Harvard profs trash ACTA, demand oversight, threaten lawsuit

Harvard Law School professors Lawrence Lessig and Jack Goldsmith took to the op-ed page of the Washington Post today to slam the Obama administration's approach to the Anti-Counterfeiting Trade Agreement (ACTA)—and to threaten a lawsuit if ACTA is signed without Congressional oversight.

The US has positioned ACTA as an executive agreement rather than a treaty. Such a move means that ACTA doesn't need Senate approval, but it also means that the agreement should not alter US law, either. If you want to change the law, you go to Congress.

Lessig and Goldmsith argue that ACTA, at least it its current leaked form, does involve "ideas and principles not reflected in US law."

Example number one is a pretty poor choice, in our view; the professors say that "ACTA could, for example, pressure Internet service providers—such as Comcast and Verizon—to kick users offline when they (or their children) have been accused of repeated copyright infringement because of content uploaded to sites such as YouTube."

As we've noted before, though, the language here comes from the Digital Millennium Copyright Act—already US law. The leaked drafts show that ISPs need policies in place to deter repeat infringement; a footnote suggests that "three strikes" Internet disconnections might be one appropriate way to do this, but would not be required.

The more fundamental complaint is that the president simply doesn't have the power to negotiate executive agreements on IP law and communications policy.

"The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect US domestic law," write the professors. "Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected."

They recommend that Congress stand up for its rights and insist on being consulted—something that (now Vice President) Joe Biden did to the Bush administration when he was a senator. If ACTA is signed without such oversight, Lessig and Goldsmith say it will "be challenged in court."

Source: Arstechnica.com

Your life will some day end; ACTA will live on

The Anti-Counterfeiting Trade Agreement (ACTA) isn't just another secret treaty—it's a way of life. If ACTA passes in anything like its current form, it will create an entirely new international secretariat to administer and extend the agreement.

Knowledge Ecology International got its hands on more of the leaked ACTA text this week, including a chapter on "Institutional Arrangements" that has not leaked before. The chapter makes clear that ACTA will be far more than a standard trade agreement; it appears to be nothing less than an attempt to make a new international institution that will handle some of the duties of groups like the WTO and WIPO.

Why bother? Well, from the perspective of countries like the US, the existing institutions have problems. For one, they feature a huge number of nations, some of whom have blocked some of the anti-counterfeiting provisions desired by the US and others. Call this the UN problem—getting much done with so many people in attendance can be tricky, and ACTA has become a "coalition of the willing" who have decided to go form their own club instead.

But WIPO, especially, has also opened up over the last decade, and now has robust rules for the participation of consumer groups and other non-governmental organizations. It also requires far more transparency, with the publication of proposals and draft texts throughout a negotiating process. As we have seen too clearly, ACTA has none of this.

Jamie Love of KEI claims that the US Trade Representative has already "told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum."

The new ACTA secretariat won't be a mere administrator. The leaked chapter makes clear that the new governing body will "make recommendations regarding the implementation of ACTA" and will itself "identify and monitor techniques of piracy and counterfeiting."

In other ACTA news, a separate chapter has also leaked, and in it the EU wants to make sure that criminal penalties exist for "cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale." On a "commercial scale" doesn't mean that such infringement must be done for financial gain, however; it also includes "significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain."

Despite the public support of President Obama, ACTA is running into bad press throughout the world. The European Parliament last week even managed to pass a strong resolution of displeasure with the ACTA process, which passed 633-13.

Source: Arstechnica.com