Obama Administration: ACTA Is Binding & Don't Worry Your Pretty Little Heads About TPP

from the condescension-is-king dept

Wed, Mar 7th 2012 2:34pm — Mike Masnick

We've covered how Senator Wyden has been pressing the administration on ACTA and TPP concerning the process behind both agreements. The State Department has now responded by admitting that ACTA is, in fact, binding on the United States.

Under international law, the ACTA is a legally binding international agreement. By its terms, the ACTA enters into force when at least six parties have deposited instruments indicating their consent to be bound. Accordingly, once in force for the United States, the ACTA will impose obligations on the United States that are governed by international law. As in the case of other international agreements, it is possible that Congress could enact subsequent changes in U.S. law that are inconsistent with U.S. international obligations.

That's interesting, because it's what many people had assumed (and what other signatories to ACTA have been saying), but actually contradicts earlier statements from the USTR suggesting that we can ignore parts of the agreement that we don't like or which conflict with existing US law. It also means that, as we've been warning, ACTA dangerously restricts Congress from passing new laws that could push back on some of the worst aspects of copyright law. Sure, Congress could ignore ACTA, but there would be substantial problems if it were to do so. In other words, ACTA is binding on the US under international law... but not under US law. Of course, international law trumps US law here, so that's kind of meaningless.

And yet, the administration still insists that it can pass and ratify ACTA without Congressional approval. In the same letter, the State Department says that it doesn't see any problem in having the President approve ACTA without Senate ratification, because it doesn't require any changes today. First of all, it's not entirely clear if that's true, and there are some areas where it is believed current ACTA provisions likely come into conflict with US law (though the USTR squeezes around this by saying that all depends on how you interpret the phrases in ACTA -- which seems like an issue of piss poor drafting of the agreement by the USTR).

Either way, the claim that this does not need Senate ratification appears to be incorrect. The fact that it is restricting Congress's ability to act on an issue which is Congress's mandate (not the administration's) suggests that there is simply no way that the President can sign ACTA without it being ratified by Congress. Even if it doesn't force Congress to change laws today, it does unquestionably hinder Congress' ability to change laws in the future.

Perhaps even more ridiculous is that earlier today, USTR Ron Kirk appeared before a Senate committee on trade issues, where Senator Wyden was able to ask Kirk about both ACTA and TPP. The answers were quite disturbing, and show the rather imperialistic attitude that the administration and Kirk in particular have taken on this issue: After repeating what the State Department said about it being binding, the discussion on TPP is downright ridiculous. Kirk insists that the USTR has been super-transparent on TPP. That's interesting, considering that no documents have been released, no efforts to discuss the document with the public are planned and, in fact, the USTR has planned to keep all background documents on TPP secret until four years after the agreement is ratified.

Wyden points out that the public is clearly up in arms over intellectual property issues, as seen by the response to SOPA and PIPA -- and notes that, currently, the USTR is requiring people to have security clearance to see TPP. He questions what's wrong with having the USTR publicly display what its own proposals are for TPP. He's not saying they should reveal trade secrets or proposals from others -- but make the US's own proposals public. Kirk insists that it's unfair to compare TPP to SOPA and PIPA. That would be a lot more convincing if we could actually see the details, but we can't, since we don't have security clearance and we haven't been "chosen" by the USTR.

In response to the request to put the proposals up publicly on the internet, Kirk insists that if we do that, we'll "never be able to negotiate another trade agreement again" because others wouldn't come to the table. Kirk made this identical argument about ACTA. Of course, later, after the secret documents leaked, we found out that most of the other negotiators wanted the documents public... but it was the US and Ron Kirk who wanted them secret. So I'm sorry, but his claims that others would leave the table and wouldn't negotiate just don't make any sense at all.

Wyden points out, again, that "the norm" for how the public views intellectual property changed on January 18th -- and the public needs to be involved in these debates. He asks Kirk to "throw open the doors" to the USTR so that the TPP negotiation info is a lot more public. Kirk's response is quite bizarre. He talks about the importance of democracy and elections, and letting the elected officials represent the public's interest.

Forgive me for asking, but when did we elect Ron Kirk to head the USTR? He's an appointee, not an elected official. He doesn't represent the public. At all. And that needs to change.

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Filed Under: acta, binding, copyright, ron kirk, ron wyden, tpp, transparency, ustr

174 Comments

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Anonymous Coward, 7 Mar 2012 @ 2:43pm

Yes and Kirk was appointed by Obama who is doing nothing to reign this in. But yet how many of you chumps will still vote for Obama come November? Yeah, thought so. Obama the Dictator in 2012!
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:Lobo Santo (profile), 7 Mar 2012 @ 2:48pm

:eyes closed:
I don't want to live on this planet any more.
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A Guy (profile), 7 Mar 2012 @ 2:50pm

Maybe Romney isn't so bad
There should be a better enforcement mechanism to challenge President's who are clearly over reaching their authority.

I think I'm voting republican in the next cycle.
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Anonymous Coward, 7 Mar 2012 @ 2:54pm

And yet, the administration still insists that it can pass and ratify ACTA without Congressional approval.

The USA has been in a "state of emergency" since a few days after 9/11. Obama can do absolutely anything he wants, include extend the "emergency" indefinitely; we've effectively been a dictatorship for over a decade now.
Congress still gets to play democracy, as long as it toes the line. Remember how they reworded part of the NDAA when Obama complained that it might let Congress steal his ability to imprison people without due process?
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:Lobo Santo (profile), 7 Mar 2012 @ 2:55pm

Re: Correction
Actually, the USA has been in a state of emergency continuously since 1979.

Seriously, look into it.
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Anonymous Coward, 7 Mar 2012 @ 2:59pm

The U.S. makes public the texts it proposes at the World Trade Organization, as does everyone else. That doesn't stop people from negotiating with us.
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Anonymous Coward, 7 Mar 2012 @ 3:00pm

Re: Maybe Romney isn't so bad
Don't vote "republican" or "democrat". Vote "sane".
Vote for someone who has a shred of common sense, who isn't a greedy idiot. Vote for someone who won't take campaign contributions and then write arbitrary laws hindering the competition of those companies.
Don't vote for a party. Vote for a person who actually wants to work for the public good.
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Anonymous Coward, 7 Mar 2012 @ 3:00pm

6:57 - "...The truth is an option..."

so ummm... what?
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Coward (Anon), 7 Mar 2012 @ 3:01pm

At the risk of turning this into a political debate if I don't vote for Obama, who am I supposed to vote for? The guy who's wife complains about how expensive it is to fill up the tank on her 2 Cadillacs or the guy who thinks birth control should be illegal even for married couples or the guy who was thrown out of Congress for ethics violations.

Do you really think any of the GOP candidates have better views on IP issues than Obama? I didn't hear any outrage coming from them over SOPA/PIPA or ACTA just a few weasel words about the importance of an open and free Internet same as Obama. The bottom line is that the Internet is smarter than the people creating these bad agreements and we'll just innovate around them. Large scale mesh-networks or darknets anyone?
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MrWilson, 7 Mar 2012 @ 3:11pm

Re: Re: Maybe Romney isn't so bad
Please point out an actual person who can win a nomination for the presidency without having to spend hundreds of millions of dollars on the campaign or curry favor with wealthy special interests and who won't be assassinated or sabotaged by people who honestly believe it's their right to buy candidates because they have enough money to do so, who in addition agrees with at least 85% of my political beliefs, which differ greatly from members of Congress with whom this president would have to work to improve things, but who magically has the ability to persuade other politicians who are already bought to do things his/her way, and I will vote for this mythical figure.
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Josh in CharlotteNC (profile), 7 Mar 2012 @ 3:12pm

Re:
I'll be writing in Ron Wyden.
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Anonymous Coward, 7 Mar 2012 @ 3:13pm

Re:
Wanted to say this, but was too tired to type it out coherently. Thanks for voicing what was swirling around my head.
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Anonymous Coward, 7 Mar 2012 @ 3:14pm

Wyden did his best to get definitive answers but all he got was the run around. it's blatantly obvious that Kirk, along with the rest included in the ACTA and TPP discussions dont want nor will allow anyone who represents the people (who, remember, will be the most adversely affected section) to attend, let alone give input, into the discussions. in other words, he and his cronies have been bought and the public has been screwed yet again! so much for 'the representatives of the people'!
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MrWilson, 7 Mar 2012 @ 3:14pm

Re:
Because an out of touch plutocrat or a dogmatic religious misogynist wouldn't also be bad for the country...?
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Anonymous Coward, 7 Mar 2012 @ 3:15pm

Kirk comes off as being completely disingenuous. If i were Senator Wyden i would be very unhappy with his testimony.
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bshock, 7 Mar 2012 @ 3:16pm

Re: Re: Maybe Romney isn't so bad
Don't vote "republican" or "democrat". Vote "sane".
Vote for someone who has a shred of common sense, who isn't a greedy idiot. Vote for someone who won't take campaign contributions and then write arbitrary laws hindering the competition of those companies.
Don't vote for a party. Vote for a person who actually wants to work for the public good.

So you're basically saying again and again, "Don't vote."

