How ACTA Exports Worst Of US Copyright Law Without Corresponding Exceptions

from the despite-the-assurances dept

All along defenders of ACTA have insisted that it will not change US copyright law. In fact, the argue that, since it's an executive agreement and not a treaty, it cannot change US copyright law. However, the devil is always in the details, and the details are not good. Earlier this year, we noted that the real problems were not in what was included in ACTA, but what was left out. That is, ACTA technically includes stuff that is (mostly) already in copyright law... but leaves out all sorts of exceptions and consumer protections. On top of that, some of what it seeks to do is to "lock in" areas of copyright law that are still very much in flux -- such as aspects like "inducement" that have only recently been determined by case law, but have not been discussed or reviewed in Congress itself. ACTA would prevent such changes, because if Congress later decides -- for example -- that it did not intend for there to be an "inducement" standard for copyright infringement (as the courts have created) it would not be able to do so because of ACTA.

With the official draft of ACTA finally released, Jonathan Band alerts us to a filing (which I'm guessing he played a large role in drafting) from the Library Copyright Alliance (along with CCIA, CEA, NetCoalition, EFF, Public Knowledge and a few other groups) that carefully and with great detail highlights the many serious problems with the released ACTA draft, detailing how it is not, in fact, in line with US copyright law, and how at different points it seeks to lock in areas of the law that are still very much in flux. You should read the whole thing:
It notes that the "official" version leaves out what countries are supporting what -- and points out that there are certainly parts of the text that are still up for debate that clearly go against current US copyright law. However, with many of those, the letter gives the USTR the benefit of the doubt that it will not agree to those phrases that are clearly outside the scope of US copyright law. Instead, it focuses on the parts of the released text that do not appear to be in dispute or negotiation any more, but which still appear to go against current US copyright law:
These comments will focus on the language in the Consolidated Text that we believe the U.S. government has endorsed. While the United States probably could comply with these provisions of the Consolidated Text without amending the U.S. Copyright Act, these provisions are inconsistent with U.S. law in several significant, troubling respects. The common thread of these inconsistencies is that the Consolidated Text does not reflect the balance in U.S. copyright law. This lack of balance is at odds with the Obama Administration's policy concerning balanced international copyright law
The biggest concern comes in the form of statutory damages. Again, the text of ACTA does not currently go beyond US copyright law, but it does tie the hands of Congress on an issue that has constantly been debated (and over which there are some ongoing lawsuits challenging the legitimacy of current statutory rates). Locking those in would be a massive problem. When you then combine that with a lack of prominent exceptions to copyright law -- such as fair use (which is in US law, but not elsewhere, and is not required by ACTA), you create a situation that could present massive liability problems to US companies operating abroad:
Although the existing statutory damages framework has a chilling effect on innovation and follow-on creativity, its negative impact in the U.S. is somewhat mitigated by the existence of strong exceptions such as the fair use doctrine. Other countries, however, do not have these exceptions. And the U.S. in ACTA has not demanded the adoption of these exceptions. In other words, the U.S. seeks the export of our strong enforcement mechanisms but not our strong exceptions.

This asymmetric export of our laws could be particularly harmful to U.S. Internet companies as they attempt to expand their operations overseas. For example, U.S. courts have treated the copying of copyrighted material by search engines as permitted by fair use. In contrast, courts in Europe have found Google and other search engines liable for copyright infringement for engaging in similar activities. If ACTA is adopted, and European countries enact statutory damages, the potential exposure of U.S. search engines will increase exponentially for conduct considered lawful in the U.S. They will be liable not just for the actual damages they cause, but the level of damages set by statute. Under current U.S. law, if a company is held liable under a direct or secondary liability theory for infringements by thousands of consumers, the resulting damages (up to $150,000 multiplied by thousands of works deemed infringing) could easily bankrupt the company. Raising the possibility of similar, ruinous damages for conduct considered lawful in the U.S. would simply hinder U.S. businesses' ability to operate abroad.
Along those lines, the letter notes that US law contains the right to decrease statutory awards in the case of "innocent infringement." Once again, this does not show up in ACTA, so we are, yet again, exporting the draconian parts of copyright law, without any of the important strong exceptions.

