US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like... So How About Everyone Else?
from the ignore-away dept
It's been amusing to watch supporters of ACTA who repeatedly claim that it's not going to matter if ACTA actually disagrees with US law, because, as an executive agreement (rather than a treaty) it "can't" change US law. Of course, they ignore the history of such things, where suddenly lobbyists start talking up our "international obligations." But, it appears some in the US are now claiming that Article 1.2 provides something of a giant loophole, where it states:"Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice."We've even had people in our comments highlight that section, as a clear indication that each country need not change its laws. And some of the US negotiators are specifically using that clause to say that it can sign the current agreement and then point to that clause to ignore whatever they don't like in ACTA. Of course, this response has some scratching their heads. If the US can point to that clause an opt out of any clause that they don't like why can't other countries do the same? And, if it's true that any country can use that clause to effectively opt-out of anything they don't like in ACTA, what's the point of ACTA in the first place?
Of course, the reality, again, is that it's because down the road, when everyone's forgotten the promises that ACTA won't change anyone's laws, the lobbyists will step in and do the whole "international obligations" bit. What's amusing to me is that the very same commenters on our site who insist that ACTA cannot change US law, and who have pointed to Article 1.2 as proof, were also the very same folks in our comments a few months ago pointing to the demands that Canada change its copyright laws by claiming "international obligations" concerning WIPO/TRIPS -- even though WIPO/TRIPS, similarly, is supposed to let each country set up its laws "within its own legal system and practice."
It's basically all a shell game: say whatever you can to get the damned thing signed, knowing that after it's signed, it'll be much easier to apply lobbying pressure down the road.
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What do you expect from lobbyists. If these people had half a brain they would do something more productive but they're too stupid to do something more productive, no one would hire them. So the only way for them to make as much as they do is to compromise ethics and become corporate lobbyists.
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lobby = bribe
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Welcome to Code City!
http://www.youtube.com/watch?v=fht7mujzeC8
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I can understand why the USTR has reservations for including patents within ACTA, but KEI's opinions concerning this issue are, to the extent it keeps relying on 28 USC 1498, are plainly wrong.
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Re:
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Re: 28 USC 1498
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Re: Re: 28 USC 1498
State governments have successfully argued against federal preemption. However, it is clear that in the relevant cases the courts have never held that preemption is foreclosed; only that the bases articulated by Congress were unsupported by the then evidentiary record. Even absent federal preemption, there are still a host of state and federal laws that can quite easily come into play an avoid conflicts with the agreement.
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Re: Re: Re: 28 USC 1498
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Re: Re: Re: Re: 28 USC 1498
Yes, states do present a wrinkle in some, but not all cases. Caselaw does recognize immunity waivers in certain instances. As for those where a waiver does not apply, I know of no state that does not provide under state law the full equivalent of a Fifth Amendment taking. If by a stretch of the imagination such an equivalent is not available, there are other legal doctrines that may be usefully employed (e.g., an in rem action, among others).
While federal and state actions would not offer the opportunity for injunctive relief as a general rule, TRIPS does recognize infringement by governments as a special exception to the rules that apply to private parties, and establishes a protocol that generally reflects taking principles.
One final comment apart from waivers. I personally do not buy in to the argument that the enactment of IP laws in underdeveloped nations is necessarily a bad thing. Quite recently I read a research paper wherein the collected data found a correlation between the enactment of such laws and economic improvement in such countries. Unfortunately, I did not keep a copy so I am unable to provide a cite. I did read it, however, within the past month or so.
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http://www.youtube.com/watch?v=ZM6zdYbwP_Q
"...the only way I know to make money while sleeping is to become a songwriter." (that is the funny quote)
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Don't worry about other countries using that loophole
Think about all those treaties US government signed with Native Americans, and how many loopholes the Indians were able to use. The ACTA is just a modern version of those.
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How about we tell The USPTO to shove their ACTA up their COICA and implode the DMCA into oblivion?
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WTO interpretations of this language
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"what's the point of ACTA in the first place?"
And why the surprise? At least a couple weeks ago on this topic, I wrote here that regardless of what's in "ACTA" that those masquerading as the gov't will just do whatever they can get away with.
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Re: "what's the point of ACTA in the first place?"
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ACTA
It's generally a good idea for a journalist to spell out the subject of an article before using it in its abbreviated form. It makes it easier for casual readers to understand what you are talking about. Contrary to popular belief in certain circles, very few people actual pay attention to these issues and won't have any prior knowledge of ACTA.
I'm assuming that you are referring to the "Anti-Counterfeiting Trade Agreement (ACTA)" and not the American Council of Trustees and Alumni (ACTA) or the Alliance for California Traditional Arts (ACTA).
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Re: ACTA
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Re: Re: ACTA
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Re: Re: Re: ACTA
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I already plan on doing that.
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Re: I already plan on doing that.
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Re: Re: I already plan on doing that.
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Haha, so true.
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Françoise Castex
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