I'm serious. There is no one running for public office who even vaguely satisfies any of your requirements.
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Anonymous Coward, 7 Mar 2012 @ 3:18pm

Re:
I think that the next step would be to ask for direct answers instead of being polite. Start off by telling Kirk that if he answers and his answers are not the truth or turn out to be different than what happens later that he will be indicted for perjury. Put Kirk on the hotseat and then when he answers in something other than the truth nail him. Oh, and don't let him know you are going to do this beforehand so he can't refuse to testify like so many of the presidents men have done.
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Beech, 7 Mar 2012 @ 3:26pm

Infuriating.

Is it too early to start talking armed revolt?
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crade (profile), 7 Mar 2012 @ 3:27pm

Re: Maybe Romney isn't so bad
Yeah, then the republicans overreach their authority and you "get back at them" by voting democrat next cycle.. yay.
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Anonymous Coward, 7 Mar 2012 @ 3:28pm

Ron Paul
Off topic a bit: I'm thinking of voting for Ron Paul, but my friend says he's on the same agenda for the Republicans. How do I convince the otherwise?
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crade (profile), 7 Mar 2012 @ 3:34pm

Re: Re: Correction
Yeah but it's in a state of even more emergency now!
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photomatt (profile), 7 Mar 2012 @ 3:38pm

Re: Re: Re: Maybe Romney isn't so bad
Vote "None of the Above"

Seriously. I wonder how many votes it would take before they started to pay attention.

I also thought to vote for "Not Sure" but I feel that would be a little too prophetic.
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crade (profile), 7 Mar 2012 @ 3:40pm

Re: Ron Paul
What do you mean? What makes you think your friend is wrong if you don't know how to convince them otherwise?
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Chosen Reject (profile), 7 Mar 2012 @ 3:48pm

Re: Re:
"When your only choices are King George or a crazy King George, it seems it's time to unbox some tea, take the red coats off, and go for a little horse ride."

--Paul Revere
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A Guy (profile), 7 Mar 2012 @ 3:50pm

Re: Re: Maybe Romney isn't so bad
If the next guy plays more than lip service to our privacy and free speech rights while growing the economy, I'll vote for him again.
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silverscarcat (profile), 7 Mar 2012 @ 3:51pm

Re:
No it's not.

How long until society collapses again?
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(A), 7 Mar 2012 @ 4:00pm

I DON'T QUESTION AUTHORITY.
I just disobey it. ;)
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crade (profile), 7 Mar 2012 @ 4:01pm

Re: Re: Re: Maybe Romney isn't so bad
if pigs fly I will look up more often.
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gorehound (profile), 7 Mar 2012 @ 4:02pm

Re: Maybe Romney isn't so bad
Either we are so screwed.
Know this fact...............someday those in power will get exactly what they deserve.And that is a Historical fact as it has repeated itself many times in the past.
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John Fenderson (profile), 7 Mar 2012 @ 4:08pm

Re: Ron Paul
Look very, very carefully at Ron Paul. He has some extremely problematic stances. He is closer to the Republicans than the Democrats, but is neither. He's also not really a Constitutionalist. His views are more in line with the Articles of Confederation.

All in all I don't think he's the least of the three evils.
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Bergman (profile), 7 Mar 2012 @ 4:17pm

How exactly is it NOT treason to knowingly and willfully subvert the constitution in a way that suborns U.S. law to a foreign power?
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Someantimalwareguy (profile), 7 Mar 2012 @ 4:17pm

Re: Re: Re: Correction
Hence the "Urgency of Now" lol...
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Desciple Of God, 7 Mar 2012 @ 4:20pm

"Their" Plan
ACTA - Time To Win 8

Penting +4 User is deleted by ACTA User is deleted by ACTA

Jumat, 2 Mar '12 13:30, dibaca 144 kali

Just got this e-mail. Don't take your freedom for granted. Earn it. It's not something you should receive on a silver platter. Help us fight the TRUE CONSPIRACY:

Dear friends,

In days, the European Commission will try a last ditch attempt to revive ACTA. But we can shine a light on their dirty trick and foil their plans.

Governments are turning their back on ACTA one by one, so the EC is asking their Court of Justice to give the treaty the greenlight and renew its momentum -- but they plan to manipulate the process by giving the court only a narrow, uncontroversial question to consider, hoping it will lead to a positive outcome.

We can push the court to see though the EC's ploy and look at all the legal implications of this censorship treaty on our freedoms -- forcing a negative decision that kills ACTA for good. Click below to sign the call:

http://www.avaaz.org/en/acta_time_to_win//?vl

The European Commission spent five years negotiating ACTA in secret with corporations, but in the last five weeks we've blown the ACTA debate into the open. Now the Commission is fighting to keep ACTA alive by getting the blessing of the EU�s highest court. Unless we step in now the Commission, well-versed in bureaucratic dodges, may only present the court with a narrow question, preventing it from assessing ACTA's impacts on our freedom of expression, privacy and democracy.

We�ve forced governments in Poland, Germany, Bulgaria and other countries to freeze ratification. And now, if we win this battle in the European Commission, we can stop ACTA for good. If the EU does not ratify, ACTA will never become a global agreement and negotiators will have to go back to the drawing board to produce a treaty that stops genuine abuses but protects our rights.

Let's urgently call on the Commission and Court to give ACTA a full and fair hearing, and make sure the whole truth about this threat to our fundamental freedoms is revealed. Sign now and send this to everyone:

http://www.avaaz.org/en/acta_time_to_win//?vl

Millions of us joined together to fight for Internet freedom and stop the US censorship laws. We won, but now this threat is back on a global scale with ACTA. We've done what no one thought we could and stopped the treaty's march to ratification. Let's finish what we started and beat back ACTA, for good!

With hope and determination,

Alex, Pascal, Laura, Alice, Ricken, Dalia, Diego and the whole Avaaz team

PS. Check out the media coverage of our 2.4 million strong petition delivery to the European Parliament on Tuesday -- we caused quite a stir!

Activists present anti-ACTA petition to EU (Associated Press)
http://www.google.com/hostednews/ap/article/ALeqM5goN98YMyvwPqQiW31gBs8U-xnvIg?docId=7afd9ee f4f6b44acbb43b1029820bc87

Anti ACTA petition hits European Parliament (The Inquirer)
http://www.theinquirer.net/inquirer/news/2155775/anti-acta-petition-hits-european-parliam ent

ACTA opponents present 2 million petition to EU (Washington Post)
http://www.washingtonpost.com/business/opponents-of-acta-anti-counterfeiting-treaty-present-p etition-with-2-million-names-to-eu/2012/02/28/gIQAmHCsfR_story.html

More Information:

ACTA approval stalled by European commission (Guardian):
http://www.guardian.co.uk/technology/2012/feb/22/acta-stalled-european-commission?newsf eed=true
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Rekrul, 7 Mar 2012 @ 4:34pm

And yet, the administration still insists that it can pass and ratify ACTA without Congressional approval.

Absolutely. King Obama can do anything he wants.
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Rottweiler, 7 Mar 2012 @ 4:48pm

But...
What is expected to happen if the EU fails to ratify ACTA? Will ACTA only be enforced in the US if that happen?

Anyway, this is getting more and more ridiculous, but in the light of this revelation, could the congress or the people do something about it since it is a clear violation of the US constitution that Obama signed the treaty without congress ratification? I hope there is still something that can be done...
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Paul Hobbs (profile), 7 Mar 2012 @ 4:50pm

Re: :eyes closed:
Awww, don't be like that. There are some great places to live:

http://www.cnngo.com/explorations/life/united-nations-announces-world%E2%80%99s-happiest-co untry-247768

I live in Australia (we came second on the happiest countries list), and while far from perfect, it's a pretty nice place to live. Sure, we're not a superpower, but we do have cute koalas and 17 of the 20 most venomous snakes in the world.
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lolzzzzz, 7 Mar 2012 @ 5:16pm

YOUR ALL DOOMED
haha you didn't fight when they were weak enough to be stopped now bend over
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Nastybutler77 (profile), 7 Mar 2012 @ 5:16pm

Re: Re: Re: Re: Maybe Romney isn't so bad
I also thought to vote for "Not Sure" but I feel that would be a little too prophetic.

I see what you did there...
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Anonymous Coward, 7 Mar 2012 @ 5:21pm

The State Department has now responded by admitting that ACTA is, in fact, binding on the United States.

Why is this a big scoop? Treaties are binding, why else would anyone bother negotiating them?
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Anonymous Coward, 7 Mar 2012 @ 5:25pm

Re: Ron Paul
He's a right wing republican whose foreign policy is isolationism.
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Idwal (profile), 7 Mar 2012 @ 5:38pm

Re: Re: Ron Paul
Your characterization of Paul as a confederate is about right, but... which stances do you think are 'extremely problematic'?

He's a little nuts on a couple of things, but by and large he seems to be the sanest on a whole host of issues.
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Idwal (profile), 7 Mar 2012 @ 5:41pm

Re: Re: Ron Paul
Isolationism and non-interventionism are pretty seriously different positions.

Paul still advocates a high degree of diplomatic involvement in global issues, just not the gonzo military involvement that's bankrupting us and making us enemies.
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Mike Masnick (profile), 7 Mar 2012 @ 5:49pm

Re:
Why is this a big scoop? Treaties are binding, why else would anyone bother negotiating them?

