Even US Intellectual Property Organization Concerned About ACTA Being Too Broad & Changing US Laws

from the that's-not-how-it's-supposed-to-work dept

Tue, Jul 13th 2010 7:49am — Mike Masnick

While those involved in the ACTA negotiations have mocked the concerns raised about the ACTA draft, and said that those who are complaining are merely repeating "wild internet rumors." Of course, we've seen that's not the case at all. A recent filing about ACTA, put together by a bunch of industry groups, highlighted many of the very real problems with ACTA. Of course, ACTA defenders still dismissed this, because they claimed that the report came from those industries who benefited from weakened IP laws.

I wonder how they'll try to belittle this one. The Intellectual Property Owners Association (IPO) recently sent its own letter to the US government complaining about the scope and specifics of ACTA (pdf). The Intellectual Property Owners Association is not exactly the sort of organization you can accuse of wanting weaker intellectual property. It's also not an organization that I agree with very often (as you might imagine). But, in this letter, the group points out that ACTA appears to be way too broad and that, contrary to claims from ACTA negotiators, it seems clear that it would require changes to US law.

The letter first points out that ACTA should focus on the real problem of counterfeiting, but that the language (without any good reason) is made much broader with a focus on all "intellectual property":

As currently drafted, given the expansive use of the broadly-defined term "intellectual property," ACTA goes far beyond addressing the subject matter of counterfeiting. This broad definition encompasses issues that are most appropriately handled as civil infringement causes of action in most jurisdictions around the world, and especially so in the case of the United States.

Separately, the letter goes on to highlight multiple cases where ACTA would, in fact, change US law:

We believe ACTA potentially changes United States law by transforming what are the commonly occurring non-counterfeit-types of civil action infringements into activity that is to be punished under federal criminal law.

Among the examples of how it changes US law as currently written is the following:

ACTA is unwittingly broadening the scope of the seizure power of Customs and Border Patrol forces to encompass civil action trademark infringement and raising the specter of potential abuse in many countries around the globe. The determination of whether marks are similar and whether there is a likelihood of confusion should not be conducted hastily and in an ex parte manner by a border official, but should instead be based upon the appropriate legal analysis (possibly resulting from extensive pre-trial preparation and discovery where allowed).

Elsewhere, it notes that other language choices in the document clearly turn civil infringement into criminal infringement, and that it potentially makes keyword buying on trademarked terms on search engines infringing (even as US courts have mostly found that it is not infringing). As a final recommendation, the IPO suggests that ACTA actually be about what it's supposed to be about, which is counterfeiting:

Thus, IPO urges USTR to review ACTA to ensure that the scope of the Act is appropriately limited to its stated purpose of addressing the limited, though important, subset of infringement known as "counterfeiting."

So here we have a major pro-intellectual property trade group complaining about the scope and nature of ACTA -- and specifically highlighting that it will change US law, despite insistence by negotiators that it would not. Are we now going to be told that the Intellectual Property Owners Association is a "front" for the anti-IP interests, as we were told about the groups who signed onto that last anti-ACTA document?

In the meantime, on the question of whether or not it will change laws, it's worth noting that both the US and the EU keep insisting that ACTA won't change any laws (which makes some people question why it's being done at all). Glyn Moody points us to a recent note from the EU negotiators insisting that ACTA won't change EU law either (despite pretty clear evidence that it would). Yet, other negotiators have admitted that some countries might need to change their laws, but won't say who. It must be Morocco...

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Filed Under: acta, copyright, counterfeiting
Companies: intellectual property owners association

39 Comments

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Joel (profile), 13 Jul 2010 @ 8:03am

Woohoo!
Finally we are getting some help from someone! Hopefully this entices others to stand up against ACTA or at least make it a little more fair to the people.
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pink floyd, 13 Jul 2010 @ 8:05am

Tear down the IP WALL
Tear down the IP WALL
Tear down the IP WALL
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- Serj Tankian, 13 Jul 2010 @ 8:11am
  
  Re: Tear down the IP WALL
  I want you to be left behind those empty walls
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Anonymous Coward, 13 Jul 2010 @ 8:06am

"Of course, ACTA defenders still dismissed this, because they claimed that the report came from those industries who benefited from weakened IP laws. "

and those who lobbied for 95+ year copy protection lengths aren't industries who benefit from these laws?
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Anonymous Coward, 13 Jul 2010 @ 8:12am

"other negotiators have admitted that some countries might need to change their laws, but won't say who. It must be Morocco... " - no, probably spain.
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Hephaestus (profile), 13 Jul 2010 @ 8:43am

You have about half of the GDP of the US on the cover page of that document.

