USTR Insists Gov't Isn't Keeping ACTA Secret

from the up-is-down,-black-is-white,-you-said-what-now? dept

Fri, Feb 5th 2010 11:20am — Mike Masnick

Stan McCoy, the assistant US trade rep, is apparently the new point man from the USTR office on jaw-dropping political doublespeak about ACTA. You may recall a few days back when McCoy insisted that there was a lot of misrepresentations about ACTA, but failed to clarify any of them. Instead, he started talking about the dangers associated with counterfeiting (something no one denies) and then simply wrapped copyright infringement into that -- even though copyright infringement and counterfeiting are entirely different. Now, McCoy has gone even further. Jamie Love points us to a letter he sent the Financial Times, where McCoy insists that there is great openness about ACTA. He kicks off with another bogus attempt to blur the lines between counterfeiting and copyright:

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

See the switcharoo in the middle there? He starts of talking about intellectual property... but then in the middle lumps counterfeiting and infringing (which he falsely calls "piracy" even though he's not talking about what's happening off the Somalia coast) together, and then at the end he's really only talking about counterfeiting, but to the untrained observer, they still think he's talking about copyright infringement. That's political bullshitting. And I won't even get into the evidence that raises serious questions about whether his first sentence is true at all, but will mention there's a lot of data that suggests IP actually limits jobs and slows down innovation and creativity. But, at this point, I think McCoy has already established that the USTR is not a fact-based organization.

The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy -- not to "transform" already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Okay. Pick your jaws up off the floor. That last sentence is so ridiculous and so false; it's amazing he thought that he could get away with it. Exactly which governments have "sought public comments" on ACTA? The answer? None. Why? Because no government has yet revealed what ACTA is officially. Hell, in the most recent ACTA negotiations, held in Mexico, the government wanted to force the public to sign NDAs just to attend a public meeting, and then had industry representatives mocking public concerns and demanding that a blogger leave the proceedings for live Tweeting the meetings. Yes, "sought public comments" indeed. Does he think that if he says day is night people just believe him? And the idea that the government is "far from keeping [ACTA] secret" is pure hogwash. A comparison of ACTA secrecy to similar negotiations suggest that ACTA is being kept exceptionally secret.

Furthermore, if the laws are already strong, then what's the point of ACTA?

Among other things, the summary states clearly that "ACTA is not intended to interfere with a signatory's ability to respect its citizens' fundamental rights and civil liberties".

Oh, well, if the summary states it, then why didn't you say so in the first place? Obviously there's nothing to worry about at all. Except... it doesn't appear that the actual documents follow what the summary says. Of course, we've only seen the "leaked" documents, but they certainly suggest plans to interfere with fundamental rights and civil liberties on a pretty widespread basis. Supporters of ACTA even talk about "dragging countries in the 21st century" by forcing on them DMCA-type laws and requiring secondary liability that flat out violates basic fundamental rights. The fact that the "summary" says so isn't convincing, Mr. McCoy. It just highlights that you're hiding what the document actually says.

So, come on, Mr. McCoy. Stop treating concerned citizens like we're idiots and maybe respond to the actual concerns of citizens around the world.

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Filed Under: acta, copyright, counterfeiting, secrecy, stan mccoy

56 Comments

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Anonymous Coward, 5 Feb 2010 @ 11:27am

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Designerfx (profile), 5 Feb 2010 @ 11:33am

FOIA?
has someone actually FOIA'd the ACTA?

I tried once and got idiotic responses, and dropped it because it was early in the process and I was afraid to be on record for FOIA'ing it.
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Richard, 5 Feb 2010 @ 11:41am

Thats good stuff
This is the kind of ACTA coverage that would make headlines if the media wasn't putting the kibosh on it.

+1
ACTA = Political Corruption.
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Anonymous Coward, 5 Feb 2010 @ 11:45am

1. Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.

2. For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?
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Anonymous Coward, 5 Feb 2010 @ 11:58am

For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?

Can't be answered smart guy. NO ONE knows what's in ACTA.
It's only in the discussion that the proponents hint that such issues may be on the table, due to the blurring,contrary to your first point.

You were saying?
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jhn, 5 Feb 2010 @ 11:59am

Sure, #4. How about mandatory 3 Strikes, sold as "enforcement" rather than "substance" even though it imposes new liability on new parties?

How about codifying secondary liability, a judge-made doctrine found in no statute, in the US and around the world? Again, this will be sold as "enforcement" and not "substance," even though it makes a formerly not-liable party subject to legal liability.