The letter also highlights the attempt in ACTA to not just lock in third party liability when it comes to copyright (a concept that has been determined by case law, but not in Congress -- and, in fact, was rejected by Congress when a law creating such liability was proposed a few years ago), but also appears to redefine third party liability, by expanding the definition to cover three different things, when current US law does not do that:
There are numerous problems with these two clauses of footnote 47. First, they suggest that inducement is a different test from contributory infringement; that is, they imply that there are three theories for third party infringement under copyright -- vicarious liability, inducement, and contributory infringement. However, Grokster makes clear that inducement is not separate and distinct from contributory infringement.
And, of course, once again, it looks like in the issue of third party liability, ACTA makes it much stronger and removes the balance found in US copyright law:
Finally, article 2.18.3 lacks the balance present in U.S. third party liability law. Article 2.18.3 makes third party liability mandatory. In contrast, exceptions to such third party liability are only permissive: "the application of third party liability may include consideration of exceptions or limitations...."
Notice the pattern? This does a variety of problematic things. First, it creates serious problems abroad for all other countries that sign onto ACTA, giving them all the limitations of copyright law without the important exceptions (which, it's been shown, are more important when it comes to economic activity). Second, should the US ever adapt its own copyright law, which has been going on pretty much non-stop, it locks in the limitations, but not the exceptions. That means that US law will only be able to take away the exceptions, but not ratchet down some of the problematic aspects of copyright law. That's downright scary.

And, of course, the rationale for all of this? It's based on studies that our own government now says were bogus.

It's even worse when you realize that if the point of copyright law is to promote the progress of science and the useful arts and there's no real evidence of a causal link between any particular copyright policy and greater societal progress, then it makes no sense at all to harmonize copyright laws in lockstep. Instead, it makes sense to do the exact opposite. It makes sense to let different countries experiment with different types of copyright laws so that we can actually build real evidence for what works and what does not work. Locking in a particular set of laws across much of the developed world, without any evidence as the basis is downright scary. It's faith-based policy making, pushed almost entirely by a small group of businesses who stand to benefit. It's an incredible shame that the USTR seems totally taken in by them.


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    Crosbie Fitch (profile), May 5th, 2010 @ 8:55am

    The point of copyright law?

    No, the "point of copyright law is" NOT "to promote the progress of science and the useful arts".

    You're probably referring to the clause in the US Constitution empowering congress to secure the individual's exclusive right to their writings and designs.

    The point of copyright is to enrich the publishing industry at the expense of the public's cultural liberty, i.e. creating a reproduction monopoly by suspending the public's natural right to copy, to share and build upon their own culture.

     

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      Christopher Weigel (profile), May 5th, 2010 @ 10:11am

      Re: The point of copyright law?

      And the original point of that reproduction monopoly (since abused considerably, I'll grant) was to...

      Promote the progress of science, the useful arts, etc.

       

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        Crosbie Fitch (profile), May 5th, 2010 @ 11:23am

        Re: Re: The point of copyright law?

        This was the pretext used to import the monopolies of copyright and patent from the old world, that because they allegedly 'promoted progress' they must therefore be the mechanisms of securing authors' and inventors' exclusive right to their writings and designs that the Constitution had empowered Congress to legislate.

        The thing is the Constitution hadn't empowered Congress to grant privileges, it had only empowered it to secure the individual's exclusive right - the right that could be recognised as naturally possessed by an individual by the Constitution.

        But then, who cared? Who would raise a fuss, given nearly everyone concerned at the time either wanted the privileges granted or had zero influence?

        Jefferson suggested the granting of those monopolies be included in an amendment, but Madison no doubt realised it was better not to draw attention to the fact that copyright and patent had no constitutional sanction, to simply legislate them anyway - allowing the inference they were the 'exclusive right' referred to in the Constitution.