Eli Lilly and Co.
Exxon Mobil Corp.
Ford Global Technologies LLC
Dow Corning Corp.
Microsoft Corp.
Dow Chemical Co
General Electric Co.
Johnson & Johnson
Hoffmann-La Roche Inc.
GlaxoSmithKline
Shell International B.V.
BP America, Inc.
Abbott Laboratories
DuPont
Pfizer, Inc.
Coca-Cola Co.
3M Innovative Properties Co.
United Technologies, Corp.
Procter & Gamble Co.
etc. etc.

The People supporting ACTA are now beginning to come up against the rest of the worlds corporations and the population of the world. With the president we have here in the US becoming more and more the socialist leaning villian, and corporate stooge in the public eye. The support for ACTA on the government side should slowly dry up.
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- Anonymous Coward, 13 Jul 2010 @ 11:49am
  
  Re:
  Major non-sequitur here . . . the President can't be a "socialist leaning villian" and a "corporate stooge" these two position are at opposite ends of the scale. No way a socialist would be a corporate stooge. I looks like your teabags are showing . . .
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  - Jay (profile), 13 Jul 2010 @ 12:10pm
    
    Re: Re:
    Maybe he's using a different Political Compass?
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    - The Groove Tiger (profile), 13 Jul 2010 @ 6:36pm
      
      Re: Re: Re:
      Or maybe this one?
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  - Anonymous Coward, 13 Jul 2010 @ 4:02pm
    
    Re: Re:
    and why not? Corporate socialism is still socialism.
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  - BastiatsGhost, 27 Jul 2010 @ 10:23am
    
    Re: Re:
    "Major non-sequitur here . . . the President can't be a "socialist leaning villian" and a "corporate stooge" these two position are at opposite ends of the scale. No way a socialist would be a corporate stooge. I looks like your teabags are showing . . ."
    
    What do you think corporate welfare in the form of bailouts is? We have a socialist welfare state for the benefit of big business instead of the common people.
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Hephaestus (profile), 13 Jul 2010 @ 8:46am

Another thing
Why are so many Pharma houses signing onto this letter? I thought they were one of the prime motivators of ACTA.

Weird that...
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- Dementia (profile), 13 Jul 2010 @ 9:02am
  
  Re: Another thing
  My guess would be that this is an organization of which the pharma companies are members, but not one that has actively pursued the question of which of its members want ACTA imposed as it is currently written.
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- Richard (profile), 13 Jul 2010 @ 9:04am
  
  Re: Another thing
  Why are so many Pharma houses signing onto this letter? I thought they were one of the prime motivators of ACTA.
  
  I think they were originally - but now they see that the likes of Disney are hijacking it and they are worried that the whole thing will collapse as a result.
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  - Hephaestus (profile), 13 Jul 2010 @ 9:52am
    
    Re: Re: Another thing
    "worried that the whole thing will collapse as a result."
    
    Its funny, but everything the Labels and Studios touch seems to turn to crap recently. The content providers are making all the wrong decisions business and PR wise.
    
    I have only been concentrating on the numbers and statistics of disrupted business models, not the business decisions made, or the psychology during past disruptions. I wonder if the same thing happened to the oil lamp, buggy and whip, and other past industries disrupted by technology. Where an entire industry went bat sh!t crazy, and fell into a cyclical version of the 5 stages of grieving for years on end.
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Anonymous Coward, 13 Jul 2010 @ 9:34am

Three points worth noting.

1. Contrary to what many here perceive that IP supporters tend to be in lockstep that more is better, this is not, and never has been, the case. A wide diversity of views exist.

2. The point raised that the IPO perceives ACTA as being about curtailing counterfeiting is a fair one, and, hence, its focus on trademark-related issues. To the extent it may suggest that all trademark infringement matters within the US are civil matters, it is not altogether accurate. See, for example, 18 U.S.C. § 2320.