ACTA is rife with proposals that make people liable for other people's law violations.
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Nastybutler77 (profile), 5 Feb 2010 @ 12:01pm

Could it be?
Is The Anti-Mike actually Stan McCoy? They both have a knack for saying something that is demonstrably false with conviction, and they're both shills for the entertianment industries. Has anyone seen them in the same room at the same time?
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RD, 5 Feb 2010 @ 12:02pm

ACTA
"1. Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.

2. For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?"

TAM, stop trolling as an AC.

1) Then why is ACTA SPECIFICALLY about counterfeiting? Why the secret backdoor-style additions and changes to copyright being piggy-backed onto it?

2) You keep asking this question, it keeps getting answered, yet you keep asking as if it wasnt. This has to to with the whole "harmonious" synchronizing of treaty terms. Once this gets put in place, EVERYONE must change their laws so they all match the treaty, basically.
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hegemon13, 5 Feb 2010 @ 12:04pm

Re:
"For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement."

No, there is not an overlap. You're just talking about one action that breaks two laws. A bootleg DVD is copyright infringement in many cases. Selling a DVD using studio trademarks, such as title, logos, and artwork, is counterfeiting. The case of counterfeiting would still be counterfeiting if the disc inside was blank. The case of copyright infringement would still be copyright infringement (but not counterfeiting) if you labeled a burned disc with a Sharpie and sold it in a paper sleeve.

So, no overlap there. Just one action that can, conceivably, be two separate violations.
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Esahc (profile), 5 Feb 2010 @ 12:09pm

Re:
How can that be answered when no one in the public is allowed to know what's happening with ACTA.
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The Anti-Mike (profile), 5 Feb 2010 @ 12:14pm

Re: ACTA
RD, please take your meds, that wasn't me posting. If you can't accept that other people might have an opinion opposite to yours, perhaps you should unplug your computer and get off the internet, because you are going to be disappointed very often.
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Mike Masnick (profile), 5 Feb 2010 @ 12:16pm

Re:
1. Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.

As others have pointed out, they are two separate things -- sometimes done together. If you want to stop counterfeiting, focus on counterfeiting, but throwing copyright infringement in there is different. In fact, studies have shown that other forms of copyright infringement have harmed the DVD counterfeiting business -- showing how they are two separate things.

2. For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?

Again, others have answered this already -- and if you are who I think you are, and why don't you come out and admit it since on blogs where you attack me you have no problem signing your name -- adding secondary liability and a stronger requirement for three strikes, while leaving out consumer protections/civil rights protections found in other agreements, are all things that have been seen in leaked documents.

But, of course, how can we know since it's all secret? Do you not see that as a problem? You seem to think that there's no right to complain until it's too late to complain. Do you really support that position?
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deadzone (profile), 5 Feb 2010 @ 12:19pm

Re: Re: ACTA
You do know that there are ways to find out the truth don't you? It's certainly typical behavior on the Internet to post things on sites with more than one handle. :)
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Richard (profile), 5 Feb 2010 @ 12:24pm

"Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement."

A counterfeit DVD of a movie under copyright is a counterfeit and NOT a copyright infringement because - if it is completely counterfeit then it would contain NO element of the original and thus it would be a pure counterfeit but not a copyright infringement. (EG a blank disc inside some fake packaging.)

On the other hand a complete copyright infringement. (i.e a perfect digital copy of the genuine product) that was labelled as "a copy of made by " would be infringement but would not be a counterfeit.

The two things may sometimes (even often)occur together but that does not make them the same thing.

Oliver Reed was a drunk and an actor - but that does not mean that drunkeness and acting are the same thing!
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Anonymous Coward, 5 Feb 2010 @ 12:44pm

Re: FOIA?
Perhaps the EFF could.
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Anonymous Coward, 5 Feb 2010 @ 12:48pm

"Jamie Love points us to a letter he sent the Financial Times"

and I bet you the MSM will only present one side of the issue if they present any side at all. The MSM is so misleading it's amazing.
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RD, 5 Feb 2010 @ 1:04pm

Re: Re: ACTA
"RD, please take your meds, that wasn't me posting. If you can't accept that other people might have an opinion opposite to yours, perhaps you should unplug your computer and get off the internet, because you are going to be disappointed very often."