        It is the securing of the individual's exclusive right that promotes progress (why bother setting pen to paper if your writings or designs can be stolen?).

        Constraints on cultural and technological exchange impede progress, with the brake of monopoly rents gifted to the privileged industrialists (lobbyists).

        So no, the point of a monopoly is to reward the one the monopoly is granted to (and for favours to be returned to those granting them). Those granting and granted monopolies will say anything, invent any pretext, pretend they encourage learning, or cure disease, even that they promote competition and creativity. Ask who pays for the lucrative reward of a monopoly. Ask those without the power to grant them, those who either don't have them or who are paid a pittance to surrender them, and especially those who fall foul of them, those who've had their folk songs, folk tales, and folk lore, denied to them. Those who've lost their liberty to their own culture, knowledge, and technology, those prohibited from sharing it or exchanging their labour upon it. A monopoly is not without cost, it's just that the cost is borne by everyone else, a cost in liberty, in lost opportunity.

         

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    Richard (profile), May 5th, 2010 @ 9:20am

    No, the "point of copyright law is" NOT "to promote the progress of science and the useful arts".

    You're probably referring to the clause in the US Constitution empowering congress to secure the individual's exclusive right to their writings and designs.


    and you have to remember that the people who wrote that constitution thought slavery was OK...

     

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      RD, May 5th, 2010 @ 9:36am

      Re:

      "and you have to remember that the people who wrote that constitution thought slavery was OK..."

      And the people writing/adding/extending copyright law since then are better in what way exactly? There is more corruption and graft now than ever before. So by that reasoning, we shouldnt support the current lawmakers and their changes to the law? Hmmm wait a tick...you might actually be on to something here...

       

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        Richard (profile), May 6th, 2010 @ 6:47am

        Re: Re:

        And the people writing/adding/extending copyright law since then are better in what way exactly?

        In exactly no way. It started bad - and then went down from there!

         

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    C.T., May 5th, 2010 @ 9:36am

    Congressional statutes take precedence over executive agreements

    ACTA would prevent such changes, because if Congress later decides -- for example -- that it did not intend for there to be an "inducement" standard for copyright infringement (as the courts have created) it would not be able to do so because of ACTA.


    This is false. Congress could certainly pass legislation that conflicts with obligations in ACTA, and any such subsequent amendments to US law would take precedence over ACTA. ACTA is not, and will not be, independently enforceable. It is true that Congress would certainly take ACTA into account in deciding whether to amend portions of US Copyright law, and might be discouraged from passing laws that run counter to the spirit of US international agreements. However, your assertion that ACTA completely ties Congress' hands and locks in current laws perpetually is yet more hysteria grounded misstatements of law.

     

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      Christopher Weigel (profile), May 5th, 2010 @ 10:10am

      Re: Congressional statutes take precedence over executive agreements

      The point is that it hands opponents to such an amendment (such as, I suspect, yourself) another argument to throw out there.

      When it's as difficult as it currently is to have a rational discussion on copyright, someone shouting "buh, buh... we have a treaty obligation" can very well kill the entire debate.

      Which is why it prevents Congress from changing the law. It makes it an even more uphill battle to get a reasonable copyright standard.

       

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      Mike Masnick (profile), May 5th, 2010 @ 10:33am

      Re: Congressional statutes take precedence over executive agreements

      This is false. Congress could certainly pass legislation that conflicts with obligations in ACTA, and any such subsequent amendments to US law would take precedence over ACTA. ACTA is not, and will not be, independently enforceable.

      Oh please. You know well that the second anyone tried to amend copyright law in such a manner the lobbyists that you work with would start screaming "international obligations!!" and start throwing out Berne/TRIPS/WIPO/ACTA etc.

      Hell, just talk to your Congressional rep about changing copyright law either to reduce the term or to move back to a registration requirement and they immediately point out: "under our international obligations, we cannot."

