"Sometimes, [meetings are like] hey, let’s grab lunch, let’s grab coffee, and catch up. And half of it is about our kids, and half of it is about this [work related issue]. We’ll have a formal meeting [with government officials], but obviously we chitchat before and after. Because we’re human. So, a lot of it is just normal human interaction, right?"

25/

This social coziness lets lobbyists position themselves as "stakeholders," which legitimizes - and even requires - their participation in policymaking. As a trade negotiator says,

26/

"So to get your handle on a problem, you’ve got to pull the right people together, and you’ve got to sift through all the various ideas, so we obviously have a lot of regular interaction with companies [. . .] I spend a lot of time with the companies trying to understand their business model, try ing to understand how they interact with the governments in different countries, and then of course, socializing it within the building."

27/

Once lobbyists are "stakeholders," they get to define not just what position the US takes - they get to define which positions can even be considered. As a trade negotiator says:

28/

"[Lobbyists don't] spout talking points. They’re not giving us draft text because we haven’t gotten to the text phase yet. The way these meetings go is, generally we provide an update on what is happening and what approach we’re taking. The remainder is usually devoted to companies talking about their particular interests, and inquiring as to whether and how their issues are being addressed in that forum."

That's not just winning the game - it's defining the rules.

29/

Li's paper is a fascinating tour of the sausage-factory and a close examination of the gunk that litters the factory floor. That said, I think there are areas where she drops policies and fights into neat categories that are much messier. For example, Li contrasts the rules in TPP with the rules in ACTA, the #AntiCounterfeitingTradeAgreement, a failed international treaty from 2010.

30/

Li characterizes ACTA as being anti-tech because it imposed copyright liability on tech companies, which would have raised their costs by forcing them to police their users' speech, items for sale and uploads for copyright infringement. But that's not quite right: ACTA was *much* broader. First, because "counterfeiting" doesn't mean what you think it does: in an international trade agreement, counterfeiting concerns itself with all kinds of totally legitimate activities.

31/

For example, Apple engraves microscopic Apple logos on every part in an iPhone; no user ever sees these parts. But Apple uses the presence of an Apple trademark on these tiny components to lodge trademark claims with US border officials in order to block the importation of parts harvested from dead iPhones, as part of the company's war on repair:

pluralistic.net/2022/05/30/80-…

32/

Likewise, companies like Rolex and Cartier have national subsidiaries in countries all over the world with the exclusive license to sell their goods in each country. These companies then claim that, say, an official Mexican Rolex watch becomes a counterfeit Rolex the minute it crosses the US border, because Rolex Mexico doesn't have the right to use Rolex International's trademarks outside of Mexico.

33/

Asking tech companies to police "counterfeits" isn't just about stopping knockoffs - it's about letting multinational corporations control *all* secondary markets for their goods, giving them total control over repair and used goods.

34/

Beyond that: creating an affirmative duty for platforms to police their users' uploads and speech for copyright infringement is one of those things that not only won't prevent copyright infringement (beating filters is easy for dedicated copyright infringers), but it will also compromise users' speech (because filters are rife with false positives).

35/

And it will hand eternal dominance to the largest tech firms (both #Youtube and #Facebook support mandatory filters, because they've spent hundreds of millions on them, and know that their small rivals can't).

36/

ACTA wasn't a way to "punish" tech to make life better for media companies - it was a way to shift some of the oligarchic control of both tech and media around, while shoring up its dominance. Yes, parts of the tech sector hated ACTA, but it died because millions of *people* campaigned against it.

37/

And of course, ACTA got policy-laundered into law in 2019, when the EU adopted the #DigitalSingleMarketDirective and created a filtering mandate, ignoring the largest petition in EU history and the people who marched in 50 cities. That was recursive institutional reproduction in action all right.

Likewise, TPP can't be understood as the tech sector sidelining the entertainment companies - because both of them rallied for the parts of TPP that feathered *all* their nests.