But why? You do it. You accuse me of being an AC and some other people all the time. I correct you, Mike has corrected you, and you still do. Guess its OK for TAMHOLE to do it, but oh no! Dont let ANYONE else! It TAM Ok's it, its GOLD. If anyone else does the SAME THING, well then they are crazy, off meds.

In case you didnt already get it before, this is the definition of hypocrisy. TAM the amazing Hypocrite.

To the topic: WHAT has copyright to do with this treaty? And if its SO necessary, why wasnt it included as a main point before now? And why all the secrecy? Arent those who govern us supposed to INCLUDE us?
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jhn, 5 Feb 2010 @ 1:12pm

More ways that ACTA substantively could change US law--fair use. The euro tendency is to have a list of activities and parties that are allowed, limitations and exceptions, rather than a flexible standard.

Content industry has bitched for years that fair use brings the US outside of Berne.

It could additionally attempt to bring "related rights" within international IP treaties, and thus change US law--where before int'l "copyright" was a subset of US law, copyright and related rights are typically a superset.

Is the US required to "enforce" rights that don't exist in the US, but do in other countries? How about "moral rights of authors"?

What else. We shouldn't trust b.s. talk about it being just "enforcement"--see the broadcast treaty, which created a NEW RIGHT in the guise of enforcing broadcaster's somehow preexisting property interest.
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jhn, 5 Feb 2010 @ 1:14pm

Re: the broadcast treaty, I should of course say that it *attempted* to create such a property right. Because bullshit treaties can die in the sunlight in U.N.-run processes. Not so with ACTA.
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The Anti-Mike (profile), 5 Feb 2010 @ 1:20pm

Re: Re: Re: ACTA
walks like duck, quacks like duck, shits like duck, I call you a duck. You are more than angry enough to use VPN and other methods, so Mike wouldn't know (unless he is the one cowarding, which would be totally awesome).

WHAT has copyright to do with this treaty? And if its SO necessary, why wasnt it included as a main point before now? And why all the secrecy? Arent those who govern us supposed to INCLUDE us?

I don't KNOW at ALL. I am NOT sure WHAT you ARE trying TO ask ME.

Seriously, the government doesn't include you (specifically or generally) in everything they do. You aren't aware of all that is said in security meetings, you aren't privy to everything discussed in cabinet, and you aren't privy to everything discussed in a treaty negotiation.

Rather than hopping up and down and getting all ramped up about something you have no information about, why not save your energy for the point that the treaty is revealed and sent to congress for approval? If you really don't like it, make a stink when it is time to stink. Right now you are just like a shark eating chum that other people are throwing out there, but there is nothing in the water to really bite. Save your energy for when it might actually matter.
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Anonymous Coward, 5 Feb 2010 @ 1:46pm

Re: FOIA?
Pretty sure someone (EFF?) did and got denied due to BS "national security" "reasons."
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btr1701 (profile), 5 Feb 2010 @ 1:50pm

Re: Re: Re: Re: ACTA
> walks like duck, quacks like duck, shits like duck, I call you a duck.

Which is just what happened to you. But when people call you a duck, they're paranoid and off their meds.

You're basically saying, "I'm allowed to do it because by definition, I'm right, but no one else is because by definition they're wrong."

Your hypocritical double-standard is stunning to behold.
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Anonymous Coward, 5 Feb 2010 @ 2:00pm

Re: Re:
Nice segue into the irrelevant.

Secondary liability has been applied in copyright matters in highly unique circumstances and has long been a part of US law.

There is no "three strikes" in US law, and nothing contained in ACTA is going to change this.

I haven't a clue what you mean by consumer protections/civil rights protections as they may pertain to US law.

I would agree that one purpose of ACTA is to encourage foreign governments to enact laws and adopt rules pertaining to copyright. It is not, however, ACTA's purpose to change existing US law.

Re my name, I freely use it in professional matters where cordial discussions take place, even among persons having widely divergent views.
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The Anti-Mike (profile), 5 Feb 2010 @ 2:05pm

Re: Re: Re: Re: Re: ACTA
If RD's allegations about me being in "the industry" and taking orders from "overlords" was right, you would have a point. But as he is as wrong as they come, he doesn't get to call me out on it.

I am not sure if it's meds or a tin foil hat, but I know he is missing at least one of them.
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Anonymous Coward, 5 Feb 2010 @ 2:10pm

Re: Re: Re: Re: Re: Re: ACTA
I think you even said once that you at least worked for the industry before. but being how often we've caught you in blatant lies, I don't think anything you say means anything.
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btr1701 (profile), 5 Feb 2010 @ 2:28pm

Re: Re: Re: Re: Re: Re: ACTA
> If RD's allegations about me being in "the industry" and taking
> orders from "overlords" was right, you would have a point. But
> as he is as wrong as they come, he doesn't get to call me out on it.