       

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        Anonymous Coward, May 5th, 2010 @ 10:56am

        Re: Re: Congressional statutes take precedence over executive agreements

        The comment by "C.T." is correct. Your response is more in the nature of a "moral panic" that does nothing to address his comment in a substantive manner.

        I realize that you and others are not particularly enamored with ACTA, but, quite frankly, for all its perceived warts and blemishes there is nothing in the proposed "Agreement" (it is not a "Treaty") that to my knowledge in any manner binds the hands of Congress and converts the present day Title 17 into an immutable, un-amenable body of statutory law.

        Anent the document to which you provided a link, in my view it is purely an advocacy piece, attempting to create the specter of a a "mountain" that is even samller, much smaller, than a mere "mole hill". I daresay even "Chicken Little" would be reluctant to embrace it.

         

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          Michael, May 5th, 2010 @ 10:58am

          Re: Re: Re: Congressional statutes take precedence over executive agreements

          If it does not impede the creation or changing of laws that are in conflict with the agreement, why bother creating it in the first place?

           

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          Mike Masnick (profile), May 5th, 2010 @ 11:47am

          Re: Re: Re: Congressional statutes take precedence over executive agreements

          The comment by "C.T." is correct. Your response is more in the nature of a "moral panic" that does nothing to address his comment in a substantive manner.

          Wait, are you honestly suggesting that Congress and the lobbyists do not regularly make the claim of "international obligations" and that I am making that up as a moral panic? Really?

          Do you want to take that statement back before I prove you so wrong that you'll be embarrassed to comment here again.

          I'm going to assume you misspoke, because you cannot be serious.

          I realize that you and others are not particularly enamored with ACTA, but, quite frankly, for all its perceived warts and blemishes there is nothing in the proposed "Agreement" (it is not a "Treaty") that to my knowledge in any manner binds the hands of Congress and converts the present day Title 17 into an immutable, un-amenable body of statutory law.

          (1) We have discussed, in great detail, the fact that there is no real distinction between an executive agreement and a treaty -- other than that the former is probably an unconstitutional method of approving a treaty without getting the Senate's approval. You have done nothing to show otherwise.

          (2) There are many things in the agreement that most certainly DO bind Congress for all intents and purposes, because of what is in ACTA. As pointed out -- though bizarrely denied by you -- Congress is repeatedly told by the lobbyists you so admire and suck up to at times -- that it cannot make changes to copyright law, due to such agreements.

          (3) If it does not bind Congress, then what is the point of ACTA and the language in the document?

          Anent the document to which you provided a link, in my view it is purely an advocacy piece, attempting to create the specter of a a "mountain" that is even samller, much smaller, than a mere "mole hill". I daresay even "Chicken Little" would be reluctant to embrace it.

          Said by someone whose entire career was built off of abusing intellectual property law for his own monetary advantage.

          I'm sorry, but when a large group of very respected organizations put together a document like this, to claim that no one would embrace it is beyond silly. It's blatantly wrong.

          I find it amusing, of course, that you do not make a single factual point to counter anything in the document or in my statements. Your entire comment is your (anonymous -- of course -- despite your insistence in the past that you would sign your name on comments here) baseless opinion.

           

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            Anonymous Coward, May 5th, 2010 @ 2:13pm

            Re: Re: Re: Re: Congressional statutes take precedence over executive agreements

            Mea culpa. I could have sworn you did not respond in a substantive manner to CT's comment.

            Hold on a minute while I read his comment and your response.

            I am back. Looks like my mea culpa was made in error. You did not provide him a substantive response. In fact, not only was your comment not substantive, but it seems you could not resist the temptation to once more question the motives of those who may happen to disagree with you regarding matters of law. Perhaps you know who CT is and with whom he regularly deals to the extent you can speak with authority, but in the event you do not then I simply do not see how your talking about his working with lobbyists is anything but a disingenuous and unwarranted put down.

            I never realized I was an "abuser" of the law. You are indeed a perceptive individual, albeit one who regularly makes comments such as this because, I can only surmise, it makes you feel good to demean the messenger while ignoring the message.