Treaties require ratification in the Senate.

I'm glad to see you finally admitting that ACTA is a treaty.

Now, will you come out in support of having it ratified in the Senate?
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silverscarcat (profile), 7 Mar 2012 @ 5:55pm

Re: Re: :eyes closed:
I'm terrified of snakes.
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Anonymous Coward, 7 Mar 2012 @ 6:03pm

And now obviously they are saying that the new "international obligations" must be upheld. They decided all without the public input or public representatives and even hassled the power away from congress for international treaties. Now they want everybody to just bent over?

Fine, but I am the biggest criminal in IP history for here now on.

The problem is the granted monopolies that are the root cause of all this BS, now it is time to start pirating and bootlegging in an scale never done before.
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christian, 7 Mar 2012 @ 6:13pm

Re: Re: Re: Maybe Romney isn't so bad
ron paul has a record that can run circles around any other candidate. look him up, his 30+ year record speaks for itself
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Anonymous Coward, 7 Mar 2012 @ 6:28pm

"...and there are some areas where it is believed current ACTA provisions likely come into conflict with US law..."

And those areas are...?

"[T]he claim that this does not need Senate ratification appears to be incorrect. The fact that it is restricting Congress's ability to act on an issue which is Congress's mandate (not the administration's) suggests that there is simply no way that the President can sign ACTA without it being ratified by Congress. Even if it doesn't force Congress to change laws today, it does unquestionably hinder Congress' ability to change laws in the future."

There is nothing in the agreement that binds the hands of Congress with respect to its Article 1 powers. US law already comports with the agreement's provisions, and even if Congress later decides to scale back some US law, it does not necessarily follow that the US would not be in compliance.
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Anonymous Coward, 7 Mar 2012 @ 6:39pm

Re:
Notice that the Law Advisor to the DOS does not call it a "treaty". He call it an international agreement, which is an important distinction.

What I do find curious is why a senator is writing a letter to the Department of State and not the USTR, Mr. Kirk. The DOS does not have cognizance over trade agreements. I believe I am accurate is saying that Ron does not report to Hillary.
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david, 7 Mar 2012 @ 7:07pm

obama
Obama is bought and paid for like most of the liberal leftwing drum beaters in Congress. Vote them all out !
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E. Zachary Knight (profile), 7 Mar 2012 @ 7:08pm

Re:
Actually, it does. If one day Congress comes to the realization of just how flawed the DMCA is and decides to repeal or roll it back to something sane, ACTA would prevent them from doing so. Why? Because many of the provisions in the DMCA are codified by ACTA. That is certainly a hindrance on Congresses power to manage copyright law.
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Cowardly Anonymous, 7 Mar 2012 @ 7:22pm

Re:
"There is nothing in the agreement that binds the hands of Congress with respect to its Article 1 powers. US law already comports with the agreement's provisions, and even if Congress later decides to scale back some US law, it does not necessarily follow that the US would not be in compliance."

It binds them from making any change that would make the US non-compliant. The fact that there remains a degree to which the laws could be scaled back is a far cry from the Constitutional provisions which do not even go as far as mandating copyright law exists. Also, as Senator Wyden pointed out, ACTA binds Congress in ways not present in the TRIPS agreement.
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Jay (profile), 7 Mar 2012 @ 7:27pm

Re: Re: Re: Maybe Romney isn't so bad
Buddy Roemer, Jill Stein, Gary Johnson...

There ARE other candidates. I just find that the Electoral College system should be abolished.
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Cowardly Anonymous, 7 Mar 2012 @ 7:32pm

To the "Honourable" Ron Kirk
When the public cannot access the details of a treaty, it is unable to generate an opinion that goes beyond the rumors and assumptions you are so distasteful of. Our representatives are unable to represent such an absence of opinion.

For the democratic process to function, while there is no requirement that the public are allowed to speak with you directly, there is a requirement that that public be informed.

Further, direct interfacing with the public was unwieldy in large part because of disinterest and a high cost in gathering opinion with the communications abilities present at the time of the drafting of the Constitution.

The second point has been solved as of a number of years ago as Internet bandwidth passed a certain threshold that allowed for forums (a name which just so happens to have meaning in the history of democracy, see Athens). The first point, at least with regard to Internet policy was provably flipped as of January 18th of this year.
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Drew, 7 Mar 2012 @ 7:58pm

Re:
Unfortunately, under the current way elections work in the U.S., Obama's likely to be the least of all evils in 2012, excepting a surprise run of president by Ron Wyden... I suppose we have the (very minor) consolation that he's not quite as bad as any of the complete lunatics the republicans are offering right now..
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Anonymous Coward, 7 Mar 2012 @ 8:01pm

Re: Re:
Actually, it does not, as even counsel for the Department of State notes in his letter to Wyden.
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Anonymous Coward, 7 Mar 2012 @ 8:04pm

Re: Re:
I do not know if Wyden stated ACTA binds Congress, but if he did he is simply wrong.
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Alex, 7 Mar 2012 @ 8:05pm

"Of course, international law trumps US law here"

> implying the US cares about or follows international law to begin with
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Anonymous Coward, 7 Mar 2012 @ 8:05pm

Ron Paul research
Besides Wikipedia, are the any articles online you can suggest? I'd like to do some massive research about him, before considering writing Mr. Paul on the ballet.

Ron Wyden too, since he seems to be one the few who gives a damn anymore about our rights.
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Jay (profile), 7 Mar 2012 @ 8:11pm

Re: Re: Re: Ron Paul
He's confused on how to read the Constitution, particular health issues. His pro-life stance would be very problematic since he believes that states should have more say in what happens to a woman's body.

If you've looked at Virginia's "state rape" law, you can see how this won't go well for what he's thinking.

He also seems confused on allowing states damn near free reign on gay rights. This is a very dangerous stance to take.

And I would not even get into the judge nominations. Having an even more conservative justice system would equate to more "technical" judges that avoid using the Constitution to understand issues and merely following procedural issues that make the system slower and more bureacratic.
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Anonymous Coward, 7 Mar 2012 @ 8:15pm

Re: Re:
Gotcha. It seems then the appropriate term then is executive agreement, as opposed to treaty. The point I think is that both treaties and executive agreements have the effect of binding the United States. Apparently, executive agreements have largely supplanted treaties in international agreements. It's not clear to me how(or why) an executive agreement can be converted to a treaty. I doubt disliking it is a criteria though.

From Findlaw:

"The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between �treaties� and �agreements� or �compacts� but does not indicate what the difference is. The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.
During the first half-century of its independence, the United States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940-1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice as many treaties as executive agreements. In the 50-year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since 1939, executive agreements have comprised more than 90% of the international agreements concluded."
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Anonymous Coward, 7 Mar 2012 @ 8:32pm

Re: Re: Re: Ron Paul
Paul still advocates a high degree of diplomatic involvement in global issues, just not the gonzo military involvement that's bankrupting us and making us enemies.

Diplomacy without a credible threat of military involvement is what France and other pussy nations do.
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Anonymous Coward, 7 Mar 2012 @ 8:45pm

If ACTA isn't any different than existing US law, as they claim, then why do we need it at all?
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Anonymous Coward, 7 Mar 2012 @ 8:45pm

Re: Re: Re: :eyes closed:
Oh, come on, the snakes here in Australia are not a problem. When you see one, you just stay away from it by at least 6 feet (or 2m) and you are all good. Our Aussie snakes are delightfully laid back. We love them.

OK, sometimes a snake might get into a place where a snake should not be. That can happen, snakes are not that bright. Then somebody catches it and takes it out to the bush, where it should be. We have people who do that. Only very rarely is it necessary to kill a snake.
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Cowardly Anonymous, 7 Mar 2012 @ 8:57pm

Re: Re: Re:
"Under international law, the ACTA is a legally binding international agreement."

It is pretty clear that congress is as bound in respect to international law as a citizen is to congressional law.
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Cowardly Anonymous, 7 Mar 2012 @ 9:02pm

Re: Re: Re:
Reread that again, I include the bit about Wyden only to show that the agreement exceeds the provisions of other agreements. The fact that treaties and executive agreements are binding on participating nations is the only reason that countries consider them worth drafting in the first place.

No one is ever simply wrong, there is always a reason they are wrong. If you can't provide that reason, then it is likely that you don't really possess a suitable understanding of the topic to engage in debate over that topic. In other words, your assertion carries no weight.
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Anonymous Coward, 7 Mar 2012 @ 9:03pm

Re: Re: Re: Re: Ron Paul
So you don't advocate diplomacy then, you advocate forcing everyone else to comply with our rules or else ...
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Anonymous Coward, 7 Mar 2012 @ 9:08pm

Re: Re: Re:
"The point I think is that both treaties and executive agreements have the effect of binding the United States."

Everyone on Techdirt argued that Hollywood et al would later argue that the act is binding after it passed despite the fact that IP extremists (likely including yourself) argued that it's not binding before it passed.

