TPP & Video Game Development

by Chris Mchale

1st Published by Streamline Media 

August 2016

Prime Minster Lee Hsien Loong of Singapore had a lot to say:


"For America's friends and partners, ratifying the TPP is a litmus test of credibility and seriousness of purpose." 


The Trans-Pacific Partnership negotiations have been on-going since 2011. Five years of off-the-record meetings and negotiations involving a dozen economies scattered around the Pacific Rim. (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States.)


Now American President Obama has 100 days (give or take a day) to get this done. Congress is ready, but a lot of folks are nervous about signing off. And if you think reading and absorbing 6000 page legalize text and all around global is fun, or a beach read, think again.


To me, the subtext of the Prime Minister’s statement is get it done now because the next American president might kick it to the curb, and with it all the work and plans the region was counting on for the next fifty years. Whoever the next president might be (Clinton 76% chance, Trump 22% chance) the TPP is in serious trouble in the US. Say the word 'globalization' in a place like Ohio (a battle ground-state in the November election) and you’ll get yourself turned into a full-time mascot at a local bar league softball game. 80% of American politicians are up for election in November. Take a guess at how many of them are stomping around their district singing praises of the TPP?


So much has been written about his thing, and I have to say, about 90% of what I read is essentially bullshit. How could it not be? First, nobody even had the document until six months ago. Second, it's a hard slog getting through it. I'm enough of politico-geek to try it, and my hobby is arcane language written by low-level staff members of economic ministers. But wow. What does it all mean? Does anybody know? And is this thing even legal?


Let's start with that last question first. The short answer is no, the TPP is not law, not binding even. It's an ‘obligation.' An 'obligation' can go all the way from 'you have to do it', to 'it’s a favor', and that’s a lot of wiggle room. You leave that kind of wiggle room in a document and you can count on a lot wiggling; especially, when your ‘obligations’ stretch across a dozen borders and cultures and languages. The TPP is like retirement savings for lawyers. Disputes in this thing are going to keep judges pounding gavels for years at a time. So there’s that.

But what on earth can all this fret and worry have to do with Pokemon Go? Or any video game development?


I'm glad you asked. This is, after all, a post about that very question. So here is my dollar store explanation of a single critical issue put together after too many hours in the coffee shop reading. The whole treaty affects everything to do with the video game industry, but one particular article hones in on the matter (and fears).


First, here is the TPP. Read it yourself. Good luck.


Okay, finished? Here we go.




Nail me to a tree, right? The copyright discussion usually turns into a bloody hack fest when discussed by video gamers. Me? You don't want to know what I think because I'm most likely on the opposite of everything in your religion. I like copyright. I've made a good living from copyright. I want it to last forever. So yeah, let's keep it civil and say this: The TPP doesn't change a damn thing about copyright. I mean you didn't think it would, did you? Or even could? It levels the playing field in that American practice will most likely be the ‘obligation,' which means the life of the IP owner and 70 years. I say obligation because it's not the law to do that. Here's an actual quote:


Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.


Note ‘digital environment.’ That’s the footprint of Microsoft and Sony and every other heavy hitter in the video game industry. Do I think this is a lethal spear into the gut of data miners and modders? Nope. The laws in place are the laws in place. I see this as global ass-covering, mainly. It was uncool (and illegal) to rip off somebody's work before, and it's still uncool. Keep calm and play on. Wear your cos-play outfit in peace; especially if you're blind.




And then there’s the DRM issue. Check this out.


Each Party shall provide for criminal procedures and penalties to be applied if any person is found to have engaged wilfully and for the purposes of commercial advantage or financial gain in any of the above activities.

A Party may provide that the criminal procedures and penalties do not apply to a nonprofit library, museum, archive, educational institution, or public non-commercial broadcasting entity. A Party may also provide that the remedies provided for in Article 18.74 (Civil and Administrative Procedures and Remedies) do not apply to any of the same entities provided that the above activities are carried out in good faith without knowledge that the conduct is prohibited.

For greater certainty, no Party is required to impose civil or criminal liability under this subparagraph for a person that circumvents any effective technological measure that protects any of the exclusive rights of copyright or related rights in a protected work, performance or phonogram, but does not control access to such that work, performance or phonogram.


They should have paid me to write this thing up. I see all that as reducing to something like this:

If you break DRM, and you don't re-sell stuff, it's between you and whoever, your choice, but the TPP police aren't coming for you.


More pithy, right? Look, I can be as naive as the next guy with a laptop and a basement, but so far the TPP is not tying my whitey-tightys into a knot.


More to come, I'm sure. There are issues around trade secrets and corporate law-bending, and evil mega-corporation with appetites for your babies. Massive, clumsy free-trade deals are on the I-hate list of every blogger and social media maven from here to Alpha-Centauri. But unless you think somehow we're going to end globalization and return to either a Games of Thrones world (unlikely) or a Walking Dead world (more likely) we need to figure out how to trade. Just like Louis Ambroise did. (Look it up.)