            BTW, I did not say other groups would not embrace it. I said it was unlikely that "Chicken Little" would do so.

            As for counterpoints to the paper you find so compelling, I barely got by the portion where the distinction between treaties and agreements was casually tossed aside when it became clear that this was an opinion piece and not a substantive analysis of law. How can one counter "it might", "perhaps", "it is possible", etc. since words and phrases such as these are nothing more than weasel words? Perhaps a substantive response would comprise "it might not", "perhaps not", it is possibly not", etc.

            I am quite pleased that I amuse you. If I may be so bold as to suggest, once you are over your amusement fit you might want to actually read and try to understand comments that do not fit neatly within your perception of substantive law.

             

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              Mike Masnick (profile), May 6th, 2010 @ 12:54am

              Re: Re: Re: Re: Re: Congressional statutes take precedence over executive agreements

              I am back. Looks like my mea culpa was made in error. You did not provide him a substantive response.

              A comment that you disagree with is not the same thing as a comment that is not substantive. I explained why CT was wrong. You did nothing to explain why I was wrong, other than talk pedantically.

               

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                Anonymous Coward, May 6th, 2010 @ 7:25am

                Re: Re: Re: Re: Re: Re: Congressional statutes take precedence over executive agreements

                You made an unqualified statement that ACTA would tie the hands of future Congresses. CT pointed out that this statement was not correct as a matter of law.

                Your rejoinder did not traverse his point of law. Hence, it is difficult, if not impossible, to see how your rejoinder can by any reasonable definition be viewed as a substantive traversal.

                No one doubts that proponents of amendments to law will try to use whatever means they may have at hand to try and "sell" proposed legistation to other members of Congress. This does not, however, lend any support to your response to the point made by CT, i.e., that a trade agreement, as opposed to a treaty, is non-binding as a matter of US substantive law.

                The point has been made repeatedly that a fully ratified treaty by the US Senate is entitled to the full force and effect of law so long as it comports with the US Constitution. A trade agreement by the executive brand of our government enjoys no such entitlement. Hence, the comment made by CT was correct as a matter of substantive law.

                 

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          Mike Masnick (profile), May 5th, 2010 @ 12:24pm

          Re: Re: Re: Congressional statutes take precedence over executive agreements

          I realize that you and others are not particularly enamored with ACTA, but, quite frankly, for all its perceived warts and blemishes there is nothing in the proposed "Agreement" (it is not a "Treaty") that to my knowledge in any manner binds the hands of Congress and converts the present day Title 17 into an immutable, un-amenable body of statutory law.

          Btw, I also find it worth mentioning that the same commenter who wrote this paragraph above, just a few days ago, was insisting that Canada needed to changes its copyright laws to be in agreement with "international obligations."

          The hypocrisy of blind copyright supporters knows no bounds.

           

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            Anonymous Coward, May 5th, 2010 @ 2:26pm

            Re: Re: Re: Re: Congressional statutes take precedence over executive agreements

            At the time I originally commented it was my understanding that Canada had ratified one or more of the various international treaties pertinent to the subject matter of the article. A later commenter noted that while Canada has signed such treaties, they as yet remain unratified. I found the information quite useful, and after some research discovered that he was correct.

            The issues with Canada, I now understand, are generally associated with its failure to ratify the treaties (not an unusual circumstance...after all, look at the US and Berne).

            BTW, if I recall correctly I believe I mentioned that Canada would be better served by expanding its current counterpart of "fair use" to more closely comport with the US standard. Clearly I am inclined to force Canadian law to take an even more draconian posture than is presently the case.

             

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      Michael, May 5th, 2010 @ 10:57am

      Re: Congressional statutes take precedence over executive agreements

      If it does not impede the creation or changing of laws that are in conflict with the agreement, why bother creating it in the first place?

      You are suggesting that this is a toothless agreement that will not impact our congressional decisions, but somehow think it is really important we agree to it. If it cannot be used by a country to prevent conflicting legislation, it was a complete waste of time to draft.

