[derekerdmann]

I'm not convinced this analysis is reading the draft fairly:

... if you need to circumvent a DRM for personal use, you are now liable for criminal penalties. Traditionally, for many jurisdictions, circumventing DRM is typically reserved for civil penalties. Criminal penalties implies that the government would foot the bill for enforcement. In civil cases, it is typically rights holders that go after individuals."

Except that here's the actual text:

> Each [7] Party [US/SG/MX/NZ/PE/JP/BN/AU/CL/MY propose: shall] [CA propose: may] provide for criminal procedures and penalties to be applied where any person is found to have engaged willfully and for purposes of commercial advantage or financial gain in any of the above activities.

That doesn't sound like "if you need to circumvent a DRM for personal use, you are now liable for criminal penalties" to me.

[walterbell]

Your quoted text is a sub-clause of (ii) below, which applies to device supply chains.

Personal, non-commercial circumvention of DRM is addressed in (i) below.

"(i) knowingly, or having reasonable grounds to know,[174] circumvents without authority or any effective technological measure that controls access to a protected work,[175] performance, or phonogram;[176] or

(ii) manufactures, imports, distributes[177], offers for sale or rental to the public or otherwise provide devices, products, or components, or offers to the public or provides services, that:"

[anigbrowl]

No it isn't. It's part of the superordinate clause (a), and you can tell that because the subclause of (ii) that you mention has further subclauses ((A),(B),(c)) which end with a period. Think about how this would be indented:

  1. *Blah blah blah.* Blah blah, blah blah blah blah blah:
    (a) blah blah blah; blah blah, blah blah blah where
      (i) blah blah, or
      (ii) blah blah blah, blah:
        (A) blah,
        (B) blah blah, or
        (C) blah blah blah.

      Blah blah blah, blah blah blah blah blah.  *<< this is still part of subclause (1)(a)*

    (b) Blah blah blah [...]

One of the depressing aspects of this whole TPP/TTIP debate here on HN is that although most people here either write code for a living or at least know how to do so, very few have ever thought through the fact that there are rules of scope in legal documents as well.

I appreciate that such documents are very confusing, even more so when they are in draft form and include multiple 'live' options (rather like improperly declared constants in programming), and more so again when they're presented as just a big wall of text without any typographic structuring that would make them easier to read. Parsing such complex documents is difficult; if it were easy then courts would be less busy than they are. But a great deal of the 'analysis' of the impending trade agreements (as well as other legal stuff that is sometimes posted to HN) seems to start with an assumption about meaning or purpose, and then go through the text looking for clues to back it up. This is a fast track to self-deception and eventual defeat in the event of a dispute.

I'm not a lawyer, just a law nerd.

[derekp7]

So this sounds like using one of the Youtube Downloader applications could land you in hot water -- even though there isn't any cryptographic DRM on youtube videos, it could be argued that since there isn't a Download button on the page, this is an "effective DRM measure", and that the downloader app could be a circumvention measure.

[jsprogrammer]

>any effective technological measure

How effective is a measure if it was just circumvented 'without authority'?

I'm sure this is just one of many contradictions in the final document. I guess we'll get to see soon.

Any programmers in the negotiating committees perchance?

[segmondy]

Don't be naive. If you circumvent DRM or protection, i.e jailbreak your phone. Then you share it with the world on your website, because you believe in user's freedom.

Well, you're screwed if you have ads on your site. Imagine, your site get's popular. You make lots of money from google ads. Ooops, you did it for financial gain. Try proving you didn't.

[roel_v]

What part is contended? In your example, the person is making a profit from willful copyright infringement. If this is the most sympathetic hypothetical 'victim' you can come up with, you're going to have a hard time convincing anyone of the 'injustice' of this agreement...

[hardwaresofton]

Depends on how you define "financial gain". Bootleggers are one thing -- but if some big company decides that you saving money on DVDs you would have purchased otherwise is "financial gain", things could turn very quickly, right?

The mere possibility of a criminal penalty POSSIBLY applying is a big move.