Wyden Traps Feds In Their Own Words: ACTA Explanation Opens Up Big Hole In Cybersecurity Bill

from the which-is-it? dept

Back in March, when the US State Department responded to Ron Wyden's questions about the feds' authority to negotiate and sign onto ACTA without Congressional approval (damn you, Constitution), it made an odd (and rather new) claim: that Congress had actually already approved the executive branch's ability to negotiate and approve international agreements on intellectual property issues. The claim was that the ProIP Act (of 2008) said the newly appointed IP Czar should create a joint strategic plan which, among other things, helps identify how the administration can deal with IP enforcement issues by "working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights."

Yes, because Congress said that the IP Czar should create a strategic plan in which the administration can work with other countries on IP enforcement, the administration now claims that Congress effectively abdicated its powers over international commerce on that issue, despite it never clearly stating that.

Given that strained interpretation, Wyden has noticed that the new cybersecurity bill that the Senate is considering could be broadly interpreted in the same manner to create all sorts of powers for the administration to ignore Congress in crafting international agreements concerning online security. He's now sent the State Department a letter asking for clarification. Here's the key part:

Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?

In other words: Wyden is calling the State Department on its bullshit retroactive interpretation of Pro IP by noting that if they truly believe it, then the new cybersecurity bill would effectively mean Congress gives up its powers to have oversight on any international agreements about cybersecurity -- something the administration almost certainly does not want, since that would spark a debate that would likely hold up approval of the bill. The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill. But that would involve ignoring that the same language is present in both bills.

I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over.

Filed Under: authority, cybersecurity, negotiations, pipa, ron wyden, sopa, treaties

Obama Administration Stalls Treaty To Help The Blind In An Effort To Appease Big Publishers (AKA Campaign Donors)

from the money-first-politics dept

Last week, we wrote about how the US was holding up a treaty to help visually impaired people be able to access more works, in large part because publishers are somehow offended that the public might want to take back some of their fair use rights (which the publishers unfortunately claim is "taking away" something from them). As more and more details come out, it's become clear that while most of the countries involved in the negotiations really want this treaty -- which has been in discussion for nearly 20 years -- to be put in place, there are two major stumbling blocks: the EU Commission and the US. Not surprisingly, these were the two biggest supporters of ACTA as well. As with ACTA, the EU Parliament is at odds with the EU Commission on this and is in support of a treaty, but the Commission is trying to put all sorts of "unreasonable restrictions" on the agreement, and the US is still fighting against the idea of calling this a "treaty."

The end result is that, rather than finalizing things at the WIPO gathering, the US's ability to drag the whole process out means that nothing will be decided until after the Presidential election. And that's by design:

This is really kicking the can down the road -- in this case, past Obama's first term in office. After four years, Obama can't overcome opposition from a handful of mostly foreign owned publishers to support a treaty for blind people. In many respects, this is a money in politics story. If blind people were financing his campaign, they would have had a treaty a year ago. The Obama administration wants the decision on the treaty delayed until the election so it will not interfere with its campaign fundraising from publishers, and so it will not suffer bad publicity for opposing the treaty, before the election.

The whole thing is pretty shameful, and yet another display of how money corrupts politics... and how copyright helps in that process.

Filed Under: blind, campaigns, copyright, obama administration, publishers, treaties, visually impaired, wipo

Darrell Issa Posts Text Of 'Unconstitutional' ACTA For Open Feedback; Something USTR Never Did

from the well-look-at-that dept

We've been really impressed (though we can see where it needs improvements in its next version) with the "Madison" platform that Rep. Darrell Issa put up to allow for open feedback and comments concerning the OPEN Act. And it appears he's not done using that platform, either. He's now posted the text of ACTA to the same platform to ask for feedback and comments. It comes with an initial statement showing that he's very concerned about the nature of ACTA (I believe this is the first time Issa has spoken out against ACTA:

Stopping SOPA and PIPA was a historic victory for digital citizens, but ACTA potentially poses a similar threat to the global Internet community. While the agreement’s stated goal of strengthening intellectual property rights is one all should support, it does so by undermining individual privacy rights and by empowering an unaccountable enforcement bureaucracy. And just like SOPA and PIPA, ACTA was crafted without input from citizens and key stakeholders in a secretive, closed-door process.

