

America's 1998 Digital Millennium Copyright Act made it easy to censor the Internet: under the statute, you can make virtually anything disappear by claiming, without evidence, that it infringes your copyright, and there are almost no penalties for abuse.

This is a gift to every bully and jerk online, a tool that's routinely used to suppress everything from eyewitness video of police beatings to evidence of government corruption. It even let Disney commit copyfraud to remove pictures of a lawfully purchased toy and to get a Star Wars fan kicked off Facebook.

But not every country made the same mistakes as America. Countries like Chile, Japan and Canada created versions of the DMCA that have checks and balances — review by experts, court orders, or the right to rebut claims before material is taken down.

The secretive Trans Pacific Partnership, pushed by the US trade representative and negotiated between 12 countries says that signatories musn't change their copyright system to match the Japanese, Canadian or Chilean models: any future copyright reform must bring rules in line with the US system — to race with America straight to the bottom of the Internet regulation heap, the lawless land of unfettered and unaccountable censorship.

In the end, the fact that these countries was able to preserve its existing system was one of the qualified wins that we achieved in the final TPP text. But the win came at a cost: the text is crafted in such a way that no other countries, besides Canada and Chile, are entitled to benefit from systems that preserve user content online until a court orders its removal. For new signatories to the TPP, they can go no further than Japan does in protecting their users' freedom of expression against copyright takedown requests. The Manila Principles on Intermediary Liability were developed by EFF and partners from around the world and launched this May. They establish a baseline standard for intermediary liability rules that balance takedown requests with users' freedom of expression rights. So we can use the Manila Principles to rate how the TPP's ISP liability chapter should have looked. They also show how far short the TPP falls, particularly for those majority of countries who do not enjoy the grandfathered rules enjoyed by Canada and Chile.

How the TPP Perpetuates the Mistakes of the DMCA

[Jeremy Malcolm/EFF]