Obama Signed the Anti-Counterfeiting Treaty & Ceded Internet Rights to the UN

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Obama signed an Executive Agreement on October 1, 2011, bypassing the Senate, and implementing what is in effect a treaty. At least 26 EU nations and China signed it, with a total of 153 nations so far. Several EU nations protested in the streets against the unpopular treaty. It appears to be too late to do anything about it at this point. The President and some Senators say it does not change existing law protecting our rights, but it will.

Obama signed it without passing it by the Senate by calling it an agreement, which enabled him to ignore U.S. treaty requirements as dictated by our constitution. The Senate has allowed this without much disagreement.

U.S. Constitutional scholars disagree that this is within Executive authority.

Professors Jack Goldsmith and Larry Lessig, questioned the Constitutionality of the executive agreement classification in 2010 –

The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

This treaty/agreement, is SOPA light, and some of the more troubling aspects have been removed. While people were battling PIPA and SOPA, Obama knew full well he had this agreement, floating out there in yet one more deceptive and dictatorial practice.

The governing body will be the UN or a World Trade Organization or something similar and in effect we are ceding our constitutional rights to the world organization. Soros of “one world government” fame must be proud.

There is no system of checks and balances built into this treaty and it is so broad as to eventually force us to change U.S. law to comply with our international obligations.

These are some of the problems with the agreement/treaty –

Since it claims to transfer U.S. law as is to protect U.S. copyright, it also locks in U.S. law. There are changes currently being considered to copyright law in the U.S. that people believe are needed. At the current time, reformers are pushing to consider whether the “inducement,”  aka Grokster decision of the SCOTUS, should be modified by Congress. This is a law which says someone can be induced into infringing or enable infringement. These secondary and tertiary types of infringements are very broad and can easily stifle innovation. Under the terms of this agreement, Congress cannot pass an act to change this decision as it has in the past.

It does change the law in that it takes non-commercial file-sharing and subjects it to commercial scale criminal infringement. It also broadens definitions of secondary liability (inducement) to criminal aiding and abetting.

The law is so broad it could allow lawsuits and a change in U.S. law in cases where certain kinds of patent infringement cases protect against either injunctions or damages and ACTA would require one or the other.

The punishment could far exceed the alleged infringement and there are no safeguards for innocent infringement. ACTA only transfers the strict enforcement of the copyright law into the agreement and ignores protections. Fair sharing and safety valves are left out of the agreement.

The Agreement does not include any limitations on copyright and trademark enforcement, like the provision of fair use, that are an essential part of U.S. law. U.S. law is out and international law is in!

Currently, if a serious world health emergency occurs and a drug company will not provide the drug for a reasonable price, the patent could be broken.Under ACTA, that will be very hard to do, no matter what the emergency.

As you travel, it would allow signatory countries to search your computer for any possible infringement and subject you to their criminal penalties. This has caused concerns for Homeland Security who are afraid of being bogged down with this when they are more concerned about acts of terrorism.

There is no definition for “counterfeit” or “piracy.” Imagine a case in which China decides you have pirated something of theirs – they can sue, have your site removed and your constitutional rights will be gone and subject to the international law. The nature and scope of the law has not been agreed upon by the signers and who knows where this will go.

A clause in the agreement allows governments to shut down websites associated with non-commercial copyright infringement, which was termed “the Pirate Bay killer” in the media has allegedly been removed.

Passing a treaty as an agreement is called policy laundering, which is the use of international treaties, formulated in secrecy so afterwards it is not possible to find out who opted for which part of the treaty. Each person can claim that it was not them who demanded a certain paragraph but that they had to agree to the overall “compromise.”

In the case of our country, since we have a constitution and a balance of powers, policy laundering is the use of an international treaty to justify the passage of controversial legislation within one’s own country. We could be in a position of being forced to accept laws that bypass our constitution because we must be in agreement with international law and the treaty/agreement we signed (also known as leapfrogging and harmonizing).

Freedom of speech, due process, and communication rights guaranteed to us by our constitution are allegedly not affected, however, once we are out of compliance with this treaty/agreement we will most likely be forced to accept aspects that were not passed through Congress or do not agree with our constitution.

Apparently, this has been in the works for at least four years. Both Bush and Obama refused to reveal any details about it for security reasons – it was drafted and passed behind closed doors.

This agreement could affect future trade agreements and the Congress had no say in it whatsoever. It was negotiated by only a few countries but has global consequences. It can provide extreme consequences with no due process.

Sen. Ron Wyden (D-Ore., above left) sent a letter to President Obama in which he declared: It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But regardless of whether the agreement requires changes in U.S. law … the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.

Senator Robert Menendez of NJ says it will not change existing laws which protect our liberties. On April 16, 2010, the member nations of the Anti-Counterfeit Trade Agreement released a public draft of the agreement to date, which can be found at http://www.ustr.gov/webfm_send/1883.  The document states that ACTA will not interfere with a signatory’s ability to respect its citizens’ fundamental rights and liberties, and will be consistent with the World Trade Organization’s agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires World Trade Organization members to enforce copyright and trademark rights and employ specialized law enforcement authorities to investigate and prosecute intellectual property right infringement. 

Senator Dodd said last fall that it is “an important step forward in strengthening international cooperation and enforcement for intellectual property rights.”

“ACTA contains new potential obligations for Internet intermediaries, requiring them to police the Internet and their users, which in turn pose significant concerns for citizens’ privacy, freedom of expression, and fair use rights,” Eva Galperin of the Electronic Frontier Foundation wrote in a blog post last fall.

Many of those who support the U.S. legislation (SOPA and PIPA) are also backing ACTA, including the Motion Picture Association of America.

Read more here: USTR.gov and here and techdirt

You can sign a petition on the WH site objecting here

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