       

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    Crosbie Fitch (profile), May 5th, 2010 @ 2:22pm

    But is ACTA ultimately good?

    ACTA would appear to be an attempt to harmonise copyright and patent legislation - reinforcing it at the same time.

    Perhaps it's driven in pursuit of cheaper, more predictable, more easily manageable legislation?

    It certainly appears to result in the ability of publishing corporations to assume control/ownership of the Internet - given they'll have the power to disconnect anyone (with extreme prejudice aka on suspicion/accusation).

    However, this harmonised legislation may be as fragile as it is strong, and that's because it's a legislative monoculture. One flaw stressed and the entire edifice shatters.

    And on the other side of the looking glass it unites the global online population against the same cultural oppressor, a single instrument of injustice.

    I'm still optimistic that ACTA hastens copyright's abolition, which is what I mean by 'ultimately good'. Though that really means we should get on with the business of formulating the law that must fill the vacuum...

     

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      Anonymous Coward, May 5th, 2010 @ 2:29pm

      Re: But is ACTA ultimately good?

      "Though that really means we should get on with the business of formulating the law that must fill the vacuum..."

      What vacuum would have to be filled?

       

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        Crosbie Fitch (profile), May 5th, 2010 @ 2:43pm

        Re: Re: But is ACTA ultimately good?

        The vacuum would be the need to secure the natural exclusive rights of the individual, i.e. to recognise intellectual works as the property of the creator/possessor, to be secured from theft, and remedies provided.

        There's also the need to recognise the natural right to truth, as embodied by what are known as moral rights, i.e. against misattribution, misrepresentation, compromise of integrity, etc.

        There are many other issues regarding the possession, exchange and communication of information and intellectual works.

        Law in this area is almost entirely focussed on the unnatural reproduction monopolies granted in the 18th century - monopolies that society is again going to have to recognise as counter-productive, unethical, and impediments to cultural and technological progress.

         

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          Richard (profile), May 6th, 2010 @ 6:59am

          Re: Re: Re: But is ACTA ultimately good?

          The vacuum would be the need to secure the natural exclusive rights of the individual, i.e. to recognise intellectual works as the property of the creator/possessor, to be secured from theft, and remedies provided.

          What do you mean by "theft" in that paragraph?

           

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            Crosbie Fitch (profile), May 6th, 2010 @ 7:15am

            Re: Re: Re: Re: But is ACTA ultimately good?

            By 'theft' I mean unauthorised access to a private space of the individual and removal or communication of an intellectual work within to without.

            I also mean the default on payment for the exchange of an intellectual work, e.g. if I hand you some software I've written for you in exchange for $500 and you refuse to hand me the $500 then you have stolen my intellectual work.

            By 'theft' I do not mean the infringement of a state granted monopoly that enables the privileged party to prohibit you from making further copies of the covered work I've sold you - though this is the contemporary meaning of 'IP theft'.

            So, there's a significant difference between intellectual work as property, and being granted a monopoly over its reproduction.

            Thus the US Constitution properly recognises the need to secure writers' and inventors' exclusive right to their writings and designs. However, the reproduction/communication/utilisation monopolies of copyright and patent that were legislated a few years later are unconstitutional.

             

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              Richard (profile), May 6th, 2010 @ 8:21am

              Re: Re: Re: Re: Re: But is ACTA ultimately good?

              OK, I understand you now.

              In fact a few years ago my wife had to use copyright law to get paid for some software that she wrote to contract when the original company went bust and the company that acquired the assets tried to use her work without paying. So if copyright law was abolished there would need to be something in place to cover that particular "hole".

              Thanks for the clarification.

               

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    Anonymous Coward, May 7th, 2010 @ 10:39am

    This week in law has an episode about ACTA, surprisingly. I haven't listened to it yet but their stuff tends to be good. Probably worth listening to, and that especially goes for you Mike.

    http://twit.tv/twil58

     

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