Where ACTA Disagrees With US Law

from the but-they-promised... dept

With Senator Wyden asking the Congressional Research Service to investigate how ACTA might conflict with US law (or restrict the ability to reform the law), KEI has put together a list of specific areas where ACTA's text is inconsistent with US law. Remember, negotiators have repeatedly insisted that nothing in ACTA will (or even can) change US law. ACTA defenders have stressed the point, repeatedly, that nothing in ACTA can legally change US law. But what no one explains is what happens when the law and the agreement are in disagreement. That's because no one wants to deal with the inevitable: when such situations come about, US lobbyists will scream about how we're "not meeting our international obligations," and will put plenty of pressure on the US until we get into "compliance." So, I'm wondering if those who insist ACTA won't change US laws will agree now to speak out against anyone who cites ACTA down the road in asking for US law to change?


Reader Comments (rss)

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  1.  
    identicon
    Anonymous Coward, Oct 12th, 2010 @ 5:22am

    Where it disagrees with canada

    a 20000$ fine for a single infringement non commercially despite the BS from media that paying 5000$ gets you ala cart is a lie. EVEN 5000$ for non commercial infringement aka you made no money in any way off the material is a section 12 charter violation as people driving without a license get less of a fine and put society at a far greater risk as an example.

    CRUEL AND UNUSUAL PUNISHMENT is illegal in canada and is a charter violation. This is just one area.....

     

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  2.  
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    Sean T Henry (profile), Oct 12th, 2010 @ 6:16am

    Just add in a phrase to the agreement that any country's law supersedes the ACTA when there is a disagreement. That would do just as it will render the ACTA as useless as it actually is.

     

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  3.  
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    Hulser (profile), Oct 12th, 2010 @ 6:23am

    Executive agreement

    "Remember, negotiators have repeatedly insisted that nothing in ACTA will (or even can) change US law."

    If the ACTA negotiators are so sure that the "executive agreement" won't conflict with US law, then they should agree to add a clause that stipulates this. Any objections to this would just expose their assurances as lie.

    Besides, they should know that the risk of attempting an end run around the treaty process (including ratification by Congress) by using an executive agreement carries the risk of it being ignored by Congress. Any congressman confronted with a whiny media lobbyist yapping at their feet about "not conforming to our international obligations" should just reply "Sorry, I'm not familiar with this 'executive agreement' of which you speak. If you wanted ACTA to be binding, it should have been a treaty. As it is now, I consider ACTA to carry as much weight as the minutes to a private meeting. Now piss off while we get down to some real copyright reform."

     

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  4.  
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    Jay (profile), Oct 12th, 2010 @ 6:48am

    Re: Executive agreement

    Let's remember, those lobbyists pay the senator's bills.

    Until we have campaign reform, there will be a section of government reserved for the ones that want the most money.

     

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  5.  
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    Dark Helmet (profile), Oct 12th, 2010 @ 7:13am

    Re: Re: Executive agreement

    "Until we have campaign reform, there will be a section of government reserved for the ones that want the most money."

    That's certainly part of the reason that Hulser's suggestion won't happen, but it isn't the only part. Consider that our system has devolved into one in which national party lines are strictly followed at the local level. How does that make any sense whatsoever? People, all people, Republicans and Democrats, are varied on their positions. Most people don't tow one line or the other.

    Yet, if you look at voting records for state, city, and local governments, you'll notice that our politicians almost always vote the party way. This suggests an odd system where voters, for the most part, aren't actually voting for a candidate, but rather for a party.

    And when you consider that this country was originally organized around the rights and powers of local government, you begin to see what a huge problem that is....

     

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  6.  
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    from canada ..up yours taxpayers, Oct 12th, 2010 @ 7:43am

    some things to remember

    A) i'm not abiding by it
    B) i'm not paying the fine
    C) at 95000$ CAD/year to imprison me for not paying a fine
    that can give me a maximum of 5.4 years per each infringement
    D)do you think this will be the final nail in copyrights that just blows up the economy and why stephen harper is spending to build new jails?