And if your allegations about RD using other screen names to hide his identity were right, you would have a point. But as you have offered up no proof whatsoever of that "fact"-- indeed nothing but your own personal speculation and opinion-- you don't get to call him out on it.

It works both ways, my friend. Otherwise you become nothing but a hypocritical asshole and your credibility zeroes out completely.
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JR 3rd, 5 Feb 2010 @ 3:06pm

bring back dallas?
this is better than ever: TAM RD living it laldy.
Frak Glee.
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jhn, 5 Feb 2010 @ 3:13pm

Secondary liability, as an agency/tort principle applied to a copyright context is old, inducement is new. And all of it is judge made law. Note that when Congress stepped in, it limited ISP liability. A balanced policy argues against extending secondary liability for IP.

And anyway, secondary liability is substantive. Substantive substantive. Yet ACTA's defenders keep saying that the treaty is just about "enforcement."

ACTA won't change US law because it can't. Yet it will create an obligation for law to be changed, or at least guide interpretation. Eg, "avoid secondary liability, ISPs, by voluntarily enacting 3 strikes."

All rumors and hearsay. Speculation would go away if the freaking negotiating texts were public.
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JR 3rd, 5 Feb 2010 @ 3:15pm

bring back dallas?
ok would have funnier if i had spelled it correctly: living / giving
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JR 3rd, 5 Feb 2010 @ 3:20pm

bring back dallas?
ok would have funnier if i had spelled it correctly: living / giving
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RD, 5 Feb 2010 @ 3:20pm

Re: Re: Re: Re: ACTA
"walks like duck, quacks like duck, shits like duck, I call you a duck. You are more than angry enough to use VPN and other methods, so Mike wouldn't know (unless he is the one cowarding, which would be totally awesome)."

I am going to throw this in your teeth EVERY time you open your yap and try to deny you ever said anything, or are anything but a paid industry shill.

If its good enough for you, its good enough for me.

By YOUR OWN WORDS, you are an industry shill. Even if they didnt actually hire you, you still are, you are just too stupid to be getting paid for it. But you ARE doing their job for them, and you ARE a shill.

Quack quack.
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Anonymous Coward, 5 Feb 2010 @ 3:22pm

Re: Re: Re:
ACTA is 100% about countefeiting. It's right there in the title, so I don't know why everyone keeps talking about copyright? Copyright has nothing to do with ACTA as ACTA is all about counterfeiting. They wouldn't lie to us, would they?

Would they?!?
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Anonymous Coward, 5 Feb 2010 @ 3:24pm

Re: Re: Re: Re: Re: Re: Re: ACTA
When your principled position is built upon a bedrock of sand . . . .
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Mike Masnick (profile), 5 Feb 2010 @ 3:28pm

Re: Re: Re:
Secondary liability has been applied in copyright matters in highly unique circumstances and has long been a part of US law.

Since you were the one focused on Title 17, please point in Title 17 where secondary liability is included in the law?

Thanks.

There is no "three strikes" in US law, and nothing contained in ACTA is going to change this.

And you know this, how, exactly? Reports coming out of the Mexico discussions said it was very much on the table.

I haven't a clue what you mean by consumer protections/civil rights protections as they may pertain to US law.

Ah, pesky civil rights. Right to due process. Right to free speech. We can ignore those, right?

I would agree that one purpose of ACTA is to encourage foreign governments to enact laws and adopt rules pertaining to copyright. It is not, however, ACTA's purpose to change existing US law.

Again, requiring secondary liability and three strikes, limiting fair use, limiting safe harbors... none of that will change US law? Really?

Re my name, I freely use it in professional matters where cordial discussions take place, even among persons having widely divergent views.

I have yet to see that. I see that you use it regularly on sites of paid industry spokespeople to attack me. Why not stand behind your words here?
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Anonymous Coward, 5 Feb 2010 @ 3:30pm

Re:
It is a little hard to say for certain what part of Title 17 will be effected since official documents are kind of hard to come by (we have to rely on leaks)
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The Groove Tiger (profile), 5 Feb 2010 @ 3:35pm

Re:
There is overlap between shoe sales and counterfeit goods. For example, a counterfeit copy of a shoe is defininitely a shoe.