3. It is a point raised here continuously, and regularly shouted down, ACTA does not and cannot change US law. The Executive Branch does not have the power or authority via either a treaty or an executive agreement to change US law sua sponte. Only Congress has that power under the Constitution, and proclamations to the contrary are simply wrong. Importantly, Congress defends this power with vigor.
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- The Mighty Buzzard (profile), 13 Jul 2010 @ 9:51am
  
  Re:
  You're forgetting that Congress has to approve any treaties. Once Congress does that, it can most definitely change US law.
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  - Anonymous Coward, 13 Jul 2010 @ 10:40am
    
    Re: Re:
    True, but there is nothing that requires Congress to accept a treaty as presented to it, or to even ratify it in a time manner. Witness the Berne Convention. The US did sign the initial treaty, but did not ratify it for about 90 years.
    
    Like I said, Congress acts when Congress wants to act...and not one minute sooner.
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    - Any Mouse, 13 Jul 2010 @ 10:58am
      
      Re: Re: Re:
      Except that this isn't a treaty. Congress doesn't get to touch it, and there's no need for their signatures.
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      - Anonymous Coward, 13 Jul 2010 @ 11:08am
        
        Re: Re: Re: Re:
        ...and because it isn't a treaty duly ratified by the Senate it has no legal force and effect in the US.
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        nasch (profile), 13 Jul 2010 @ 11:31am
        
        Re: Re: Re: Re: Re:
        Can you provide a reference for that? Because it seems like just a technicality.
        
        http://www.techdirt.com/articles/20100209/1505538101.shtml
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        Anonymous Coward, 13 Jul 2010 @ 12:05pm
        
        Re: Re: Re: Re: Re: Re:
        Article II, Section 2 of the US Constitution requiring the advice and consent of the Senate.
        
        Contrary to what some may have you believe, this is not a mere technicality or semantics. A trade agreement and a treaty are two separate and distinct instruments, with only the latter, after having been duly ratified, being entitled to the full force of US law.
        
        As I noted earlier, will certain groups because of ACTA try and cajole Congress into creating new law? Of course, this is the nature of the political process. However, it is worthwhile to consider that these same groups would be cajoling anyway even if ACTA did not exist.
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        nasch (profile), 13 Jul 2010 @ 2:24pm
        
        Re: Re: Re: Re: Re: Re: Re:
        You're ignoring the fact that those groups will have far more leverage after the passage of ACTA.
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        The Mighty Buzzard (profile), 13 Jul 2010 @ 11:34am
        
        Re: Re: Re: Re: Re:
        You forgot the key word 'yet'.
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- nasch (profile), 13 Jul 2010 @ 9:52am
  
  Re:
  3. It is a point raised here continuously, and regularly shouted down, ACTA does not and cannot change US law.
  
  Besides the fact that the US is not the only country that matters, I'm not sure you're right, despite your use of Latin.
  
  http://www.mp3newswire.net/stories/0102/acta-guide-4.htm
  http://www.eff.org/deeplinks/200 9/11/stopping-acta-juggernaut
  http://www.keionline.org/blogs/2009/07/31/acta-injunctions
  
  'When pressed whether the U.S. would be open to any negotiated difference from U.S. law in the ACTA, the official said that the goal of the U.S. "is to stick as closely to U.S. law as possible." '
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  - Anonymous Coward, 13 Jul 2010 @ 10:43am
    
    Re: Re:
    KEI, EFF and many others have expressed concerns about ACTA, but qualify their concerns with weasel word such as "could", "may", "might", etc. It is not that I believe their concerns lack any legitimacy, but only that they overplay their hand trying to make their points.
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  - btrussell (profile), 13 Jul 2010 @ 7:07pm
    
    Re: Re:
    "'When pressed whether the U.S. would be open to any negotiated difference from U.S. law in the ACTA, the official said that the goal of the U.S. "is to stick as closely to U.S. law as possible." '"
    
    So the rest of the world can enjoy the same amount of debt as US laws have created?
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    - nasch (profile), 13 Jul 2010 @ 8:18pm
      
      Re: Re: Re:
      I'm no fan of IP law, but I think that's the first time I've seen it blamed for our national debt.
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      - btrussell (profile), 14 Jul 2010 @ 5:54am
        
        Re: Re: Re: Re:
        I said laws, not IP laws.
        By the way, what do IP laws have to do with counterfeits?
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        nasch (profile), 14 Jul 2010 @ 10:13am
        
        Re: Re: Re: Re: Re:
        I said laws, not IP laws.
        
        But those are the only laws ACTA deals with.
        
        By the way, what do IP laws have to do with counterfeits?
        