Worse, ACTA appears to be an unconstitutional power grab started by President George W. Bush and completed by President Barack Obama - despite the White House’s January 14 criticism of legislative solutions that harm the Internet and erode individual rights. The Constitution gives Congress the power to pass intellectual property legislation - like SOPA and PIPA - and gives the Senate the power to ratify treaties. But the Obama Administration maintains that ACTA is not even a treaty, justifying the exclusion of both American citizens and their elected representatives. It is a practice Vice President Joe Biden decried as a U.S. Senator.

Closed doesn’t cut it. We opened up ACTA in Madison so you can sign up, speak out and collaborate to build a better “treaty.”

For all of the USTR's ridiculous claims of unprecedented transparency, why couldn't it have done something like this before ACTA was "finalized"? The answer is that there's no reason at all. Instead, the USTR released the "final" draft of ACTA as a done deal, and any public comment was meaningless, because the document was not open for any additional changes.

Which raises another unfortunate point. The Obama administration has already signed ACTA. Hopefully this means that Congress is actually going to get serious about challenging the administration on its claimed authority to sign and ratify ACTA without Congress' approval. Until now, the only Congressional official who had questioned that right publicly was Senator Wyden -- though, we've heard of a few others who have sent pointed questions to the administration about its claims. With Issa going public and directly questioning this attempt to deny Congress the right to review ACTA -- despite the Executive branch not having the right to make copyright or patent law -- perhaps Congress will finally step up and make it clear that it won't let the President simply ignore Congress' mandate over both IP law and international treaties.

Also, when do we get the Madison'ed version of TPP?

Filed Under: acta, darrell issa, discussion, madison, transparency, treaties, ustr

Australian Trade Minister Says That Releasing IP Enforcement TPP Treaty Text Would Be 'Problematic'

from the for-whom? dept

We've pointed out how the Trans-Pacific Partnership Agreement (TPP) is shaping up to be the son of ACTA, but worse. And one area where negotiators seem to be following the ACTA blueprint is on near total secrecy about the negotiations (even as some are leaking). This is really stunningly stupid. As many people pointed out when it came to ACTA, the excessive and unprecedented levels of secrecy really gave critics a key point to focus on that generated tremendous interest in what would otherwise have been seen as a boring trade agreement.

And yet, TPP negotiators are doing the exact same thing. A few years ago, you may recall, that US Trade Rep Ron Kirk dismissed calls for transparency in ACTA negotiations by claiming that it would be problematic in that some of the participants might walk away from the table if they had to tell the citizens they represented what they were actually negotiating. Of course, later in the negotiations, when some countries pushed for transparency and openness, it became clear that it was the US -- who really kicked off ACTA -- that was the driving force behind the unprecedented level of secrecy.

Now, with TPP, it appears they're making the same totally unsubstantiated claims. Glyn Moody points us to a letter sent by Australian Trade Minister Craig Emerson, which pays lip service to "transparency," but when it comes down to the key question of opening up what's being negotiated, says that's not really possible:

Your suggestion that draft negotiating text and position papers should be made public is understandable but problematic. First, this would only be possible if all parties agreed. Many negotiating parties would consider releasing the text as a breach of confidence. Second, negotiating text really has no status until it is agreed by all parties. I am not convinced that exposing contested text, potentially including ambit claims, would assist informed public debate on the issues.

Almost none of that makes sense. First, the claim that it would only be possible if all parties agree should not be a stumbling block. The simple response is that all parties should agree. This is a treaty that will likely have significant impact on people in all these countries. Why shouldn't it be discussed publicly? The "breach of confidence" claim is meaningless for the same reasons. These are about laws and enforcement that will impact citizens. There shouldn't be anything "in confidence" going on here. That the document has "no status" until it's agreed upon certainly sounds like "hey, please don't complain about the document until it's all done and we've agreed to what's in it." Talk about missing the point. The reason people want the negotiations to be open is to stop bad and damaging things from being in that "agreed" upon resolution.

Finally, the last claim is the most ridiculous. How can a more informed public not assist in informed public debate? Seriously. It takes amazing hubris to try to claim that keeping a document secret leads to greater "informed public debate" on the subject.

