest this latest decision and seek a Supreme Court review first, so it’s not like the justification is going to be revealed any time soon.

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NY Times Changes Its Tune On TPP; Highlights Cronyism, Lack Of Transparency As Problems

Last fall, many folks who follow these issues were somewhat dismayed by a weird NY Times editorial that appeared to endorse the Trans Pacific Partnership (TPP) agreement, while basically ignoring the many complaints about it. It wasn’t exactly a ringing endorsement, but it did clearly support the agreement, concluding with:

A good agreement would lower duties and trade barriers on most products and services, strengthen labor and environmental protections, limit the ability of governments to tilt the playing field in favor of state-owned firms and balance the interests of consumers and creators of intellectual property. Such a deal will not only help individual countries but set an example for global trade talks.

The endorsement resulted in the Times being rightly mocked for endorsing a secretive agreement that the NY Times editorial writers had not seen (indeed, could not see). Apparently, some folks on the editorial staff took at least some of this criticism to heart, and have now released a new editorial that is much more critical of the TPP — in particular, the process around it.

That is, while the editorial still (rightly, in our opinion) supports the idea of lowering key trade barriers, it finally acknowledges that a lot of what the TPP is doing has little to do with removing trade barriers, and plenty to do with helping corporations push through global regulations that it could not get adopted domestically. Furthermore, it directly takes on the fact that the USTR is ridiculously secretive on the negotiation with everyone except big businesses that have direct access:

The Obama administration has revealed so few details about the negotiations, even to members of Congress and their staffs, that it is impossible to fully analyze the Pacific partnership. Negotiators have argued that it’s impossible to conduct trade talks in public because opponents to the deal would try to derail them.

But the administration’s rationale for secrecy seems to apply only to the public. Big corporations are playing an active role in shaping the American position because they are on industry advisory committees to the United States trade representative, Michael Froman. By contrast, public interest groups have seats on only a handful of committees that negotiators do not consult closely.

That lopsided influence is dangerous, because companies are using trade agreements to get special benefits that they would find much more difficult to get through the standard legislative process. For example, draft chapters from the Pacific agreement that have been leaked in recent months reveal that most countries involved in the talks, except the United States, do not want the agreement to include enforceable environmental standards. Business interests in the United States, which would benefit from weaker rules by placing their operations in countries with lower protections, have aligned themselves with the position of foreign governments. Another chapter, on intellectual property, is said to contain language favorable to the pharmaceutical industry that could make it harder for poor people in countries like Peru to get generic medicines.

The editorial further notes the problematic “corporate sovereignty” provisions that allow companies the ability to sue countries for regulations they dislike, noting how it could be abused by banks to block financial regulations (as an example). It further questions some of the predictions of economic benefits from these agreements.

Towards the end, it notes (as many of us have been pointing out for years) that the Obama administration, and the USTR in particular, only have themselves to blame for this mess:

To a large extent, the administration has only itself to blame. By keeping secret so much information about trade negotiations, which have ceased to be purely about trade matters like tariffs and quotas, the government has made itself a target for criticism. Mr. Obama and Mr. Froman argue that their critics have misunderstood or misrepresented their intentions. But that is precisely why the president should provide answers to the questions people have raised about these agreements. It is time for him to make a strong case for why these new agreements will be good for the American economy and workers.

Of course, considering how many times this has been pointed out, and the USTR’s only response is to push out blatant misrepresentations of the truth, it seems unlikely that anything is going to change any time soon.

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