A DISCUSSION OF LAW AND JOURNALISM

ACTA: A Treaty by Any Other Name

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By Ryan Morrison

Grab your pitchforks and torches, folks, it’s time once again for the internet to get angry! It was barely over a week ago that the web went dark in protest of SOPA and PIPA, evoking a grass roots movement unlike any other. Millions of angry citizens called, e-mailed, or petitioned their representatives to pull support from the two bills, and many did just that. So, alright! We win!

Well, actually, we don’t. Not yet, anyway. We may be an angry mob, but we’re also much less experienced down the rabbit hole of the political wonderland that our representatives call home. Allow me to introduce the Anti-Counterfeiting Trade Agreement. Imagine a version of SOPA or PIPA, agreed to on an international level.

Since it was made public by Wikileaks in 2008, there have been strong opponents of ACTA, but far fewer than the multitudes who railed against SOPA or PIPA. The best-known piece to have come out against ACTA is a 2010 letter signed by over 75 legal academics, including New York Law School’s own Professor David Johnson.

In recent weeks, a large number of online protestors came forward, begging the president not to sign ACTA, but turns out he had already signed it last October — (whoops! A little late guys!) —  at a signing ceremony in Tokyo.  Also in attendance and signing on:  heads of state from Australia, Canada, Japan, Morocco, New Zealand, Singapore, and South Korea.

In addition, as I’m writing this article, there are reports that ACTA was just ratified by 22 European nations with the rest expected to follow shortly. This has led to many large-scale protests (some Polish Parliament members even showed up in Guy Fawkes masks) throughout the continent.

With ACTA signed into law by President Obama, American protestors, realizing they were a little late to the protest party, claim, in effect, that the party ain’t over yet.  Petitions and articles are cropping up, questioning the constitutionality of President Obama signing ACTA with no intention of letting Congress ratify it.

The issue comes down to this:  Does President Obama need this “treaty” ratified by Congress as protestors claim, or is this an “executive agreement” within his power to sign into law as the administration claims? Plenty of opinions out there. (see here, here, and here).  LASIS sticks to  the facts.  

First and foremost, let’s make sure we all understand the difference between an executive agreement and a treaty. Basically, an executive agreement can only be negotiated and entered into through the president’s authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, (3) from a prior act of Congress, or (4) from a prior treaty. EA’s can trump state laws, but not federal laws. Treaties on the other hand, need to be ratified by Congress, and can change federal laws. Get it? Beautiful.

The first question we need to answer is, “Would ACTA change any federal laws?” If it does, it is clearly a treaty and would need to be ratified by Congress.

Article 1.2 of ACTA states:

“Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”

Now I’m no expert on international agreements, but that clause seems to me to be saying, “My country can ignore whatever parts of this new law we want to, if we feel any of it doesn’t synch our own country’s laws.” As it turns out, people who are experts on international agreements agree with me. Including the Office of the United States Trade Representative. So it doesn’t seem to me that any laws would be changed by ACTA…

Of course, if we can all ignore any part of ACTA we don’t like, then what the heck is the point of the act in the first place? A fair question, and one already asked (in this context) by Mike Masnick, of Tech Dirt, a terrific and prolific writer on the subject. He believes that this clause is just a method of getting the thing passed, and now that it was, we’ll see lobbyists screaming and hollering about “international obligations” to eventually get the laws they want passed, passed. And they’ll do it using ACTA as their platform.

I agree 100%.  But that doesn’t change the fact that this act isn’t changing any laws. And although we can all point at very obvious ramifications this will have on our legal system, we can’t use that as a legal basis to knock it down or demand ratification by Congress.

A key question, and one that really doesn’t have an answer yet, is whether or not the president can enter into an executive agreement involving intellectual property at all. IP is one of the enumerated powers delegated to Congress in Article I Section 8 of the U.S. Constitution and many, including Senator Ron Wyden (D-Oregon) argue that President Obama has no business making IP policy. Recently, he has submitted a letter to President Obama asking three very important questions, the third being:

“What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law?”

Back to the Constitution.  Article I Section 8 says that one of the Powers of Congress is “To promote the Progress of Science and use Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is known familiarly as the Copyright Clause.”

As I said, Senator Wyden’s question is an important one.  As I said too, we just don’t know the answer.

Ooana A. Hathaway and Amy Kapczynski at the American Society of International law point out: “No comparable agreement has been concluded in this way. Thus if concluded as a sole executive agreement, it would represent a significant expansion of the scope of such agreements.”

Perhaps.  But that does not mean that President Obama’s signing ACTA was an abuse of power. It just means these are untested waters.

Hold on.  This could be a bumpy ride.