Typical flip flopping. You're right, it's no surprise.
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Keii (profile), 7 Mar 2012 @ 9:12pm

Re: Re: Re: Re: :eyes closed:
I'm less worried about the snakes and more worried about the snake-sized spiders.
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Anonymous Coward, 7 Mar 2012 @ 9:15pm

Re:
The purpose of ACTA is to try and establish an international standard/norm among the participating nations. US law already embodies what is recited in ACTA. However, not all of the participating nations can say the same.
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Anonymous Coward, 7 Mar 2012 @ 9:18pm

Re: Re: Re: Re:
It is quite clear that the Congress is not bound. Just because some here keep trying to say it is does not make it so.
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Anonymous Coward, 7 Mar 2012 @ 9:29pm

Re: Re: Re: Re:
I'm not an expert on treaties, nor do I pose as one. It makes sense that executive agreements and treaties are conclusive on the country under international law. I never said it wasn't binding before the fact. I don't know what "Hollywood" said. Got a citation by chance?
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Anonymous Coward, 7 Mar 2012 @ 9:32pm

Re: Re: Re: Re:
It has been stated repeatedly that ACTA in no way derogates any of the powers conferred upon Congress by Article 1 of the US Constitution. It does not in any way limit the right of Congress to legislate as it sees fit, even if that means putting the US in a position where its laws and the provisions of ACTA are not congruent. If this ever was to happen, then the USTR would have to go back to the "table" and seek an amendment to the agreement. If this is not possible, and all other reasonable options are foreclosed, ACTA does provide that any signatory can withdraw upon notice to the other participants.

Since you know nothing about my legal background in constitutional law matters, your ending sentence is most surprising. It seems to me you are a bit uncomfortable entertaining the notion that perhaps what you have been reading here, and perhaps elsewhere, is not an accurate explication of law.
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Anonymous Coward, 7 Mar 2012 @ 9:37pm

Re:
It seems to me you are rejecting our system of a representative democracy, and would like to substitute in its stead pure democratic rule since representatives are so 20th century.

If this is true, there is nothing stopping you from promoting an amendment to the Constitution.
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techflaws.org (profile), 7 Mar 2012 @ 9:43pm

Re:
Right. It was much better to vote for Bush twice in a row except for the war of course.
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Anonymous Coward, 7 Mar 2012 @ 9:44pm

Re:
Ambassador Kirk was in my view quite open and responsive to questions posed to him. If anything, Senator Wyden was using his opportunity to speak as a means of politically pandering to a specific constituency. Perhaps Senator Wyden should reflect for a moment on what the term "representative democracy" (a republic) really means. Since I am fairly certain he is well aware of what the term means as a legal and practical matter, he was obviously using his alloted time to simply make pejorative jabs.
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 7 Mar 2012 @ 9:44pm

Re:
Ambassador Kirk was in my view quite open and responsive to questions posed to him. If anything, Senator Wyden was using his opportunity to speak as a means of politically pandering to a specific constituency. Perhaps Senator Wyden should reflect for a moment on what the term "representative democracy" (a republic) really means. Since I am fairly certain he is well aware of what the term means as a legal and practical matter, he was obviously using his alloted time to simply make pejorative jabs.
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techflaws.org (profile), 7 Mar 2012 @ 9:46pm

Re: Re: Re: Re: Re:
Got a proper nick by chance?
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techflaws.org (profile), 7 Mar 2012 @ 9:47pm

Re: Re: Re: Re: Re:
It is quite clear that the Congress is bound. Just because some here keep trying to say it is not does not make it so.
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mollypitcher (profile), 7 Mar 2012 @ 9:52pm

Re: Maybe Romney isn't so bad
I have been *lurking* at techdirt for several weeks now esp since this anti SOPA business started. I am not tech savvy but I have been online since 1996. It has been amazing & thrilling to be a part of (in a small way) all that happened to the world because of the internet. It has given me a much greater appreciation for "our rights" & our precious US Constitution! Many of your comments find fault with Repub or Dems, or Fox News (which I watch & enjoy after all the have the Libertarian Judge Napolitano ! Do any of the others (CNN MSNBC CURRENT & MSM even have ONE Libertarian?) Tell me if there is one, anywhere, besides the Judge on Fox. I want to get the idea out to all of you that we(the 99%) are being "ruled & suppressed & losing our 1st amendment rights" by the 1%. Who is the 1% ?? So easy to answer that: CONGRESS (they are all bought by their fellow 1%) Hollywood, BigPharma, Big OIL, MSM, Wall street,BigMedia. Dems & Repub are wings on the same turkey.
They take money from special interests then pass a law for them (SOPA in this case) that screws the 99%, always they want more money from us & want to curtail our Rights. Dodd is pure scum, he ruined finances with his buddy Barney Frank,
now the out of touch bum promised his fellow 1% hollywood &
big media THAT he could deliver "his pals in Congress" to unfairly constrain our freedom & the added perk would be that CONGRESS (1% again)would be able to shut off democracy, prevent us from connecting with one another so they could continue their backroom shenanigans that chip away at the freedom of speech & association. We have a right to appeal for a redress of grievences & they totally ignore us! If you want to know how to vote, vote OUT incumbents, our only hope is fresh blood. ( Joe the plummer is running in OHIO, please we need fresh people NOT the business as usual Repub & Dems (traitors if you ask me!)
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techflaws.org (profile), 7 Mar 2012 @ 9:52pm

Well, at least some nations are smarter than that. Good for them.
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Anonymous Coward, 7 Mar 2012 @ 9:55pm

U.S. must follow International Law, I have just one word in responce GITMO:)
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Anonymous Coward, 7 Mar 2012 @ 10:13pm

Re: Re: Re: Re: Re: Ron Paul
So you don't advocate diplomacy then, you advocate forcing everyone else to comply with our rules or else ...

No, I'm saying that diplomacy without the ability or will to back it up is futile. Why do you think US diplomacy is so effective? Because our diplomats are so fucking eloquent?

We can back shit up militarily or economically. What does France have? They won't fight so all they have left is the threat of a cheese embargo. BFD.
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Anonymous Coward, 7 Mar 2012 @ 10:16pm

Re: Re: Re: Re: Re:
Techdirt IP extremists said that

For instance

"Executive agreements do not change US law."

http://www.techdirt.com/articles/20120126/01545117544/as-ustr-insists-acta-doesnt-need-cong ressional-approval-wyden-asks-state-dept-second-opinion.shtml#c626

IOW he is arguing that executive agreements do not / can not change U.S. law, as in they are not binding.

http://www.techdirt.com/articles/20100209/1505538101.shtml

There are other articles about this, they date back a while, including how Hollywood lobbyists would argue that these treaties are not binding before hand and later change their mind about how we need to follow our international obligations once they pass.
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mollypitcher (profile), 7 Mar 2012 @ 10:17pm

Re: Re: Ron Paul
STOP with the Dem vs Repub ideology. They are both wings on the same turkey, Congress is the 1%, every one of them is a millionaire. All their spouses are in lucrative jobs in banking, media, NPR (where JRockerfella Democrat from Wvirginia's wife has a $500,000/per yr job)They finally passed a law preventing them from insider trading, now finally when they have been doing it for years !!
Vote new blood PLEASE, no incumbents we MUST send them a message or this will go on & on !
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Anonymous Coward, 7 Mar 2012 @ 10:25pm

Re: Re: Re: Re: Re: Re:
Here are some more links

http://www.techdirt.com/articles/20101025/01382311559/us-basically-says-it-ll-ignore-anythi ng-in-acta-that-it-doesn-t-like-so-how-about-everyone-else.shtml

http://www.techdirt.com/articl es/20110209/00065113017/eu-acta-is-binding-treaty-us-acta-is-neither-binding-treaty.shtml
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Anonymous Coward, 7 Mar 2012 @ 10:27pm

Re: Re: Re: Re: Re: Re:
http://www.techdirt.com/articles/20100428/1416549224.shtml#c111

Also, look at the comment that Mike was responding to.

Looks like Mike's response was right on the money.
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Pixelation, 7 Mar 2012 @ 10:28pm

Will Congress stand up or will we be let with no alternative?
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Frank, 7 Mar 2012 @ 10:36pm

Obama likes to sue, trying to circumvent the Constitution should get him sued by the government. First run a bill through Congress disallowing him to use federal money for defense, and claim it's binding without his signature.

Civics classes as a prerequisite for the job should be mandatory. Our government isn't that complicated, but these clowns have no idea what checks and balances are.
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Ed C., 7 Mar 2012 @ 10:52pm

Re: Re: Maybe Romney isn't so bad
Dems & Repub are wings on the same turkey.

LOL! Now that is a bumper sticker quote if I'd ever seen one. No, seriously. If I can sell them, I'll even give you half. ;)
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Anonymous Coward, 7 Mar 2012 @ 10:54pm

Re: Re: Re: Re: Re: Re: Re:
http://www.techdirt.com/articles/20110419/12341213965/ustr-says-congress-wont-be-restricted-acta.sht ml

Some quotes

MARCH 9, 2011

Senator Wyden

"If the Administration signs ACTA, doing so will not prevent the U.S. from changing its law, including in a number of specific areas like injunctive relief, damages for patent infringement, access to orphaned copyrighted works, and statutory damages, correct?"