So we should create laws preventing the sale of shoes, as they're linked to counterfeiting.
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Anonymous Coward, 5 Feb 2010 @ 4:08pm

Re: Re: Re: Re: Re: Re: Re: ACTA
Considering he claimed that everyone (except him) should "learn to respect others", I'm pretty sure he already reached that point.
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The eejit (profile), 6 Feb 2010 @ 1:47am

We all need to hit the ACTA people with a Low-orbit Impact Cannon. Lots of issues solved at a stroke.
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Anonymous Coward, 6 Feb 2010 @ 10:06pm

Re: Re: Re: Re:
For one who is constantly prattling on about knowing what the law "is", when in many (some might say "most") instances your "is" "isn't", I am somewhat surprised that you fail to understand the most basic of priciples associated with what acts by the executive branch are treated as having the "force and effect of law" and what acts are not.

ACTA is in the "not" category, but then you already did not know that.
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Mike Masnick (profile), 6 Feb 2010 @ 10:48pm

Re: Re: Re: Re: Re:
Could you be just a bit more condescending next time?

Thanks.

In the meantime, is it still your position that ACTA will have no impact on US copyright law? Despite the fact that you don't know what's in it?

Thanks.
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RD, 7 Feb 2010 @ 7:18am

What?
"For one who is constantly prattling on about knowing what the law "is", when in many (some might say "most") instances your "is" "isn't", I am somewhat surprised that you fail to understand the most basic of priciples associated with what acts by the executive branch are treated as having the "force and effect of law" and what acts are not.

ACTA is in the "not" category, but then you already did not know that."

Wait, are you trying to say that a treaty like ACTA does NOT carry the force of law? Because, thats blatantly untrue.
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Anonymous Coward, 7 Feb 2010 @ 8:41am

Re: What?
ACTA is not a treaty and, thus, no matter what it may say it is not entitiled to the force and effect of law within the United States and those subject to its jurisdiction.

Federal "law" in its most general sense encompasses the US Constitution, federal statutues, treaties ratified by the Senate, executive agency rulemaking under the Administrative Procedure Act (Title 5), and precedential judicial decisions interpreting the foregoing.

ACTA fits into none of these categories. Thus, it is by its very nature incapable of creating new legal rights/obligations and of detracting from existing legal rights/obligations.

Being entitiled to no legal force and effect within the US, it is troublesome that certain individuals keep mistakenly characterizing it as something that will almost certainly alter the substantive law of the United States.

The various individuals associated with the USTR in the discussions are well aware of the forgoing. They are likewise well aware that they have no express or implied delegation of authority to negotiate provisions that would/could effect the legal rights/obligations of persons within the jurisdictional boundaries of United States law.

So, despite all of Mr. Masnick's assertions to the contrary, his assertions are simply wrong.
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Anonymous Coward, 7 Feb 2010 @ 9:42am

Re: Re: Re: Re: Re: Re:
See 42 below.

While transparency may well be appropriate in foreign countries having systems of law markedly different from the United States, and while transparency may well salve concerns of some within the United States who feel as if they are deliberately being kept in the dark with respect to details of the negotiations, I can well understand why the USTR, with the aid and support of the DOJ and other members of the executive branch, are inclined to limit disclosures to general statements of purpose.
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RD, 7 Feb 2010 @ 10:13am

Re: Re: What?
"ACTA is not a treaty and, thus, no matter what it may say it is not entitiled to the force and effect of law within the United States and those subject to its jurisdiction."

Oh wow. See, I knew there were people being paid by the govt to troll around and spread BLATANT FALSEHOODS about things like ACTA, but I never thought they would be so OBVIOUS about it.

First, you are lying. And if not, if you really believe that, then you are a fool.

ACTA is a treaty. Just put "ACTA treaty" into google and see the 356,000 pages that say so. Just a sampling:

Wiki: Anti-Counterfeiting Trade Agreement - Wikipedia, the free encyclopedia

PublicKnowlege: ACTA Treaty 'Anti-Consumer and Anti-Innovation' Groups Tell ...

Consumerist: Leaked ACTA Treaty Will Outlaw P2P - The Consumerist

Wired: Copyright Treaty Is Policy Laundering at Its Finest

Cnet: Ep. 1099: Secret ACTA treaty could break the Internet video - CNET TV

Eff: Rein In ACTA: Tell Congress to Open the Secret IP Pact (Most disturbing of all, an entire section of the treaty is devoted to "rights management technology/the Internet," ...)

