ACTA Negotiators Don't Seem To Know Or Care About What They're Negotiating

from the that-is-downright-scary dept

Wed, Aug 18th 2010 2:34pm — Mike Masnick

With the latest round of ACTA negotiations going on this week in Washington DC, following pressure from various public interest groups, a hasty lunch was organized that was apparently quite informal. Attendees from the event have been posting their notes, and there are a few interesting tidbits. James Love notes that US negotiators don't seem to realize or care that ACTA goes against US law, as they note that the US will just ignore the parts that don't mesh with current law. Other countries are probably out of luck though:

The U.S. negotiators at the ACTA meeting have, over the past year or so, been remarkably indifferent to the fact that the US positon in the negotiation runs counter to about a dozen U.S. statutes where remedicies are now limited by statute, contrary to the plain language of the ACTA text advanced by the U.S. government.

At the lunch meeting the U.S. negotiators explained the reason for this -- they said it was obvious that regardless of what the ACTA provisions say, the U.S. can ignore the provisions in cases where there are statutory exceptions. "It is not necessary to say that in the ACTA text" I was told. "It's obvious."

At the lunch there was discussion among the Australian, Japan, US and Singapore negotiators over this issue. Some delegates pointed out that the U.S. had spent a lot of time talking about the fact that this was an executive agreement, and therefore "could not" change U.S. law. Therefore, they argued, it was understood that ACTA would grandfather in any inconsistency between U.S. law and ACTA. People were not so sure how this worked for other countries in the negotiations -- including those where the ACTA provisions would clearly require changes in national laws, if taken seriously. Some delegates indicated that it was hard to understand what ACTA meant, at this point, given the many brackets in the text, and a lack of understanding about how the "general" and "high level" provisions of the ACTA would apply to a country's actual laws. Other delegates said the issue of exceptions to ACTA obligations, while important, had not really been addressed in the negotiations.

Yes, it appears we're negotiating an agreement where the US isn't too concerned with the fact that it goes against key points in US law because we'll just ignore the parts we don't like. But, you can bet that we'll put massive pressure on any other country that tries to do the same. And, when there's any discussion of improving US law, we'll be told we can't, because of our "international obligations" under ACTA.

As for that last point about how "it's hard to understand what ACTA meant" at this point, Michael Palmedo from American University sent over his notes from the meeting, which I've published below with permission. The key scary point in his notes was that the top European negotiator, Luc Devigne, doesn't seem to realize or care that this is supposed to be an "anti-counterfeiting" agreement, but insists it's an "intellectual property agreement." Perhaps they should rename it, then. Here was the key part:

Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He thinks that medicines have been addressed and therefore medicines are not an issue. He asked more than once how you could have an 'IP Enforcement' treaty and not include patents - and dismissed suggestions that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than a broader enforcement treaty.

When you compare both of these points from Palmedo and Love, what you come up with are negotiators who are negotiating an agreement without much concern for what the agreement is supposed to be about or what it will actually do. That's downright scary.

Anyway, we've included Palmedo's full notes after the jump, so click on through if you want to read the differing views on patents, safeguards and key issues like access to medicine.

Michael Palmedo's notes on ACTA lunch:

Today's lunch with ACTA negotiators was informal, and it was set up in a way that surprised all who attended. There were no presentations, Q&A, or structured conversations. Instead, the room was set up with a bunch of small tables that seated 5 or 6 people each, and everyone walked around and mingled. Almost none of the negotiators who I talked to had business cards. There wasn't really an opportunity to take notes or record anyone.

Jamie Love (KEI), Malini Aisoloa (KEI), Alberto Cerda(KEI), Peter Maybarduk (Public Citizen), Sherwin Siy (Public Knowledge), Rohit Malpani (Oxfam), Meredith Jacob (American Univeristy, PIJIP) and I were the civil society attendees. There were approximately 30 ACTA negotiators from various countries. All negotiators seemed to share the sense that progress was being made, yet it was coming along very slowly.