Comments

36 Comments »

36 Responses

  1. Jose Pereyra says:

    Hi, Im a lawyer from Argentina, some websites claim that there are not fair use provisions in ACTA, but we can find this:

    8. In providing adequate legal protection and effective legal remedies pursuant to
    the provisions of paragraphs 5 and 7, a Party may adopt or maintain appropriate
    limitations or exceptions to measures implementing the provisions of paragraphs 5, 6,and 7. The obligations set forth in paragraphs 5, 6, and 7 are without prejudice to the RIGHTS, LIMITATIONS , EXCEPTIONS , or defences to copyright or related rights infringement under a Party’s law

    What is your opinion?

  2. Dan says:

    Honestly man, I just want everyone to stop fighting. I think the internet should be left as it is, and that is that. I’m in a band and am looking forward to recording music and having people torrent it. I’m going to give my music out for free for a while. I already do now. How am I supposed to give out free music online with SOPA and PIPA? I can’t email my stuff to tons of people, because I wouldn’t know who to email it to.

  3. Ryan Morrison says:

    @Mr. Pereyra – I haven’t heard the fair use complaints myself, but what you have pointed out seems to contradict any concerns very nicely.

    @Dan – Keeping in mind that I am completely opposed to all three of these bills, it is important ot understand that they ARE in fact three different bills.

    SOPA and PIPA have nothing to do with eachother and especially nothing to do with ACTA. Piracy is a major concern for the entertainment industry and not one they’re going to just ignore. The problem is SOPA and PIPA are much too far reaching and remove a lot of the due process we deserve.

    That said, no one is going to shutdown a website where you are giving away your music, unless you are also giving away artist’s music who do care.

  4. Kristi Harris says:

    Insightful regarding constitutionality of ACTA. I learned from this, and will pass it on. Thanks.

  5. Jose Pereyra says:

    Mr Morrison:

    i found this, (well, is an iranian website) :

    “”This new treaty gives foreign governments and copyright owners incredibly broad powers. If you are alleged to have violated a copyright, your website can be shut down without a trial and police may even show up at your door to take you to prison. It doesn’t even have to be someone in the United States that is accusing you. It could just be a foreign government or a copyright owner halfway across the world that alleges that you have violated a copyright. It doesn’t matter….. Big sites like YouTube, Facebook and Twitter may just decide that it is too much of a hassle to monitor millions of pieces of content. Allowing users to constantly post content on their sites would be a huge risk. In fact, if they are found to be allowing “copyright infringement”, those sites could be permanently shut down””

    ??? is this for real?? or are we just geting paranoid?, of course, what can you expect from a iranian news website, but do we really have to worry about the future of Wikipedia???

  6. Willam says:

    The fact that these are “untested waters” means it is even shadier how this act was negotiated in such extreme secrecy. Why are more senators not up in arms about this?

  7. Ben Brooks says:

    Hold on one second. If ACTA is truly in effect right now, then how come we haven’t noticed many changes?

  8. Dan says:

    I think because it needs to be ratified by all the signatories to go into effect. Interesting question though. Should be more info on that!

  9. Redditor says:

    Of all the sources I’ve read on this subject, leave it to a school’s blog to make the most sense. Well written piece!

  10. RedAussie says:

    So excuse me for the confusion, but if Congress wants so badly the chance to ratify this act (presumably so they won’t ratify it and it dies), why don’t they just make a law that nullifies it entirely? EA’s can’t trump laws, so change the bloody law!

  11. Kabo-b1 says:

    So several significant nations signed this broad-strokes agreement that didn’t inherently alter anything immediately, but could pave the way for some bad voodoo.

    I think an interesting question is whether or not this would have been picked up at all if SOPA and PIPA hadn’t been introduced, stirring up the populace.

  12. Phil Walker says:

    I’m convinced no one has actually read any of these bills! I spent all day yesterday on Twitter seeing constant updates about how “Did you hate SOPA and PIPA? Then you’ll really hate ACTA!” But this article makes ACTA seem like a declawed kitten.

  13. Neilsen says:

    @William – More senators arent probably because they want to stay as far away from this stuff as possible. They saw the SOPA uprising and now they’re stuck picking between the youth generation on the internet or the old folks who think we’re all thieves.

  14. Gia says:

    What is happening in this world!

  15. Ha says:

    Is there anything you lefties won’t defend Obama over? Jesus

  16. Kris Zachman says:

    Interesting

  17. Oliver Caldwell says:

    People would rather be angry than informed when it comes to things like this. Amazing that so many are still calling for Obama not to sign. I don’t think 1.2 is as clear as you make it sound. The UK has said that countries will be expected to enact legislation after ACTA goes into effect. That would change the source of the argument here.

  18. Ha says:

    New world order step 1.

  19. Ha says:

    Can’t delete my comments! You can’t silent truth. Obama is part of the PROBLEM and the people are waking up.