AMBASSADOR RON KIRK (response)

"The ACTA was drafted to reflect both the general principles and specific provisions of U.S. law in the areas the agreement covers. That said, the agreement does not constrain Congress� authority to change U.S. law. "

Ron Wyden

"Does the Administration believe that the Congress and the courts are not bound by ACTA? If they are not bound by ACTA, they are therefore not constrained from developing guidelines that pertain to the issuance of injunctions against third parties, providing statutory licenses as an appropriate remedy, awarding continuing royalties in lieu of injunctions, or to implement reasonable exceptions to remedies in order to advance the public interest or to combat anti-competitive practices, correct?"

Ron Kirk

"The ACTA was drafted to reflect both the general principles and specific provisions of U.S. law in the areas the agreement covers. As a result, U.S. courts can continue to apply U.S. law and remain in conformity with the agreement. As noted above, ACTA does not constrain Congress� authority to change U.S. law. "

http://keionline.org/node/1115
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Ed C., 7 Mar 2012 @ 11:14pm

Re: obama
And vote whom in their place, the bought and paid for conservative right-wing drum beaters? If given the choice, I'd clean house and abolish the party system. Anyone who can't get into office on their own merits shouldn't get a free pass by riding on the coattails of a political party.
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Anonymous Coward, 7 Mar 2012 @ 11:19pm

Re: Re:
"Ambassador Kirk was in my view quite open and responsive to questions posed to him."

He sure as heck wasn't honest. It almost amazes me how he can say everything he said with such a straight face. Politicians lie but this guy acts so convinced of his lies.

"If anything, Senator Wyden was using his opportunity to speak as a means of politically pandering to a specific constituency. "

Yes, that constituency is the majority of Americans. That constituency is the people who elected Wyden.

"Perhaps Senator Wyden should reflect for a moment on what the term "representative democracy" (a republic) really means. "

Wyden was elected. and who elected Kirk? Some democracy you want.

"Perhaps Senator Wyden should reflect for a moment on what the term "representative democracy" (a republic) really means."

Yes, it means representing the republic.

"he was obviously using his alloted time to simply make pejorative jabs."

No, that's what your comment is doing.

Though, I do admit that Ron Kirck was honest enough to express who he was really representing.

Ron Kirck (quoted from that video)

"That the united states has the strongest intellectual property rights protection for our industries"

Note who he is representing, note who these intellectual property privileges are for. They aren't for the public, he's not to represent the public, he's representing industry interests. He even admits that.

Also, IP laws should not be about ensuring that the U.S. has the strongest IP privileges for industry interests. The founding fathers were very skeptical of IP laws and only accepted them under the condition that they were very limited in scope. They should be to serve the public benefit so that more things can enter the public domain. Their strength shouldn't be about just being the strongest, they should only be as strong as needed to optimally benefit the public good and not any stronger. To make them the strongest makes our government-industrial complex the very antithesis of free market capitalism.

Ron Kirk's pro-IP position, and the treaties he is trying to push, represents the public will and interests about as much as 95+ year copy protection lengths do. The republic wants ACTA and the other pro-IP laws that he is pushing for about as much as they want 95+ year copy protection lengths, they do not, and the masses are not being represented. What Kirk is doing is not indicative of a representative government, Wyden is the one representing the republic, not Kirk.
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Anonymous Coward, 7 Mar 2012 @ 11:44pm

Re: Re: Re: Re: Re: Re: Ron Paul
"No, I'm saying that diplomacy without the ability or will to back it up is futile.

...

We can back shit up militarily or economically."

IOW, it's not diplomacy you are advocating, it's do as we say or else ...
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Anonymous Coward, 7 Mar 2012 @ 11:45pm

No transparancy because it'll weaken their negotiatians with other countries, if other countries know before hand, whats in those policies..........hmmm, ok..........and using intimidation, either through withholding trade agrements and government authority pressure i.e. megaupload........are those also part of "negotiatians"
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Al Bert (profile), 7 Mar 2012 @ 11:59pm

ocd
We all know where this is going, but it's the time between now and open revolt that will suck the most. As an engineer, it's frustrating to be surrounded by shit that cannot be reasonably fixed.
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Jay (profile), 8 Mar 2012 @ 12:01am

Re: Re: Re: Ron Paul
They finally passed a law preventing them from insider trading, now finally when they have been doing it for years !!

The STOCK Act has no teeth to it. The part that takes away the insider trader... Got traded away. It's legislation with no meat to it. Crony capitalism ftw.
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k (profile), 8 Mar 2012 @ 12:34am

Re: Ron Paul
Actually, his agenda is far more extreme than even the 'mainstream' republicans. Though he has gotten very good at hiding it over the past 30 years, Ron Paul is a Christian Fundamentalist *AND* a White Supremacist. He puts clever double speak and spin on everything, including those two facts, because he's learned that those views have gotten less & less popular. Do your own research, dig past the PaulBot reposts of the same pro-Paul crap over & over.

Paul is closely tied to the heads of several of the largest white supremacist groups in the US and Canada. The Mises Institute, the founders of which he has been friends with for years, and whose ideas he repeats almost verbatim just leaving out the bits about how women and minorities shouldn't have the same rights as white men. Don't let them sell you the BS that it's just Austrian Economics and you don't understand. Modern Austrian Economics is simply the use of economic ideas to bring about changes that forward their causes. Look into that, if you don't know who David Duke is - look him up & realize that he and Paul were mutual admirers & supporters of each other. Look into who oversaw the controversial 'I didn't write those' newsletters - Paul's wife, Daughter & one of his closest friends (who would go on to form Mises).

He is a very skilled liar and following many years of 'this is how to sell this to the general populous' instructions from Christian Extremist and White Supremacist groups. These are not hypotheticals or loose connections, these are facts and can be backed up by Paul's own history, words, business filings, etc. Unfortunately most of his most blatant exposure stretches back to a literal paper trail that was never digitized. If someone has the time to start digging into that, what they'd find would cause much of Paul's support to evaporate almost over night. Unfortunately the media has never taken him seriously enough to bother doing so.
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k (profile), 8 Mar 2012 @ 12:34am

Re: Ron Paul
Actually, his agenda is far more extreme than even the 'mainstream' republicans. Though he has gotten very good at hiding it over the past 30 years, Ron Paul is a Christian Fundamentalist *AND* a White Supremacist. He puts clever double speak and spin on everything, including those two facts, because he's learned that those views have gotten less & less popular. Do your own research, dig past the PaulBot reposts of the same pro-Paul crap over & over.

Paul is closely tied to the heads of several of the largest white supremacist groups in the US and Canada. The Mises Institute, the founders of which he has been friends with for years, and whose ideas he repeats almost verbatim just leaving out the bits about how women and minorities shouldn't have the same rights as white men. Don't let them sell you the BS that it's just Austrian Economics and you don't understand. Modern Austrian Economics is simply the use of economic ideas to bring about changes that forward their causes. Look into that, if you don't know who David Duke is - look him up & realize that he and Paul were mutual admirers & supporters of each other. Look into who oversaw the controversial 'I didn't write those' newsletters - Paul's wife, Daughter & one of his closest friends (who would go on to form Mises).

He is a very skilled liar and following many years of 'this is how to sell this to the general populous' instructions from Christian Extremist and White Supremacist groups. These are not hypotheticals or loose connections, these are facts and can be backed up by Paul's own history, words, business filings, etc. Unfortunately most of his most blatant exposure stretches back to a literal paper trail that was never digitized. If someone has the time to start digging into that, what they'd find would cause much of Paul's support to evaporate almost over night. Unfortunately the media has never taken him seriously enough to bother doing so.
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Anonymous Coward, 8 Mar 2012 @ 1:09am

Re:
Apparently, you miss the fact that this has been winding it's way through since the Bush years, so I'm going to go with the lesser of the evils here and vote Obama once again.
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PaulT (profile), 8 Mar 2012 @ 1:19am

Re:
Yes, because the Republican lineup is full of astoundingly solid choices who will never do any of the things Obama has done and worse, and Americans are known for their universal support of 3rd parties if neither party seems a good choice.

/end sarcasm
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Christopher (profile), 8 Mar 2012 @ 1:24am

Re: Re: Re: Re: Re: Re: Re: Ron Paul
BINGO! That is exactly what that Anonymous Coward who made the quotes in question is advocating and it is NOT acceptable in the slightest.

It's the world equivalent of being a playground bully!
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Christopher (profile), 8 Mar 2012 @ 1:25am

Re: Re:
Actually, no, ACTA does NOT embody United States law. It goes much further than United States law on many issues, to damned far to be blunt.
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Josef Anvil (profile), 8 Mar 2012 @ 2:04am

Re: Re: OUCH
"Ambassador Kirk was in my view quite open and responsive to questions posed to him."

That single sentence almost burst a blood vessel in my brain. ARE YOU FUCKING NUTZ?!!!???!!!?? Did you listen to the clip at all or does the fact that he spoke at all, indicate openness and responsiveness in your mind?

Allow me to help you: When asked what would happened if Congress enacted laws that run contrary to ACTA, Kirk's response was that Congress would not be constrained in any way when passing laws that are in line with ACTA. Well DUH, we already know that. That WASN'T the question asked.