Filed Under: australia, tpp, transparency, treaties

Why Is A Treaty For Letting The Blind Have Access To Books Too Difficult, But ACTA Is Fine?

from the questions,-questions dept

We've pointed out the hypocrisy of the industry folks who are eagerly supporting the expansion of copyright via ACTA, but who are against a few very limited simple exceptions to copyright for the blind in a new WIPO treaty. However, in defending this position, a European Union Commissioner, Michel Barnier, has explained to the European Blind Union, that doing a treaty is just too hard, and it's much easier to just do a much more limited "joint recommendation," which would be a lot weaker. As KEI's Jamie Love points out in the link above, it seems odd here that the EU is admitting that it's too difficult to bother creating new treaties around copyright... at the same time it's heavily involved in ACTA and a number of other copyright treaties. Apparently it's only worth undertaking that kind of effort when it ratchets copyright up in favor of industry. The blind? Eh. Not worth the effort...

Filed Under: acta, blind, copyright, eu, treaties

Wikileaks Reveals That The US Won't Comply With Treaty Obligations Concerning Investigations Into CIA Rendition

from the moral-high-ground? dept

This is hardly a surprise, but it's increasingly being confirmed by the various State Department cable leaks that the US Justice Department is failing to comply with its treaty obligations with other countries in their investigations into US (mainly CIA) "rendition" operations, where they take people captured elsewhere and find some place to torture them. Related to this, of course, is that US diplomats worked overtime to suppress any investigations, and put strong diplomatic pressure on countries not to investigate. And yet, some still did, and the US simply refused to cooperate, despite requirements under various treaties. This is, of course, nothing new. The US has a history of ignoring treaties when it doesn't like what they say. This is seriously going to come back to haunt the US. It's amazing how upset the US gets when others ignore treaty provisions, but it does the same all too often.

Filed Under: cia, rendition, treaties, wikileaks
Companies: wikileaks

MPAA, Pharma Demanding US Push Other Countries To Have Significantly More Draconian IP Laws Than The US

from the how-nice-of-them dept

The constant push to expand government granted monopoly privileges for those who benefit most from them never ceases. It seems like every other day or so, we hear about US lobbyists for those industries pushing for greater legal support around the globe. The latest is with the Trans-Pacific Partnership (TPP) Agreement that the USTR is currently negotiating. The MPAA wrote a letter, which was co-signed by the major pharmaceutical trade group and the US Chamber of Commerce, pushing for the agreement to include rules that go well beyond current US copyright and patent laws. This, of course, is part of the standard game of leapfrog that the industry plays: get other countries to push stricter laws, then complain that the US is not living up to "international obligations," and get them to bump up their own laws and continue the cycle. In fact, the Obama administration has apparently made it clear that they will not even consider allowing intellectual property rules to be decreased as a part of this agreement and will only look to ratchet up protections. This is, as KEI points out, even though many of the participants in the negotiations are developing nations, who would be greatly helped with lower intellectual property standards, and previous US administration have been more than happy to agree to such agreements:

After being told the Obama Administration would not consider anything that lowered IPR norms in the TPP negotiations, and only measures that raised norms, KEI reminded USTR has the Clinton and Bush Administration both were willing to lower IPR norms, when they were persuaded it was appropriate. This included:

• President Clinton's December 1, 1999 speech to the WTO endorsing new changes in U.S. trade policy to address concerns over access to medicines.
• President Clinton's Executive Order 13155 of May 10, 2000, concerning Access to HIV/AIDS Pharmaceuticals and Medical Technologies.
• President Bush's decision to agree to the November 14, 2001 Doha Declaration on TRIPS and Public Health.
• President Bush's decision to accept the waiver to 31.f of the TRIPS agreement on 30 August 2003.
• President Bush's July 16, 2004 agreement between USTR and Canada to modify NAFTA to allow exports of medicines under compulsory licenses.
• President Bush's May 10, 2007 agreement on the bipartisan New Trade Policy, which eliminated patent extensions, eliminated linkage of drug registration and patents, and relaxed test data protection for the Peru Free Trade Agreement.

For the Obama Administration to claim that it can only harmonize upwards is really disappointing, given the promises that Obama made during his presidential campaign.