Slashdot: Slashdot | Leaked ACTA Treaty to Outlaw P2P?

Are you going to sit there and with a straight face claim that ALL of these places are WRONG, but YOU are right? Really?
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Mike Masnick (profile), 7 Feb 2010 @ 10:17am

Re: Re: What?
ACTA is not a treaty and, thus, no matter what it may say it is not entitiled to the force and effect of law within the United States and those subject to its jurisdiction.

Anyone who is saying this is being purposely obtuse, ragingly untruthful, or willfully ignorant. Take your pick. That it is not a "treaty" is a techical trick. It is a treaty in pretty much every single way -- and nearly every politician I've seen talk about it refers to it as a treaty, because they know that, in all intents and purposes, it will serve as a treaty. As soon as it is agreed upon, you will hear the same people who said "this won't change US law!" start talking about how we have to live up to our "international obligations." We've done this before, you know.

ACTA fits into none of these categories. Thus, it is by its very nature incapable of creating new legal rights/obligations and of detracting from existing legal rights/obligations.

Yeah, keep saying that. Somehow I doubt you'll remember saying this when the law is changed. It won't be directly due to ACTA, but ACTA will force other countries to change their laws, and then the US lobbyists will talk about how we're so far behind other countries, and to match our international obligations, we'll have to ratchet up our laws.

Being entitiled to no legal force and effect within the US, it is troublesome that certain individuals keep mistakenly characterizing it as something that will almost certainly alter the substantive law of the United States.

No, the only thing troublesome are folks like you pretending that this is nothing. Could it be nothing? Possibly, but we really don't know, because NO ONE CAN SEE THE DOCUMENT.

So I'm curious how you can stand there and insist it won't change US law. If it won't change US law, then why are we even a part of it.

The various individuals associated with the USTR in the discussions are well aware of the forgoing. They are likewise well aware that they have no express or implied delegation of authority to negotiate provisions that would/could effect the legal rights/obligations of persons within the jurisdictional boundaries of United States law.

If that were true, then they wouldn't hide the negotiations, and they would open them up. The only reason not to do so is because they know damn well that they're pushing for things like increased secondary liability and the potential of requiring things like graduated response. Even the MPAA guy was willing to admit this. Why do you pretend that it's not happening?

So, despite all of Mr. Masnick's assertions to the contrary, his assertions are simply wrong.

No, I'm afraid not. I understand that you may not have much experience in these things, but ACTA is very much designed to change the law.
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Anonymous Coward, 7 Feb 2010 @ 10:56am

Re: Re: Re: What?
Are you going to sit there and with a straight face claim that ALL of these places are WRONG, but YOU are right?

To the extent various sources refer to ACTA as a "treaty", then yes, they are wrong by referring to it as such.

See: Articles II and VI of the US Constitution.

And, in answer to your question Really?, yes, I do sit here with a straight face. This is a matter of constitutional law, and not Google articles that discuss matters in generality and do not reach constitutional issues.
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Anonymous Coward, 7 Feb 2010 @ 11:01am

Re: Re: Re: What?
In response to your numerous comments please refer to 46 above.

Articles II and VI of the US Constitution are quite instructive, and ACTA is best understood by reference to these Articles.
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Mike Masnick (profile), 7 Feb 2010 @ 5:00pm

Re: Re: Re: Re: What?
Ha! So you are really going to play a semantic argument and pretend that because the USTR calls it one thing, it won't have an impact? I will note, again, that you did not actually respond to any of the points I raised. You just keep screaming that because we're not calling it a treaty, it won't be used as a treaty.

The only problem is that the very people who are pushing that point -- people I am guessing you don't want to be considered one of -- will very quickly start pointing to our "international obligations" require us to change copyright law to "harmonize" with other countries.

Everyone who is being intellectually honest has to admit that the purpose of ACTA is to act as a treaty. Calling it an "executive agreement" is playing a semantic game. There is plenty of stories out there that explain how an executive agreement is really a treaty that doesn't need Senate approval.

Let's be honest and call a treaty and treaty. If you continue to insist it's not a treaty, one can only conclude that you are intellectually dishonest.
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Anonymous Coward, 7 Feb 2010 @ 8:45pm

Re: Re: Re: Re: Re: What?
It would help considerably for you to recognize that there are always two sides to a story, and that so much of the criticism you level is based almost exclusively on information promulgated by groups having a definite anti-ACTA bias and a propensity to engage in "this is terrible-isms" without any basis in fact.