  20. Ryan Golden says:

    Knowing the author, thought you’d go the other way on this.

  21. S.P. says:

    @Ryan Golden: Why, is the author usually unfair? Because I get the feeling the author is no fan of ACTA but analyzing he law, sees there’s no cause to go ballistic.

  22. Tiz says:

    Informative article, I cant see it having much of an effect on our laws without being ratified. Same as the Kyoto agreement and other international “contracts” that have had lilttle to no bearing on our policy for trhe same reason. Although you made a good point of it being used as a platform for laws to be passed much like Kyoto…

  23. Ryan Golden says:

    @S.P: “Fair” is something you don’t see much of nowadays. Didn’t mean it as an insult. Was really refreshing to see.

  24. EmeraldXCapade says:

    So you’re saying its over then? Great!

  25. S.P. says:

    @ Ryan Golden – you said that you know the author and thought he’d go the other way. Many law students (seems students write these pieces) are knee jerk anti-regulation for IP stuff. And I think the author likely feels that way himself but you’re right, it’s refreshing to see a fair article on the subject — everything has become so politicized.

  26. Ok,

    Coming from a backround in Information Technology, Specializing in Network Administration:

    I believe the current text proposed before the multiple heads of state needs to be re-written, with opinions from several thousand experts from the various fields involved. Why? Because the current ACTA bill that is signed, not ratified, was signed without opinions from technology experts. Why is this so important? Because this bill will very much have ALOT of profound effects on how the internet functions as a whole.

  27. Seluen says:

    Over here in Sweden ACTA was signed by someone from the DOJ (unelected!!!) You guys are lucky you can even have this part of the debate.

  28. PatriotAnon says:

    @Lemuel: There is film I saw on the Daily Show of our senators asking to bring in “nerds” to help with the bill. THEY SHOUND LIKE HIGH SCHOOL BULLIES! Seriously! These are out government officials! I THINK THE TERM IS EXPERTS NOT NERDS!!!!

    VOTE FOR NO INCUMBENTS !

  29. BobLouisiana says:

    He´s just another pawn of #Hollywood who must do their bidding! At least in Europe the EuroParliament listens to the protest of the people and will turn it down. A lesson for Obama.

  30. Kris Zachman says:

    @Lemuel: I also work in IT and I think that while a lot of people don’t understand what we do or how the internet actually works, Congress apparently doesn’t understand AT ALL. It’s a shame because Obama has been SUCh a tech friendly prez for most of his tenure.

    There goes that legacy…

  31. Nord says:

    @Kris: haha yup! show me the TCP/IP-packet with the label “commercial” on it. :P

  32. Number 1 Nerd says:

    @Seluen – Well, yeah, we’re having a debate here, but other than my writing a note to a guy from Sweden right now — what good’s the debate going? Just saw Dragon Tattoo. Sweden ROCKS.

  33. To put it into realistic scenario:

    Lets say you are going to do research on a particular subject. Depending on the research, it could take you months to put up a paper that fits “Legal” standards. Everything that has a copyright on it is subject to authorization from the original person who got it copyrighted to be used on whatever you are creating. Why? Because the ideas or opinions that you propose on your research paper can be copyrighted or patented by someone else. That means, that under ACTA, the “Trade Enforcement Agency” or whatever agency will be in charge of enforceing ACTA, will be able to prosecute you on whatever punishments the geographical region you are located in has.

    At least thats my legal understanding of it.

    Now, in order to understand why ACTA is so harmful to the current anonymity of the internet, is because of the technology that has to be developed in order to enforce ACTA.

    You have heard about the FBI wanting to monitor Social Media. That is just the tip of the iceberg. ACTA gives justifyable reason to spend tax dollars on research for more advanced monitoring software of data that flows in and out of the web. This also means that, if the federal government thinks you are using your access for illegitimate reasons, they can ban you from your internet access.

    Think about what this means. To be banned from the internet. How will this be possible. From a technology standpoint, this means that the type of security that will be implemented on the internet will require your personal information to be available to any company or any one who thinks you are stealing their material, and/or downloading illegal material.

  34. and thats just from a basic understanding of technology. Im glad there is alot of understanding on this issue in terms of how ACTA was drafted. @PatriotAnon i saw that too. i was very offended that politicians think that we are just a bunch of nerds. These are supposed to be the heads of our country. They are supposed to have the common sense to say “Hmm, i wonder if we should ask the people that make this run on a daily basis, if such a bill can even work”

  35. Number 1 Nerd says:

    Hey, @lemual bezares, i for one am proud to be a nerd. no offense taken at all.

  36. KEN says:

    If ACTA passes to law…..can they go back say a few years…..or will past activity’s
    be overlooked. Why i ask this cuz probably most people will have unwittingly broke one of these crazy laws!!

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