Four Korean negotiators were at a table together, and Hyeyoon Choi, Assistant Director, Copyright Division, DG of Copyright Policy spoke with us more than the others. In general, they said that the conversations so far had centered around copyright issues. Conversations about the scope of what would be included in ACTA had not yet taken place. They understand some people are concerned about access to medicines, but the way they see it, patents are out of the border section so there's no more issue there. They didn't seem to agree that trademark issues or third party liability could threaten access to medicines. When asked what Korean civil society was pushing for, the answer was quite different than what we expected. There has been some pressure in Korea for the inclusion of 'morality on the internet' provisions following a string a scandals in Korea involving celebrity suicides linked to gossipy internet slander.

George Mina from the Australian negotiation, and Benoit Lory and Luc Devigne from the EU, were at a table together. They said that the scope of IP in ACTA had come up in conversations, although in a somewhat indirect manner. They all said that a decision will be made about whether or not to release the text publicly at the end of the week, but said that (personally, not officially) they didn't see why the text shouldn't be released if it's just going to be leaked anyway.

Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He thinks that medicines have been addressed and therefore medicines are not an issue. He asked more than once how you could have an 'IP Enforcement' treaty and not include patents - and dismissed suggestions that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than a broader enforcement treaty. George Mina said the Australian government's position was that patents should out of the agreement entirely.

Mina amenable to the idea that more safeguards ought to be inserted into the text. Devigne was not opposed to this either, but the Mina was seemed more open to it.

Kira Alvarez (lead USTR negotiator) said she will come and speak at an open, publicized, webcast event at American Unviersity Washington College of Law. She will need to figure out the specifics of her schedule, but she will do the event.

Stan McCoy (USTR) said that the main aim of the meeting is to slowly go through the text, and trying to iron out as many brackets as possible. They want to figure out what are the differences that negotiators feel strongly about, and which might be more easily resolved. They want to have something less bracketed that negotiators can take back to their home countries before the next round.

All of the negotiators I talked to said that there was no date set for the next round in Japan. They said that this issue would be discussed on Friday. Someone told another that the next round will be the week of September 27.

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Filed Under: acta, copyright, intellectual property, negotiators

23 Comments

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Steve R., 18 Aug 2010 @ 3:15pm

See What Happens!
"... the US isn't too concerned with the fact that it goes against key points in US law because we'll just ignore the parts we don't like." Once ACTA is passed, what will happen is that US law will be revised to come into compliance with international agreements.

After all we can't have laws that are "outdated" with international standards and "fail" to protect so-called intellectual property. I assume that the content industry already has the draft revision prepared for Congress's approval with appropriate contributions.
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Anonymous Coward, 18 Aug 2010 @ 3:30pm

Mr. Love is in many respects attempting to pick fleas off the back of an elephant, and only a very few at that.

OMG, the individual states are not covered in the event they infringe (how he forgot to mention indian tribes eludes me) private rights. The fact of the matter is these are issues of constitutional doctrine, and no executive agreement (which is not even entitled to the force and effect of law) can ever require that the US Constitution must be amended. Nor, for that matter, can an executive agreement ever require that US statutory law must be amended. This is likewise a basic constitutional limitation on the power of the executive branch.

Mr. Love seems to be quite adept at generating "OMG" scenarios, but it would help the discussion immesurably to put his remarks in the context of basic constitutional doctrines. Of course, this would likely mean paring down his list to a point that would fit quite comfortably on the head of a pin.

If there are issues, then he should focus on those he believes are of paramount importance and quit wasting buckshot on trivial matters.
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- crade (profile), 18 Aug 2010 @ 4:03pm
  
  Re:
  I don't see what is so trivial.
  If the U.S. doesn't even plan on abiding by the agreement it may be important to some of the other country's decisions.
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- robin, 18 Aug 2010 @ 4:09pm
  
  Re:
  If there are issues, then he should focus on those he believes are of paramount importance...
  
  uhmm.....does this work: http://keionline.org/acta
  
  Mr. Love seems to be quite adept at generating "OMG" scenarios...
  
  ad hominem for the fail.
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- Mike Masnick (profile), 18 Aug 2010 @ 4:12pm
  
  Re:
  The fact of the matter is these are issues of constitutional doctrine, and no executive agreement (which is not even entitled to the force and effect of law) can ever require that the US Constitution must be amended.
  