There are counterpoint positions that address much of what the above groups are saying, and yet it seems you pay them no heed in what I view as a rush to judgment.

Issues such as these are an opportunity to learn, and I would urge you to give a fair and unbaised hearing to the other side and the views they present.

Very rarely are situations as cut and dried as you appear inclined to believe. ACTA is one such instance.

I have studied quite closely both sides of the issue and believe that as yet those critical of ACTA present a far less compelling argument than those who present contrary arguments. It is important as a matter of law the distinction between a treaty as defined in our Constitution and an Executive Agreement. I believe it is important for persons to uderstand our system of laws and those entitled to the full force and effect of law versus other activities that are not. I believe it is important to realize that ACTA, no matter what is eventually presented to the public for comment, is non-binding and will not necessitate amendments to US law because this is not how our constitutional system of government is structured.

This is just food for thought, and I believe you would be well advised to at the very least extend to those who disagree with your opinions the courtesy of engaging them in an open and honest debate, and especially with those who have substantial experience in the negotiation of international agreements, be they treaties or executive agreements.
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Anonymous Coward, 7 Feb 2010 @ 9:20pm

Re: Re: Re: Re: Re: Re: What?
Wait, so ACTA won't actually change any laws? Then it's usless. What a giant waste of taxpayer money.
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Mike Masnick (profile), 7 Feb 2010 @ 9:44pm

Re: Re: Re: Re: Re: Re: What?
It would help considerably for you to recognize that there are always two sides to a story, and that so much of the criticism you level is based almost exclusively on information promulgated by groups having a definite anti-ACTA bias and a propensity to engage in "this is terrible-isms" without any basis in fact.

Easy way to fix that, right? Release the documents. But they don't... which is quite telling.

There are counterpoint positions that address much of what the above groups are saying, and yet it seems you pay them no heed in what I view as a rush to judgment.

Wait, are you HONESTLY suggesting that there have been credible responses that have explained the other viewpoint, that did NOT come from an industry spokesperson? I would love to see one, because to date, I have not.

Issues such as these are an opportunity to learn, and I would urge you to give a fair and unbaised hearing to the other side and the views they present.

The "other side" says "we're not showing this until it's too late." How can I give them a fair and unbiased hearing when they don't even show up? I'm more than willing to be convinced otherwise, but the reason we're making so much noise about this is because FROM WHAT WE HAVE SEEN, it's really, really bad.

Very rarely are situations as cut and dried as you appear inclined to believe. ACTA is one such instance.

I give up. You have finally convinced me that you are willfully ignorant. No one is saying it's cut and dried. What everyone is saying is that FROM WHAT WE'VE SEEN, it's BAD. So we're asking for EVIDENCE that it's not bad.

This should be easy, right? Instead, we get folks like you, an IP lawyer, and the USTR guy above, insisting "trust us, it's not that bad." And yet, you've give us no reason whatsoever to trust you -- and give your previous statements on this site, I have every reason to distrust you. You have shown in the past a long history of willfully misrepresenting copyright law in favor of certain interests.

I have studied quite closely both sides of the issue and believe that as yet those critical of ACTA present a far less compelling argument than those who present contrary arguments. It is important as a matter of law the distinction between a treaty as defined in our Constitution and an Executive Agreement.

Even the US state dept admits there's really no major difference other than whether or not the Senate approves it with 2/3 majority. You are full of it if you claim that a treaty and an executive agreement are really any different. Anyone who is intellectually honest admits they are the same thing -- it's just easier to get an Exec Agreement approved.

And I'm curious how have you studied "both sides" of the issue, when one side says it's a state secret. I've seen the list of folks who have been shown the document and did not see your name on the list. So, please, tell us. How do you know?

This is just food for thought, and I believe you would be well advised to at the very least extend to those who disagree with your opinions the courtesy of engaging them in an open and honest debate, and especially with those who have substantial experience in the negotiation of international agreements, be they treaties or executive agreements.

I am more than willing to let anyone with such experience come here and talk. I have, in fact, talked to many such people. I spent a week in DC last month talking to numerous folks about ACTA, and from one side I got stonewalling. Guess which side?

I really do need to go back again and ask you to explain how you know so much about this document, when us common folk are not allowed to see it, since it's a state secret? How do you know what has been leaked is wrong? How do you know that even what one of the MPAA's chief lobbyists said is wrong?