     

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  7.  
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    from canada ..up yours taxpayers, Oct 12th, 2010 @ 7:47am

    oh and yea

    life in prison for a full music album
    that will go over good at a cost of millions
    and still the artist or label gets nothing

    and when i get out if ever ill do same thing again

     

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  8.  
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    ethorad (profile), Oct 12th, 2010 @ 7:51am

    Re:

    I'd like to hear their objections to that (as I'm sure there will be many)

     

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  9.  
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    Hulser (profile), Oct 12th, 2010 @ 8:20am

    Re: Re: Executive agreement

    Until we have campaign reform, there will be a section of government reserved for the ones that want the most money.

    Of course you're right. The only hope that I have that a congressperson would actually reply that way is indignation that the ACTA is trying to cut them out of the loop. Even if big media were contributing heavily to a congressperson's campaign, they might let their emotions get the better of them when they see their power being encroached on.

     

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    Hulser (profile), Oct 12th, 2010 @ 8:31am

    Re: Re: Re: Executive agreement

    Consider that our system has devolved into one in which national party lines are strictly followed at the local level.

    This is a bit off topic, but I agree that the so-called two party system is a disaster. Occasionally I'll hear one member of a party -- doesn't matter which one -- lamenting the fact that one of his party members was "disloyal". The translation of "disloyal" of course is that this person didn't vote along party lines. So, basically what this person is saying is that it's a good thing to ignore your own moral convictions in favor of the official stance of the private organization to which you belong. The funny thing is that the moral convictions that are being put aside are most likely the very same issues that were prominant in their campaign. "I'm a strong supporter if X! Vote for me and I'll make sure that we have more X! Unless of course my political party doesn't like X, in which case, I'll have to ignore that issue and vote along party lines. Because, you know, being called 'disloyal' is obviously much worse than screwing my constituants."

     

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  11.  
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    Anonymous Coward, Oct 12th, 2010 @ 9:31am

    Mr. Love is quite adept at putting together laundry lists.

    What he seems less adept at doing is analyzing each component of such laundry lists to an extent such as, for example, Mr. Hart at Copyhype.

    If he did so it would quickly be apparent that his so-called "conflicts" are of dubious merit.

     

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  12.  
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    Mike Masnick (profile), Oct 12th, 2010 @ 10:24am

    Re:

    If he did so it would quickly be apparent that his so-called "conflicts" are of dubious merit.


    Care to provide an actual example or should we assume, as per usual, that you don't have anything to back up your statements?

     

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  13.  
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    Anonymous Coward, Oct 12th, 2010 @ 10:50am

    Re:

    Coming from the anonymous lawyer who has never provided a single shred of evidence in any comment, your whining is rather hilarious.

     

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  14.  
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    Anonymous Coward, Oct 12th, 2010 @ 1:34pm

    Re: Re:

    I assumed (apparently in error) that one who read my comment would go to the noted site and read the 4 articles posted there.

     

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  15.  
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    Anonymous Coward, Oct 12th, 2010 @ 1:38pm

    Re: Re:

    Try reading at least Mr. Hart's analysis before engaging in hilarity.

     

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  16.  
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    Mike Masnick (profile), Oct 12th, 2010 @ 1:40pm

    Re: Re: Re:

    I assumed (apparently in error) that one who read my comment would go to the noted site and read the 4 articles posted there.

    And which of those 4 articles address the specific points raised by Mr. Love?

     

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  17.  
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    The Groove Tiger (profile), Oct 12th, 2010 @ 2:06pm

    Re: Re: Re:

    If you read the internets, you will realize that you're wrong in every way.

    Click here

     

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  18.  
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    The Groove Tiger (profile), Oct 12th, 2010 @ 2:08pm

    Re: Re: Re:

    If you read the internets, you will realize that you're wrong in every way.

    Click here (link to the internets)

    It's a series of tubes!

    (If you disagree, it's because you haven't read the internets)

     

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  19.  
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    Anonymous Coward, Oct 12th, 2010 @ 2:50pm

    Re: Re: Re: Re:

    As but one example of where Mr. Love has apparently misinterpreted US law, he devotes about 1/2 of his comments regarding patents (which he does correctly note the US wants removed from the draft) to 42 USC 2184. It is easy to understand how he might misinterpret same given its title. However, if one drills down through the statute he will quickly discover that it pertains to 2183, and that 2183 is in turn limited to patents issuing on patent applications filed before 9/1/79 (see: supara. (h)). Insofar as I am aware, there is no presently subsisting patent that meets this limitation. If I am mistaken I would be pleased to review any such subsisting patent and consider whether or not 2184 might have any application thereto.