When asked about the process and transparency, Kirk's response is basically that we are doing things in secret the way they have always been done and see no need to change that because people are speaking out. He then goes on to say there is misinformation out there and we want people to know that TPP is not like SOPA/PIPA at all, but we can't tell you what it's about. This begs the question, how can we be informed about something that we can't be informed about?

Perhaps you should reflect for a moment on the fact that there are many "appointed" members of the Executive branch that are not elected nor representative of the public. Jan.18th showed the world that we may be a republic, but we will certainly not sit quietly and accept abuse from our representatives.
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Anonymous Coward, 8 Mar 2012 @ 2:47am

A law was just passed that allows for the imprisonment of Americans indefinably without charges, the government says it can kill Americans anytime and anywhere it wishes to and the president says he can pass laws with out congress.
Wake up we live in an authoritarian regime.
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JMT (profile), 8 Mar 2012 @ 3:41am

Re: Re: Re: Re: Ron Paul
What part of Iraq and Afghanistan were just "a threat"?
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Anonymous Coward, 8 Mar 2012 @ 3:58am

They're not done yet, there are still some things in the public domain they need to get back under copyright before someone bases new art on them. We don't want any cultural advancement without a royalty check do we?

Recently, Congressional action saved Igor Stravinsky's "The Rite of Spring" from being played by music students and school bands without paying corporate royalties, so they'll get there eventually.
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Dolz (profile), 8 Mar 2012 @ 4:04am

Re: Re: :eyes closed:
Who do you think you're kidding! You have 17 of the 20 most venomous snakes in the world and CLAIM you're not a superpower.
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Anonymous Coward, 8 Mar 2012 @ 4:06am

Re: Re: Re: OUCH
Don't burst a blood vessel. You are responding to an industry shill whose best interest is to get paid for something that was done 100 years ago. He clearly doesn't grasp that a shorter copyright or patent duration will force more innovation and cause our economy to expand. In a nutshell, he's a lazy ass who wants to rest on his fore-bearers' laurels instead of doing some honest work for himself.
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Anonymous Coward, 8 Mar 2012 @ 4:16am

Re: Re: Re: Re: Re: Re: Re: Ron Paul
Force is the ultimate arbiter in any dispute. If you cannot backup what you say with force then you have to rely on other peoples' respect to get what you want. When someone is in the position of Iran and pursuing technology that half the world doesn't want them to have, you have to have force to backup your positions or you will make no headway. Why do you think Iran is willing to talk about their programs with the UN? Its not because they respect the UN or the US - its because they fear our military. Iranian leadership is just too bullheaded stupid prideful to back away from what will ultimately be their destruction.

That's not to say that that force or threat of force is right. But sometimes there is no other way. With Iran we have been adding trade sanctions for years and they aren't getting the hint. They probably won't get it until the missiles start landing on their heads, and by then there is no going back.
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Anonymous Coward, 8 Mar 2012 @ 4:28am

Remember "Speak softly and carry a big stick"?
It doesn't work as well when you've cut the stick down to have part over here, part over there, some sitting in another place, and spread over 155 countries. There's a reason the US has to spend so much more than anyone on military, even before the same force levels got 30% more expensive in the last few years to bolster Halliburton and Bechtel profits.
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Anonymous Coward, 8 Mar 2012 @ 4:32am

Re: Re: Ron Paul
if that's what you believe, that you have sadly bought into the lies of the MSM.

"Christian Extremist and White Supremacist groups."

He's a libertarian, and as such uncomputable with those groups.

"Modern Austrian Economics is simply...the skillful use of math to rob people from their money, and create profits from nothing."

FTFY

BTW, have you seen the 'formulas' they use on wall-street? Its a giant pyramid scheme.
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Keyboard grinder, 8 Mar 2012 @ 4:43am

Ruled by content industry
I guess no other country has such a high content industry lawyer rate in its government like the USA.
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Anonymous Coward, 8 Mar 2012 @ 5:42am

Re: Re: Re:
Wyden was elected. and who elected Kirk? Some democracy you want.

Kirk reports to President Obama, who is an elected official. There is no member of the President's staff, be they a member of the cabinet or otherwise, who was elected to their position within the Executive Branch. If you are inclined to point a finger, they you should do so by directing your concerns to the President. He is, after all, the boss of the Executive Branck.

While it is not relevant to the issue of "treaty" vs. "international/executive agreement", it is useful to bear in mind that much of what is perceived as excesses in US law were instituted by Congress precisely because of "treaty" obligations". They marked a cardinal change in longstanding US law, with the excesses for the most part eminating from Europe. This is, of course, one of many concerns associated with international harmonization, as was pointed out by many legal professionals in the debate leading up to the enactment of so-called "patent reform".
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Anonymous Coward, 8 Mar 2012 @ 5:45am

Re: Re: Re: OUCH
The letter to Wyden from the DOS backs up Mr. Kirk's public statements that Congress is not bound in any way to enact whatever laws it may choose to do. Mr. Kirk is accurate.
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Anonymous Coward, 8 Mar 2012 @ 6:05am

Re: Re: Re: Re:
"Kirk reports to President Obama, who is an elected official.

So Kirk himself is not elected then. Wyden was. So when Wyden talks it's more representative of democracy than when Kirk talks.

"While it is not relevant to the issue of "treaty" vs. "international/executive agreement", it is useful to bear in mind that much of what is perceived as excesses in US law were instituted by Congress precisely because of "treaty" obligations". They marked a cardinal change in longstanding US law, with the excesses for the most part eminating from Europe. This is, of course, one of many concerns associated with international harmonization, as was pointed out by many legal professionals in the debate leading up to the enactment of so-called "patent reform"."

That's the scam we have been pointing out since the emergence of this debate. U.S. industry pushes for stricter international IP laws that no one else wants, claiming that they won't and can't affect U.S. law and that Congress won't be bound by them, and then, when they pass internationally, they later try to get congress to change U.S. laws under the pretext of meeting its international obligations.

The idea that it's other countries that want to keep these negotiations a secret is a lie. The U.S. made this same lie with ACTA and everyone knew it was a lie before the ACTA leaks. and, sure enough, ACTA leaks have shown that it's the U.S. that wanted to maintain secrecy and that it was the U.S. pushing for these laws, which we already knew. and this is no different and no one believes this scam anymore (no one believed it in the first place, what makes you think we're dumb enough to believe it now). These laws are being negotiated in secret not because no one would otherwise negotiate them, they are being negotiated in secret because the U.S. wants it that way. Obama is directly responsible for this lack of transparency, he's the one that wants this lack of transparency the most, not the requests of other countries.
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Anonymous Coward, 8 Mar 2012 @ 6:07am

Re: Re: Re: Re: Re:
(some democracy you want)
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Anonymous Coward, 8 Mar 2012 @ 6:11am

Re: Re: Re: Re: Re:
(and they try to get U.S. courts to rule in favor of these international laws under the pretext of meeting its international obligations)
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Tim K (profile), 8 Mar 2012 @ 6:25am

Re: :eyes closed:
Still waiting for the 'sad but true' button, been needing it more and more lately
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Hephaestus (profile), 8 Mar 2012 @ 6:37am

Re: Re:
"How long until society collapses again?"

3 months after martial law is declared in the US and the military takes to the streets. The majority of the soldiers of the US are in the age range of heavy internet users. The same age range as the SOPA-PIPA-ACTA protesters. While the majority of soldiers are not heavy social media types. Think of the wives, cousins, and siblings who are.
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Tim K (profile), 8 Mar 2012 @ 6:48am

Everyone in your state can't come to Washington
Last I checked, when something is put online that means everyone doesn't have to go to Washington.
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Ed Allen, 8 Mar 2012 @ 7:04am

Re: Re: Re: Maybe Romney isn't so bad
I like...

Never reelectc anybody !
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Anonymous Coward, 8 Mar 2012 @ 7:24am

Re: Re: :eyes closed:
Australia has some pretty puritanical policies on video games if I recall correctly. Wouldn't be a good fit for me. The Netherlands seems to make press on techdirt every once in a while for being more forward thinking than most in europe about copyright, however, and they're #3 on the list.
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Ed Allen, 8 Mar 2012 @ 7:38am

Re:
Not sued, impeached.

Violating his oath to uphold the Constitution.
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nasch (profile), 8 Mar 2012 @ 7:43am

Re: Re: Re: Re: :eyes closed:
Oh, come on, the snakes here in Australia are not a problem.

You're forgetting that phobias are by definition not rational. He (she?) is not afraid of snakes because of a reasoned decision that they are dangerous, he's just afraid of them*.

* yes, this is a more or less unfounded conclusion based on almost no evidence, but he can always correct me if I'm wrong!
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nasch (profile), 8 Mar 2012 @ 8:01am

Re: Re: Re: Re: Re:
If this is not possible, and all other reasonable options are foreclosed, ACTA does provide that any signatory can withdraw upon notice to the other participants.

In other words, ACTA is binding, because if it conflicts with US law, one of them has got to go. "Not binding" means Congress could pass a law that conflicts with ACTA, and we could still remain an ACTA signatory with no problem. That is the opposite of what you described, namely, "binding".
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Anonymous Coward, 8 Mar 2012 @ 8:27am

Re: Re: Re: Re: Re: Re:
No...US law does not "go". Either ACTA is amended or the US withdraws. The US law remains on the books.