The answer is that you don't. And you don't even have the guts to sign your name and stand behind this opinion because you know how wrong you are. What a disappointment.
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Anonymous Coward, 8 Feb 2010 @ 5:11am

Re: Re: Re: Re: Re: Re: Re: What?
Wait, are you HONESTLY suggesting that there have been credible responses that have explained the other viewpoint, that did NOT come from an industry spokesperson? I would love to see one, because to date, I have not.

The following is an article from a "non-industry" individual providing a Canadian perspective and that addresses many of the points you raise:

http://www.barrysookman.com/2009/11/18/fear-mongering-and-misinformation-used-to-slag-acta /

I am well aware that there is nothing I can present that will give you pause for considering alternate points of view. This underlies why I have attempted to explain the salient differences between a "treaty" and an "executive agreement", the former being recognized under our constitutional system as having the force and effect of law (US Constitution, Article VI) and the latter as having no such force and effect. This is not a matter of semantics as you seem inclined to believe.

You repeatedly state that even if ACTA is not a treaty, one can be sure that whatever eventually results from the process will be used in a "bootstrap" (my word) manner to actively lobby Congress for substantive changes to US law. I guess the simple response is that Congress will always be lobbied for changes, even if ACTA never sees the light of day. After all, ACTA was not on the table when the DMCA was enacted, nor was it on the table when the CTEA was enacted, nor was it on the table when a bill was first presented in Congress that eventually led to the Pro-IP Act.

Experience informs me that members of US delegations involved in the negotiation of trade agreements are not fairly characterized as "shills" for any specific industry. It is to be expected that whatever they may initially present as proposals represents the current state of US law, simply because they lack the charter to engage in negotiating a "wish list" that do not comport with US law. Merely by way of example, while one or more foreign parties to the ACTA negotiations may raise the possibility of a "three strikes" law, if by some miracle it was adopted the US would have no choice by to recuse itself on the matter because of the obvious problems it would present under, inter alia, the "due process" clause of the US Constitution.

In sum, I see nothing in the "snippets" of information making the rounds on the internt that represents a departure from US law. Third party liablity directed to contributory infringement has long been a part of US juridprudence. Inducement was introduced by the Supreme Court in its unanimous Grokster decision, and even then it was decided in the context of a specific situation where the evidence produced at trial demonstrated that the defendant was involved to an extent well outside the safe harbor provisions of the DMCA. Grokster was not a passive "dumb pipe". Had this been the case Grokster could have fairly easily sought safe harbor and almost certainly succeded. To what I assume is Grokster's undying regret, it paid no heed to the DCMCA and learned a rather important lesson. Fail to pay heed to the provisions of US law and do not be surprised if you happen to be called on the carpet for doing so.
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Anonymous Coward, 8 Feb 2010 @ 7:30am

Re: Re: Re: Re: Re: Re: Re: Re: What?
"I am well aware that there is nothing I can present that will give you pause for considering alternate points of view. This underlies why I have attempted to explain the salient differences between a "treaty" and an "executive agreement", the former being recognized under our constitutional system as having the force and effect of law (US Constitution, Article VI) and the latter as having no such force and effect. This is not a matter of semantics as you seem inclined to believe."

Fine. Then, when this passes and ALL the things Mike has been saying come to pass, and this has the effect of the force of law, and has to in order to be "harmonious" with our "international obligations" and all that, you WILL come in here and put up a retraction, right? You WILL eat crow and ADMIT that YOU were wrong, and MIKE was right, correct?
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Anonymous Coward, 8 Feb 2010 @ 1:24pm

Re: Re: Re: Re: Re: Re: Re: Re: What?
I find it rather telling that here in Canada when ACTA was brought up, our Minister of Industry told the people if they wished to find out more about ACTA to visit Michael Geist's website for more information.

Michael Geist being a vocal opponent to ACTA.

Did Canada's Minister of Industry suggest to go to Barry Sookman's website?

Nope.

Hilarious.
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Anonymous Coward, 8 Feb 2010 @ 4:15pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: What?
And did your Minister then go on to agree with those who claim that Canadian laws would be subservient to ACTA, or that ACTA would mandate amendment to substantive Canadian law.

Of course not. He stated just the opposite.

But, hey, let's not allow insignificant details get in the way.
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Anony1, 9 Feb 2010 @ 9:42am

The anti-mike looks like a monkey (he's a human, we all look kind of like one) and he smells like one too (just my opinion). I haven't seen him, or met him, but just like ACTA, I know.
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