     

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  20.  
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    Terry Hart (profile), Oct 12th, 2010 @ 4:10pm

    Re: Re: Re: Re:

    Article 1.3 of ACTA states "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party’s law." This would seem to me to address many of the exceptions and limitations on IPRs raised in the KEIOnline article. The scope of IPRs is already governed by TRIPS, which expressly provides for limitations and exceptions in Article 13.

    Regarding sovereign immunity and several of the limitations mentioned for gov't organizations (KEIOnline mentions the Nat'l Archives and Records Admin and the Library of Congress), Article 2.X, General Obligations with Respect to Enforcement, of ACTA provides "4. No provision of this Chapter shall be construed to require a Party to provide for liability of officials for acts undertaken in the performance of their official duties." In addition, the chapter on injunctions provides that "a Party may limit the remedies available against use by government, or by third parties authorized by a government, without the authorization of the right holders to the payment of remuneration provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use."

    Regarding the statutory remedies in US law that are not based on "any measure put forward by copyright owners," these are consistent with the ACTA provisions highlighted above. It should also be noted that Article 2.2 of ACTA doesn't require judicial authorities to only consider damages calculated by any measure put forward by copyright owners. It only states that, under the ACTA, this is one of the options available in civil proceedings.

     

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  21.  
    identicon
    Anonymous Coward, Oct 12th, 2010 @ 9:18pm

    Re: Re: Re:

    What does Mr. Hart's analysis have to do with your inability to defend your points?

    I mean, besides that you are using Mr. Hart's analysis to deflect attention from your ineptitude.

     

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  22.  
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    Mike Masnick (profile), Oct 13th, 2010 @ 1:44am

    Re: Re: Re: Re: Re:

    However, if one drills down through the statute he will quickly discover that it pertains to 2183, and that 2183 is in turn limited to patents issuing on patent applications filed before 9/1/79

    Aha. See? Was that so hard? You actually added some relevant information to the conversation! You could have done that earlier, but for some reason you normally refuse to do so, preferring instead to make snide pedantic comments putting everyone down.

    Of course, it's also worth pointing out that Love does not rely solely on 42 USC 2184 in explaining why the patents part is problematic. In fact, one of the reasons that US negotiators have cited for not wanting to include patents is that they realize it might conflict with US law.

     

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  23.  
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    Mike Masnick (profile), Oct 13th, 2010 @ 1:54am

    Re: Re: Re: Re: Re:

    Article 1.3 of ACTA states "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party�s law." This would seem to me to address many of the exceptions and limitations on IPRs raised in the KEIOnline article. The scope of IPRs is already governed by TRIPS, which expressly provides for limitations and exceptions in Article 13.

    Trying to get this straight. So... even if the specifics of ACTA go against the rules, because ACTA says it shouldn't go against the rules, it's okay?

    Also, I do wonder if those who are now insisting that ACTA will not change US law will be willing to stand up and protest when (a) lobbyists point to ACTA as a reason to support changes to US law (or pointing to ACTA in preventing other changes to US law) or (b) when decisions are made based on ACTA ignoring this line saying that it should not impact US law.

    Article 2.X, General Obligations with Respect to Enforcement, of ACTA provides "4. No provision of this Chapter shall be construed to require a Party to provide for liability of officials for acts undertaken in the performance of their official duties."

    Again, I have serious problems with having parts of ACTA disagree with US law, to only have it say *elsewhere* in the document "nothing should change the law." That seems like a conflict waiting to happen -- and a situation where people will conveniently ignore the part you quoted here.

    Regarding the statutory remedies in US law that are not based on "any measure put forward by copyright owners," these are consistent with the ACTA provisions highlighted above. It should also be noted that Article 2.2 of ACTA doesn't require judicial authorities to only consider damages calculated by any measure put forward by copyright owners. It only states that, under the ACTA, this is one of the options available in civil proceedings.

    Similar to how current copyright law does not *require* the "four factors test" for fair use, but only states that those issues should be considered (among others)? Yet, I dare you to name a fair use case where a judge goes outside of the four factors in determining fair use.