US statutes are law. Provisions in ACTA are not law. Statutes always control.
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Gwiz (profile), 8 Mar 2012 @ 8:51am

Re: Re: Re: Re: OUCH
The letter to Wyden from the DOS backs up Mr. Kirk's public statements that Congress is not bound in any way to enact whatever laws it may choose to do. Mr. Kirk is accurate.

Really? Does that mean Congress can pass a law that abolishes copyrights entirely?

If it's true that ACTA does not bind Congress in any way, than ACTA is not a binding agreement where the US is concerned at all, is it? I'm sure the other signatories would be interested in how they have been duped.
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nasch (profile), 8 Mar 2012 @ 9:11am

Re: Re: Re: Re: Re: Re: Re:
No...US law does not "go". Either ACTA is amended or the US withdraws. The US law remains on the books.

Or the US law is repealed or amended (it "goes").

US statutes are law. Provisions in ACTA are not law. Statutes always control.

'Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, made pursuant to the U.S. Constitution, shall be "the supreme law of the land."'

So are you saying ACTA is not "made pursuant to the US Constitution"?
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John Thacker, 8 Mar 2012 @ 9:40am

Re: Re:
Twice in a row? This is George W. Bush's third term!

Even the health care reform bill was only extending Bush's actions like Medicare Part D.

And Obama has expanded the war in Afghanistan (far more casualties in 3 years than under 7 years of Bush), only wound down Iraq according to Bush's existing timetable and agreements, and fought a new war in Libya.

It's remarkable that people see such a difference between them.

Obama is more similar to Bush than even McCain would have been.
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Anonymous Coward, 8 Mar 2012 @ 9:54am

Why don't americans start a petition to remove Ron Kirk
Just a question... Why haven't americans petitioned the administration to remove Ron Kirk from his appointment to USTR?
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AnonCow, 8 Mar 2012 @ 10:15am

I will not vote for Obama unless ACTA is dismantled.

I guess that buying off Obama is a lot expensive than running a write-in campaign for Chris Dodd for President.
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jupiterkansas (profile), 8 Mar 2012 @ 10:37am

Re: Why don't americans start a petition to remove Ron Kirk
Because he would just be replaced by clone and business would continue as normal.
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jupiterkansas (profile), 8 Mar 2012 @ 10:39am

Hey guys, Ron Kirk says all the stakeholders have been consulted, so everything's just fine.
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mollypitcher (profile), 8 Mar 2012 @ 10:51am

Re: Re: Re: Re: Ron Paul
I guess 1% CONGRESS just wanted the media to run with the story
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mollypitcher (profile), 8 Mar 2012 @ 10:56am

Re: Re: Re: Maybe Romney isn't so bad
Wish I could take credit for it but in the spirit of foregoing piracy, it was actually said by Judge Napolitano on Fox Business.
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Anonymous Coward, 8 Mar 2012 @ 11:21am

Re: Re: Re: Re: Re: Re: Re: Re: Ron Paul
"you have to have force to backup your positions or you will make no headway."

IOW, forget diplomacy, just force them to do what you want.
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crade (profile), 8 Mar 2012 @ 11:25am

Re: Re: Re: Re: Re: Re: Re: Re: Ron Paul
Forcing someone to do what you want is completely seperate from diplomacy. It's possible you have "no other choice" when defending your own free will and freedom When forcing your own will on others, making slaves of them through force. There is always other choices.
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Eponymous Coward (profile), 8 Mar 2012 @ 11:48am

Re:
Ron Paul. That is all.

Granted, he gets marginalized, ignored, and tagged as 'unelectable', but go back and listen to what he's said, over and over, about SOPA/PIPA. He was scathing in his attacks on those bills, and never changed his tune.

At this point it's pretty much a foregone conclusion that the establishment won't let him anywhere near the Republican ticket in November, but I'm tired of people claiming there's not a good choice to be had.
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Anonymous Coward, 8 Mar 2012 @ 11:49am

Re: Maybe Romney isn't so bad
Do you think Romney will roll any of this back? Government has never given power back.
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Eponymous Coward (profile), 8 Mar 2012 @ 11:59am

Re: Re:
Nice double-posted astroturf, meatwhistle.
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Eponymous Coward (profile), 8 Mar 2012 @ 12:27pm

Re: Re: Re: Re: Ron Paul
The problem I see with your reasoning is that you're assuming that the Federal Government is the best place to decide these things. If I'm ever in a position where I have to personally consider the ramifications of an abortion, then the opinions and pontifications of others will mean fuck-all to me. That's one of the most personal decisions anyone will ever have to make, and it's a decision for individuals to make. Barring that possibility, it's a decision that needs to stay as close to home as possible.

Paul's stances make sense to me in that he's for putting much of our lives out of the federal government's reach. At state levels, the representatives are more closely tied to their constituency, and so the true will of the people should be more clearly heard.

I've always heard him loud and clear on abortion, in that he says clearly that he's personally against it, but that it's just not the federal government's job to legislate what people can and cannot do with their own bodies.

Regarding gay rights, I think he addressed what is a core semantic hurdle in the gay marriage argument when he stated that, for purposes of government, hetero or same-sex unions should be termed "civil unions", which suddenly makes all 'marriage' arguments moot. As far as government is concerned, it becomes a matter of contract law, neutered and stripped of religious overtones.

Marriage is more a religious term than anything, and if it suddenly wasn't about some Bible-thumper's hackles being raised about a perversion of marriage, then they'd have to set the religious objection aside and admit that it's about bigotry.

Power corrupts, and what Paul is advocating would be to reduce the corruption by reducing the amount of power held in DC.
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IronM@sk, 8 Mar 2012 @ 12:52pm

Re: Re: Re: :eyes closed:
We could take over the world, but it's just so so hard to get those motherfucking snakes on a motherfucking plane.
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Anonymous Coward, 8 Mar 2012 @ 2:11pm

Re: Re: Re: Re: Re: Re: Re: Re:
"So are you saying ACTA is not "made pursuant to the US Constitution"?"

No.
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AzureSky (profile), 8 Mar 2012 @ 2:58pm

Re: Re:
Ron should run for pres.... dont agree with him 100% but, at least he seems to understand the net better then around 98% of the people in dc, and understands that fucking with the net in the way big content wants to, would be bad not only for the country but the world in general.
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AzureSky (profile), 8 Mar 2012 @ 3:32pm

Re: Re: Re: Re: Re: Ron Paul
hear hear....tho im not a huge RP supporter, I know enough of the man to know hes not a racist or bigot or anti-Semite, hes just very against the federal govt having all the power they have now...

I agree after reading alot about the founding of this nation, it was to be a UNION of STATES, currently we have states that are ruled over by the feds and even if the citzens of a state want to for example legalize pot, they cant really do it because the feds say "no, is bad, no pot for you"

I would welcome states having more power/control of whats allowed in said states.
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AzureSky (profile), 8 Mar 2012 @ 3:52pm

Re: Re: Re: Ron Paul
so so true, look at how they handle the economy

republican: cut taxes on the rich, convence poor its a good thing.

demicrieten: pretend to tax the rich, as you give them more tax loop holes to insure they pay no taxes or even get money back from govt, as you convince the poor your taxing the rich...

they both screw us in the arse and expect us to supply the lube....one just talks nice to us and the other slaps us around...
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Anonymous Coward, 8 Mar 2012 @ 4:58pm

Re: Re: Maybe Romney isn't so bad
I wish that were true. I think if Colbert ran seriously, he'd win. A comedian has more sense than either Dmocrats or Republicans.

Choices: GOP arguing over birth control from 1960's or Obama who's at least made it to the 20th century. Those are pathetic choices.
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Anonymous Coward, 8 Mar 2012 @ 5:09pm

Re: Re:
I have no doubt Ron Paul would not regulate the internet. He would strip of all entittlements which is sorta like ... Somalia - or Katrina the first week. He's got a dark past and he's still a social conservative.

Look at Rand Paul who mirrors his dad. He's been bought since he got into office. Just like the rest of them. Rand Paul can't even explain some of the bills he cosigned because they were given to him.
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Anonymous Coward, 8 Mar 2012 @ 5:20pm

Re: Re: Re: Re: OUCH
The fact that TechDirt is attracting industry shrills is a compliment. For most of us, they are the most direct form of communication into the policy / regulation process that we will ever experience (and sad).

Humor me; What if the internet community chose a third person/party to write in for president? Who? Would there be enough numbers to win?

I know it sounds crazy but if there ever was a viable third party to develop it would have to start "under the radar" until momentum got to big to stop.
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Anonymous Coward, 8 Mar 2012 @ 5:25pm

Re: Re: Re:
Also keep in mind that 50-70% of US troops are private-for-hire and not necessarly US citizens with wives, sisters, kids, etc. living here. They work for whoever is paying them - and that's likely to be corporations since they have the money.
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Anonymous Coward, 8 Mar 2012 @ 5:33pm

Re: Re: Re: Re: Re: Re: Ron Paul
Ron Paul is most definatley a racist. Take a closer look into his past and it's quite troubling. I also can't help but point out his son, Rand Paul who mirrored many of the same things his father does, yet turned into a wall street shrill after he got into office.