        Some (trademark) are totally relevant. Most have nothing to do with counterfeits at all.
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- Mike Masnick (profile), 13 Jul 2010 @ 10:24am
  
  Re:
  It is a point raised here continuously, and regularly shouted down, ACTA does not and cannot change US law. The Executive Branch does not have the power or authority via either a treaty or an executive agreement to change US law sua sponte. Only Congress has that power under the Constitution, and proclamations to the contrary are simply wrong. Importantly, Congress defends this power with vigor.
  
  Not shouted down. It's just been pointed out, repeatedly, how this is a misleading talking point from ACTA supporters. That you continue to repeat it is pretty sad, as we've already shown -- repeatedly -- how it's simply not true. While this agreement routes around Congress by not being a "treaty" you know damn well that your buddies, who you regularly cite in your comments, will be on the front lines screaming "international obligations!!!" should the US do anything outside of these rules.
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  - coldbrew, 13 Jul 2010 @ 10:51am
    
    Re: Re:
    Masnick: To be fair, I believe this is one of the more constructive comments by an opposing point of view using the 'Anon Coward' moniker. From your comment, it seems you are working with better info than the rest of us (i.e. IP address). I believe you are setting a precedent for the commenters here to always assume an opposing viewpoint is "TAM" (yes, i see the style similarities). Please bring more transparency to the discussion:
    
    In the interest of preserving the ability to comment anonymously, while also allowing for some accountability, I propose TD prints either the first half or second half (some distinguishable portion) of the ip address of us non-registered commenters.
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    - Natanael L (profile), 13 Jul 2010 @ 3:06pm
      
      Re: Re: Re:
      "Identicons"? Hashed IP addressess turned into icons.
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      - vivaelamor (profile), 14 Jul 2010 @ 12:59am
        
        Re: Re: Re: Re:
        '"Identicons"? Hashed IP addressess turned into icons.'
        
        I second this motion: https://secure.wikimedia.org/wikipedia/en/wiki/Identicon
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  - Anonymous Coward, 13 Jul 2010 @ 10:56am
    
    Re: Re:
    You have not shown me anything other than a series of articles by US organizations prognosticating that ACTA will require changes to US law.
    
    Undoubtedly, if ACTA is passed there will be various groups who will clamor for new additions to US law, but then again these same groups have been doing so for years and will continue to do so whether or not ACTA passes. Such is politics.
    
    BTW, persons whose names I may happen to mention are not my "buddies", so calling them as such is plainly wrong. When I happen to mention a name, even one that may make you want to pull your hair out, I do so only because in my opinion they express views that deserve to be added to the mix when IP issues are discussed. Some present their views less "forcefully" than others, but I try to never let this get in the way of reading and trying to understand the "message" they are conveying.
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    - Anonymous Coward, 13 Jul 2010 @ 4:09pm
      
      Re: Re: Re:
      "You have not shown me anything other than a series of articles by US organizations prognosticating that ACTA will require changes to US law."
      
      If a court rules in favor of ACTA laws whereby it wouldn't have done so otherwise then ACTA has effectively changed U.S. law.
      
      and in the past courts have upheld international agreements.
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      - Anonymous Coward, 13 Jul 2010 @ 4:11pm
        
        Re: Re: Re: Re:
        In other words, to the extent that ACTA or an international agreement changes the outcome of a court case (which has happened with agreements before) then ACTA has effectively changed U.S. law. Why is this so difficult to understand?
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- Anonymous Coward, 13 Jul 2010 @ 10:44am
  
  Re:
  3. It is a point raised here continuously, and regularly shouted down, ACTA does not and cannot change US law. The Executive Branch does not have the power or authority via either a treaty or an executive agreement to change US law sua sponte. Only Congress has that power under the Constitution, and proclamations to the contrary are simply wrong. Importantly, Congress defends this power with vigor.
  
  Technically it cannot, in reality it will. Any "obligations" in it that are not reflected in US law will be lobbying points that will be pressed. "The US is not in accord with X international agreement!" That will continue until the law is changed.
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nasch (profile), 13 Jul 2010 @ 9:43am

Unwittingly?
ACTA is unwittingly broadening the scope of the seizure power of Customs and Border Patrol forces to encompass civil action trademark infringement and raising the specter of potential abuse in many countries around the globe.

I'm skeptical of the "unwittingly" part.
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