  You keep saying this and we keep pointing out by what an amazingly wide margin it misses the mark.
  
  Why are we negotiating this "executive agreement" (which you simply refuse to admit -- as many legal experts have noted -- is really no different than a treaty, other than that Congress doesn't need to ratify it) if the US can ignore the parts that don't agree with US law?
  
  And, more importantly, will you be willing stand up and complain when your buddies start screaming "international obligations" in trying to change US law towards what ACTA says?
  
  Mr. Love seems to be quite adept at generating "OMG" scenarios
  
  I'd say that the scenarios he presents are carefully considered, well detailed, and not at all prone to "OMG-ness." Anyone is free to read his analysis, which seems to be quite straightforward and well supported.
  
  You, on the other hand, seem to stop by here every day to wave away any concerns people have, and when called on the factually incorrect points you make, you start mocking people.
  
  I'd trust Mr. Love any day over the likes of you.
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  - Anonymous Coward, 18 Aug 2010 @ 5:39pm
    
    Re: Re:
    "...as many legal experts have noted..."
    
    And these so-called legal experts who you suggest dismiss the differences between a treaty and an executive agreement are...? Sorry, but the US Constitution is a bit more demanding than you keep trying to suggest.
    
    As for Mr. Love's scenarios, I note that many of them (not all mind you...just many) are associated with 28 USC 1498 (seems he overlooked 22 USC 2356) and state sovereign immunity as exemplified, in part, by Florida Prepaid (dealing with patents). These are issues of constitutional dimensions, and to even suggest that entering into ACTA would place us in some form of jeopardy because of conflicting constitutional imperatives is ludicrous.
    
    "...your buddies..."
    
    They are not my buddies. Lobbyists and others will keep trying to push the boundaries of law whether or not ACTA is ever signed. What else is new?
    
    Feel free to place your trust in Mr. Love, but bear in mind it is the "likes of me" who generally try to articulate what the law is, and not what we would like it to be. I have my own views on policy matters, but they are irrelevant to any discussion concerning substantive law.
    
    I unabashedly continue suggesting that KEI save its precious buckshot for real game and resist the urge to use it to shoot "nits".
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    - Anonymous Coward, 18 Aug 2010 @ 5:50pm
      
      Re: Re: Re:
      BTW, I am not attempting to work some unstated objective. I could care less if ACTA is signed. I do not have a dog in that fight.
      
      What I do care about is that when one talks about what the law "is", the talk is generally accurate. "Talks" about the US Constitution or current statutory/common law that are far off the mark are not what I deem to be "generally accurate".
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    - Anonymous Coward, 18 Aug 2010 @ 6:22pm
      
      Re: Re: Re:
      There are differences but I think the point is that, for the purpose of these discussions, the differences are irrelevant because the outcome is essentially the same. The differences are mostly procedural in nature mostly concerning with how they get established, by whom, whether they can be secretive or not, and other minor issues. No one is saying they're identical, just that the differences are almost meaningless in the context of the outcome.
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      - Anonymous Coward, 18 Aug 2010 @ 6:33pm
        
        Re: Re: Re: Re:
        IOW, yes, they maybe legally different, but other than legal technicalities they're practically the same.
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    - Hephaestus (profile), 19 Aug 2010 @ 6:40am
      
      Re: Re: Re:
      "I unabashedly continue suggesting that KEI save its precious buckshot for real game and resist the urge to use it to shoot "nits"."
      
      Agreed. Getting the word out is commendable, but they should be finding flaws in ACTA and where it contradicts the law and using them to undermine it. Its not only the smart way to go about it, its also simpler.
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- Anonymous Coward, 18 Aug 2010 @ 4:23pm
  
  Re:
  Are you bitching about someone bitching?
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william (profile), 18 Aug 2010 @ 4:13pm

so the Koreans want us to follow their "morality" standards now?

So basically, the Koreans are going to determine if and when and what concerning the pron on the Internet (or any other objectionable content).