Filed Under: copyright, tpp, treaties
Companies: chamber of commerce, mpaa, phrma

WIPO Worried About Why Countries Feel They Needed ACTA Process Outside Of WIPO

from the routing-around dept

Earlier this year, in discussing ACTA, some observers noted that it was quite telling that those involved in the ACTA negotiations were clearly routing around WIPO, the organization that was already in place to deal with those kinds of discussions. The explanation was that the negotiators were upset that the copyright holders no longer had full control over the WIPO agenda, and WIPO had dared to let consumer rights groups into the discussion. So the purpose of ACTA was to get around having to include such groups. It appears that WIPO, itself, is quite concerned about what's going on with ACTA, suggesting that he's worried that these countries no longer believe the WIPO process works.

"A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of 'international' cooperation," Gurry told Intellectual Property Watch in an interview last week. "That's the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside."

I'd argue that he's being a bit too hard on himself. It's not that the WIPO process doesn't work (though, I do have some problems with the WIPO process as well), but that the copyright holders were upset that they no longer had near unilateral control over the process. It wasn't that they felt WIPO couldn't address the issues, but that it would be much harder to get them addressed in the way industry folks wanted.

As part of the discussion, he also pointed to the recent fight over helping the blind access more content through exceptions in copyright law -- an WIPO process that has been stymied by industry interests who don't like to see any new exceptions applied to copyright. To WIPO, that gridlock on such an obviously reasonable solution is worrying:

The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. "Can anyone not subscribe to that principle, as a general rule?" he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.

"Can anyone stand up and say that they should not have more [access], that we should not do something about it?" It is such an obvious question, he said "but we are not getting an agreement" although the last meeting showed genuine involvement of member countries.

If anything, what this demonstrates is not any problems with the WIPO process, but a group of organizations so used to getting their way on copyright issues so totally and completely, that they're not used to facing people questioning the actual impact of the regulations and international agreements they push. When that happened, they decided to take their ball and go home to play with only their friends. That's what ACTA is really about.

Filed Under: acta, negotiations, treaties, wipo

White House Actually Goes Against Hollywood, Supports Copyright Exemptions For Visually Impaired

from the didn't-expect-that dept

With the Obama White House appearing thoroughly convinced of the entertainment industry's views on "piracy," it's a bit surprising to hear that it has come out in favor of a proposed treaty to create copyright exceptions for the visually impaired. This is the WIPO treaty that we recently wrote about, noting that all those organizations pushing for ACTA were very much against this particular treaty. The Commerce Department even responded to the entertainment industry by saying that nothing about the treaty appears to "weaken" international copyright law, as they fear.

Unfortunately, the details suggest a bit of horse trading may be going on. The report suggests that the Commerce Department is saying that it will support this particular treaty, but it will seek to strengthen copyright law pretty much everywhere else (by which it means full support for ACTA). There's been a near universal alignment on these two treaties: those in favor of the WIPO one are against ACTA, and those in favor of ACTA are against this treaty. Reading a bit between the lines, it looks like the Obama White House is saying it will support both treaties. While the WIPO treaty is important, it's a much smaller deal than the ACTA treaty. So, even if the White House is supporting it, it looks like it may just be doing so to remove some complaints on ACTA, which is the big problem.

Filed Under: copyright, obama, treaties, visually impaired, white house, wipo

Funny How Those In Favor Of ACTA Are Against Treaty Providing More Access To Content For Vision Impaired

from the must-strengthen-copyright-at-all-costs dept

It seems pretty bizarre that companies and industry organizations would be against helping those with reading disabilities or vision impairment -- but that's exactly what you get in the discussion over creating some loopholes in copyright law to make it easier to reformat content to help those who would have difficulties reading it otherwise. Their concern, of course, is anything that can be seen as weakening copyright law. As we've noted in the past, there's never really been any weakening of copyright law... ever. The only exception I can think of is when the US officially established that government documents could not be covered by copyright. But every other change has only strengthened it -- so perhaps it's no surprise that the usual suspects, including the MPAA and the RIAA are upset about this, claiming that this WIPO treaty on this subject would "begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms."

Now, that's funny, because you could pretty much say that ACTA is doing the same thing... and yet these same groups are strongly in favor of ACTA, which would also be at odds with existing, longstanding and well-settled norms." Funny how their view changes completely when discussing treaties that would beef up copyright law vs. those that would create important and useful loopholes in it.

Filed Under: acta, copyright, treaties, vision impaired