If the government is reduced to zero then that's close to what Somalia is. That's not what I want. I think there is a place for government, specifically in the area of consumer protection. What we have now is more like "capitalism gone wild".
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Anonymous Coward, 8 Mar 2012 @ 5:41pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Ron Paul
This is important; one side is saying "bomb, bomb Iran" and the other side is trying to be smarter. That kind of stuff puts internet issues on the back burner. Things get rammed through because of distraction.

Consider arbitration that most banks and other services require agreement with - do they back it up with military force? Diplomacy is more like arbitration.

Who gave the US the entittlement to police the globe and expect everyone to agree with us anyway? If people want kings and queens or a socialist government, let them have it.
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Anonymous Coward, 8 Mar 2012 @ 5:44pm

Re: Re: Ron Paul
all someone has to do is follow Rand Paul to discover the truth. he was sure a disappointment to those that believed in similar messages.
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Anonymous Coward, 8 Mar 2012 @ 5:48pm

Re: But...
If EU doesn't sign it will be a big chink in thier wheel, but ACTA has enough that have signed on to be considered valid ... unless something else happens.
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Anonymous Coward, 8 Mar 2012 @ 5:59pm

Re: Why don't americans start a petition to remove Ron Kirk
Start one. I'll sign.
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Anonymous Coward, 8 Mar 2012 @ 6:01pm

Re:
all the stakeholder's have been consulted - "stakeholder's" just don't include the public anymore.

"Democracy" is an economic term for corporations to operate freely using tax dollars.
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Anonymous Coward, 8 Mar 2012 @ 6:03pm

Re:
The GOP would have been cheaper.
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nasch (profile), 8 Mar 2012 @ 6:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Then you admit it would be superior to federal statute, right?
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Karl (profile), 8 Mar 2012 @ 8:16pm

Re: Re: Correction
Actually, the USA has been in a state of emergency continuously since 1979.

Yeah, but now we're at State of Emergency Level Orange.
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Anonymous Coward, 8 Mar 2012 @ 9:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
If by "it" you are referring to ACTA, the answer is once again "no".

Let me know if I misunderstand your use of "it".
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nasch (profile), 8 Mar 2012 @ 9:48pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So you're asserting (or agreeing) that

1. ACTA is an international agreement
2. ACTA is made pursuant to the Constitution
3. The Constitution's supremacy clause says that the Constitution and international agreements made pursuant to the Constitution are the supreme law of the US
4. Federal statutes are superior to ACTA

What am I missing here?
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Anonymous Coward, 9 Mar 2012 @ 4:17am

Re: Re:
How much money do you get for screwing the nation? As long as no documents have been published, your comments are misleading at best.

When I can see what is being put on paper and legally binding, then I will give you some measure of authority to pontificate on the legal outcome of ACTA.

Until then, you are just another noisy shill speaking loudly to cover up the shenanigans being done behind closed doors.
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Anonymous Coward, 9 Mar 2012 @ 5:48am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The Constitution is superior to everything...period.

Statutes and treaties, as the term treaties has been interpreted for well over two centuries, each share equal dignity so long as they comport with the Constitution.

Executive agreements are neither statutes nor treaties, and, thusly, do not enjoy the status of federal law as is the case with statutes and treaties.

The above are general observations since there are several permutations of the treaty "process". Those that are self-executing immediately assume the same status as federal statutes. Those that require federal legislation in order for them to enter into force do not enjoy the same status unless and until legislation is duly enacted.
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Karl (profile), 9 Mar 2012 @ 7:34am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Executive agreements are neither statutes nor treaties, and, thusly, do not enjoy the status of federal law as is the case with statutes and treaties.

Then you should tell that to the other signatories of ACTA. I'm sure they would have just loved to sign if they had known the U.S. - the prime mover behind the agreement - could just opt out any time it wanted.

You're also ignoring the consequences of the agreement. Theoretically, the U.S. could opt out of ACTA if Congress passed a law that conflicted with it. However, if they did so, they would face international sanctions. This would make Congress loathe to pass such laws; so much so, that it would effectively tie their hands.

There's also the small issue that, as a tradition, executive agreements can only be negotiated if the subject of the agreement falls under the President's Article 2 powers. This agreement does not. It involves copyrights and patents, which fall exclusively under Congress' Article 1 powers.

For example, neither TRIPS nor Berne could be entered into without Congress' approval (and the passing of two acts, the Uruguay Round Agreements Act and the Berne Convention Implementation Act). ACTA is as far-reaching as these in some ways, yet the White House is claiming it can be entered into as a sole executive agreement.
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nasch (profile), 9 Mar 2012 @ 7:34am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I see, the supremacy clause covers only treaties, not other agreements.

The Constitution is superior to everything...period.

Actually treaties are at an equal level with the Constitution if I understand correctly.

I also found this tidbit: "Likewise, a sole-executive agreement can only cover matters within the President's authority or matters in which Congress has delegated authority to the President." It seems to me ACTA covers a bunch of stuff not within the President's authority, so signing this as a sole-executive agreement (rather than an executive-Congressional agreement requiring Congressional approval) should be unconstitutional.

And it does appear that CEAs and sole-executive agreements are at an equal (not inferior) level to federal statute. "American law is that international accords become part of the body of U.S. federal law."
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Anonymous Coward, 9 Mar 2012 @ 8:24am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Treaties, as used in the Constitution, are, generally speaking, at the same level as statutes. The US Constitution is superior to all, and both statutes and treaties must conform to it. Merely as an aside, if treaties were of equal dignity to the Constitution, the effect would be to amend it. The federal government does not have the power to amend the Constitution. That power is reserved to the states.

CEAs and SEAs are quite different from treaties, and do not carry the force of US law over which jurisdiction can be asserted by a US court. By themselves they are inferior to statutes and treaties.

International accords, no matter the form, may become a part of the body of US law, but this is not the proper forum to explore all the possible permutations because they are so numerous. Suffice it to say that only treaties and statutes comprise the corpus of US law.

Importantly, when I use the term statutes it is a general reference to legislation duly enacted by Congress and agency regulations duly enacted under the provisions of the Administrative Procedure Act. Once again, this is not the proper forum to explore this subject simply because it too does not admit to simplistic explanations. Legal treatises are typically what are needed to explain this in a comprehensive manner.
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TaCktiX (profile), 9 Mar 2012 @ 8:55am

Re: ocd
Hear hear to that sentiment. Problem...must...solve...it...
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nasch (profile), 9 Mar 2012 @ 8:59am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Treaties, as used in the Constitution, are, generally speaking, at the same level as statutes. The US Constitution is superior to all, and both statutes and treaties must conform to it.

Article VI, Clause 2 of the Constitution states "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;" It doesn't say the Constitution is supreme and treaties are right below it, it describes their supremacy in the same way.

Yet other texts describe a treaty as equal with an act of Congress (which I assume means an ordinary federal statute), without really mentioning the wording of the supremacy clause. Do you know anything about the discrepancy?
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Matt Bennett, 9 Mar 2012 @ 9:43am

International law DOES NOT trump US law, sorry. Who's going to enforce it?
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Anonymous Coward, 9 Mar 2012 @ 10:33am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
What you are referring to is known as the Supremacy Clause, and its purpose is to define the relatioship between the federal government and state governments. Laws enacted pursuant to Congress' express powers under Article 1 take "supremacy" over all state laws that may conflict with federal laws. Caveat: This is a very general statement since the subject can easily go off in any number of directions depending upon the facts of any particular case and other relevant legal doctrines.
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Anonymous Coward, 9 Mar 2012 @ 10:35am

Re:
In a somewhat roundabout way you have captured the essence of "international law". It is about going along to get along, unless, of course, it is inconvenient to do so.
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ferguson, 13 Mar 2012 @ 7:44am

Re:
Ever here of Ron Paul?
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ferguson, 13 Mar 2012 @ 8:01am

Re: Re: Re:
Comparing libertarians to Somalia is like comparing apples to oranges and either a) shows how uneducated you are or b) shows how misunderstood libertarians are. Either way, its a moronic assertion. It would be like calling Thomas Jefferson the King's servent.
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David Evans (profile), 13 Mar 2012 @ 9:19pm

Re: Re: Ron Paul
I spent some time looking into Paul's & Rand Paul's history, the newsletters and David Duke.

I'm not seeing any evidence of Paul himself being a white supremacist. Maybe I'm just not finding the really bad bits.

Even if that's all true, though, and you take the very worst interpretation of all the evidence presented, I rather seriously doubt that his voting record and libertarian philosophy are some curtain that he's going to throw back at some point to reveal sudden world domination by the KKK.

I like Paul's foreign policy. I like his domestic policy of small federal government. I like the ways he says he's going to accomplish his goals. If he became president, and if he did then suddenly support some obviously racist policy or other, the backlash would be so sudden and so severe, he'd think he'd been teleported out of DC.

As it is, though, I don't hear anyone else even pretending to advocate libertarian philosophies, so I'm still for Paul.
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