Can you imagine your neighbor barge into your house in the middle of the night telling you and your wife to "stop it" because you have violated his morality?

Great, this is just great.

On the other hand, since US have forced their bad copyright laws on the Koreans, I guess they feel they are entitled to force their morality on the US citizens too.
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Yankee Infidel, 18 Aug 2010 @ 5:05pm

par for the course
This is no different in how the Democratic-controlled Congress passed "health care reform". Load it up with a bunch of bureaucratic bullshit to benefit certain special interests, lie to the American people what it will truly cost to implement it, and then mock people for questioning those same congressmen why they are not intimately familiar with the details when called on their bullshit.

If you cannot understand the bill that you are passing into law, then maybe you should not be voting for that bill. It's just common sense, but the US Congress has none.

Likewise, even more political pressure needs to be placed on these unelected trade negotiators to not go through with this sham of a trade agreement.
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Anonymous Coward, 18 Aug 2010 @ 5:22pm

"Luc Devigne (Head EU Negotiator) is gung ho that patents will be in."

Well, before patents destroy this idea, you know how the IPAD automatically flips the screen over when you flip the IPAD over. Here is an obvious non - patentable idea. Why not have digital cameras automatically do the same thing. When you flip the camera sideways to take a picture in order to capture more of something, have the camera automatically flip the stored picture over so that I don't have to do it while later scrolling through the pictures. That way no matter how I take the picture it is always stored right side up.
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- Killer_Tofu (profile), 19 Aug 2010 @ 7:06am
  
  Re:
  Some cameras already do this. My girlfriend's camera for instance does this. I don't even think its overly new. Couple years old now I think.
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- Niall (profile), 19 Aug 2010 @ 2:09pm
  
  Re:
  My three-year old Canon already does this. I'd imagine you shouldn't be able to patent/copywrong the idea, merely the execution.
  
  Really, under some of the ideas you see in ACTA, from IP maximalists, and from what the USPTO(?) lets through, Edison would have 'patented' the 'glass' lightbulb and now we'd not only have not have low-energy bulbs, but a typical incandescent bulb (from the Edison-owned company) would cost $15.99 and last 100 hours only.
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Karl (profile), 18 Aug 2010 @ 10:41pm

FSF Petition
On a related note, the FSF is delivering its petition against ACTA later today (Thursday), so sign now if you agree with it:
http://www.fsf.org/campaigns/acta/acta-declaration
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- Karl (profile), 18 Aug 2010 @ 10:41pm
  
  Re: FSF Petition
  Um, "it" being the petition, not ACTA.
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- Anonymous Coward, 19 Aug 2010 @ 7:06am
  
  Re: FSF Petition
  Remember a long time ago there was some Obama site with the top ten things that Obama will focus on and everyone basically voted on them (and anyone can submit something to be focused on). I remember number one was something like legalizing marijuana. What ever happened to that? I believe alleviating IP was also in the top ten or something, something that everyone on techdirt voted for.
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  - Anonymous Coward, 19 Aug 2010 @ 7:53am
    
    Re: Re: FSF Petition
    I also remember it had something to do with change.org
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    - Anonymous Coward, 19 Aug 2010 @ 8:05am
      
      Re: Re: Re: FSF Petition
      http://www.salem-news.com/articles/january172009/obsma_dreams_1-17-09.php
      
      http://www.change.org/i deas
      
      but it wasn't the 2010 one, it was the 2009 one, that site only lists the 2010 one. Obama said he'll take the top ten most voted upon ones seriously. I remember number 1 was legalize marijuana. What were the rest and where do I find them?
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      - Killer_Tofu (profile), 19 Aug 2010 @ 12:35pm
        
        Re: Re: Re: Re: FSF Petition
        Hopefully you are still around but this site does a pretty good job taking Obama to task for the stuff he promises. It may be in here.
        http://www.politifact.com/truth-o-meter/promises/
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        Anonymous Coward, 19 Aug 2010 @ 5:38pm
        
        Re: Re: Re: Re: Re: FSF Petition
        Thanks.
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