38/

For example, the entertainment sector and the tech sector both love rules against reverse-engineers (like Section 1201 of the DMCA), which make it a felony to unlock your books, music, games and videos from the store that sold them to you and take them with you to another player.

Tech loves this because it gets them lock-in - if you break up with Amazon, you have to kiss your Kindle and Audible books goodbye.

39/

Media loves it because it gives them control - DRM stops you from recording Christmas movies between Feb and Dec, when they come free with your streaming service, and that means you have to pay-per-view them in December, when you want to watch them.

In other words, the Big Tech and Big Content's policy fights aren't so much about which policies we get - they're about who gets to profit from them.

40/

They both want the same stuff - no taxes, no unions, no minimum wage, no consumer rights, no privacy - but they each want to hoard the benefits from that stuff.

Both tech and media love "IP" - not in the sense of "copyright" or "trademark," but in the sense of "any law that lets me control the conduct of my competitors, critics and customers":

locusmag.com/2020/09/cory-doct…

41/

Cory Doctorow: IP

You’ve probably heard of “open source software.” If you pay at­tention to the politics of this stuff, you might have heard of “free software” and even know a little ab…

^{Locus Online}

In USMCA, it wasn't just the "Digital Trade Agenda" that made it into the final agreement - it was mandatory DRM laws, massive copyright extensions, and the evisceration of fair use and its equivalents in Mexico and Canada:

pluralistic.net/2020/08/01/set…

There's another important factor missing from Li's analysis of the rise of the Digital Trade Agenda: #monopoly.

42/

Tech used to be composed of hundreds of competing firms that hated each other's guts and were incapable of working together. The entertainment industry, by contrast, was already hugely consolidated and able to lobby effectively as a body.

That was hugely important in the Napster Wars, when international copyright proposals like the Database Right and the Broadcast Treaty were popping up at the UN and in country-to-country trade deals.

43/

While the tech industry was competing to give users a better deal, Big Content was able to solve the #CollectiveActionProblem and come up with a common lobbying position, getting nearly identical (and absolutely ghastly) tech bills introduced in dozens of state legislatures at once:

web.archive.org/web/2003042521…

44/

The rise of the Digital Trade Agenda is downstream of tech industry consolidation, the orgy of mergers that saw the internet transformed into "five giant websites, each filled with screenshots of text from the other four":

twitter.com/tveastman/status/1…

Li's taxonomy of regulatory capture is useful and important, and it's complimented by an analysis of failures in #antitrust enforcement.

45/

Market consolidation has produced firms that are more powerful than the governments that are supposed to keep them honest. When the teams have more power than the ref, the game will never be fair:

doctorow.medium.com/small-gove…

The tech industry aren't really adverse to the entertainment industry, at least not where it counts. They are all part of the #BusinessLobby, whose regulatory priorities are broadly shared, even if they disagree at the margins.

46/

Small Government - Cory Doctorow - Medium

Next week (Feb 8–17), I’ll be in Australia, touring my book Chokepoint Capitalism with my co-author, Rebecca Giblin. We’ll be in Brisbane on Feb 8, and then we’re doing a remote event for NZ on Feb…

^{Cory Doctorow (Medium)}

Dayen describes how the Digital Trade Agenda is playing out in IPEF, the treaty with more than a dozen Pacific Rim countries: "It would prohibit governments from reviewing or prescreening algorithms for violations of labor law, competition policy, or nondiscrimination statutes. It would bar limitations on data flows or storage.

47/

"And it would treat policies that have greater impacts on the large tech firms as illegal trade barriers. These terms could block signatory countries from writing laws that take on any of these issues."

Those aren't *tech* priorities - they're *corporate*. The success of the "Digital Trade Agenda" isn't just because tech grew up and started lobbying - it's because the things they lobby for are the things every business wants: no labor protection, no antitrust, no privacy.

48/

That's the "schema" that matters: the bedrock assumption that job of US trade policy is to make sure that workers and residents abroad have no rights, with the obligation on America to dismantle the few rights that remain intact in its borders to satisfy the "obligation" it actually insisted on.

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