    In all practicality, the difference between "required" and "one of the options" in such things has not proven to be meaningful when it comes to practice.

     

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  24.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 8:49am

    Re: Re: Re: Re: Re: Re:

    I, quite frankly, saw no useful purpose served my merely repeating many of the points made by Mr. Hart, which is why I mentioned the name of his website so that readers could review it themselves and assimilate the iformation discussed there in detail. If persons here choose not to do so, then that is their loss in understanding my Mr. Love has raised points that do not withstand scrutiny.

    You do this all the time as it keeps posts from being unnecessarily prolix and is simply a good practice. Why you choose to berate me for doing the same thing suggests other motives may underlie your typical reaction to my comments.

    I was careful to note that I was providing merely one example, and did not offer it up in my original post simply because I expect that patents will be excluded from the final agreement for reasons having absolutely nothing to do with "conflicts". I could have, for example, delved into the various purported "conflicts" associated with state sovereign immunity, but to explain why there are no such conflicts would require a much too long explanation of constitutional principles and relevant case law applying the 11th Amendment. This is not a site devoted to legal treatises.

    As for your final sentence, if any of the patent provisions in the current ACTA text are in conflict with US law, then the USTR has no choice but to seek their removal since his charter is to negotiate provisions fully in accord with current US law. He has no authority to do otherwise, which is one of the distinctions between a treaty and an executive agreement.

     

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  25.  
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    Anonymous Coward, Oct 13th, 2010 @ 8:55am

    Re: Re: Re: Re: Re: Re:

    Re the four fair use factors, their consideration and application is mandatory ("shall"), and not discretionary.

    Perhaps you have this confused with the fact that the fair use provision does authorize a trial judge to consider additional factors.

     

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  26.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 10:31am

    Re: Re: Re: Re: Re: Re:

    Let me ask you a favor.

    You say that anonymity here is important, and yet many comments I provided are laced with references to my being a lawyer, which almost invariably leads to a host of negative comments from others because of my status. When I post anonymously I would prefer that it remain just that.

    For some reason(s) you give the impression that I come here with the purpose of casting aspersions in an attempt to mock this site. This is not true. I will present comments when I believe that some aspect of law is not understood or being misstated, but attempting to make what I believe is a corrective comment is hardly the same as casting aspersions.

    Your taking note of the above would be appreciated.

     

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  27.  
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    James Love (profile), Oct 13th, 2010 @ 10:41am

    Exceptions to obligations

    There is a distinction, legally, between exceptions to rights, and exceptions to remedies to enforce rights. In the WHO TRIPS Agreement, rights and exceptions to rights are set out in Part II of the Agreement. The obligation to enforce those rights, and exceptions to those obligations, are set out in Part III of the TRIPS. The areas we have identified as problems for ACTA are exceptions to remedies to rights, not exceptions to the rights themselves. This was the topic of intense negotiation in the ACTA. What are the permitted exceptions to obligations to enforce rights? Thus, if the US provides for a right, but limits the remedies to enforce that right, is it consistent with the ACTA or not? And if countries can implement whatever exceptions they want to ACTA provisions, what does ACTA actually mean?

     

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  28.  
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    Mike Masnick (profile), Oct 13th, 2010 @ 11:11am

    Re: Re: Re: Re: Re: Re: Re:

    You say that anonymity here is important, and yet many comments I provided are laced with references to my being a lawyer, which almost invariably leads to a host of negative comments from others because of my status. When I post anonymously I would prefer that it remain just that.

    To be clear, it is obvious who you are based on your writing style and choice of language. That is information you are revealing yourself. Separately, there are over a million lawyers in the US, and no one has said you are a US-based lawyer, though your comments indicate as such. I do not see how suggesting that you are a lawyer, which is clear from the nature of your comments rids you of any anonymity whatsoever.

    On top of that, most people on this site have nothing against "lawyers." We regularly cite lawyers all the time, and we like plenty of lawyers. The most frequent people we talk to about posts on this site are lawyers.

    For some reason(s) you give the impression that I come here with the purpose of casting aspersions in an attempt to mock this site. This is not true.

    You make me laugh. That is most certainly the impression you give with both your tone and your repeated attempts to make comments about me personally (though, every time I bring this up, you pull a "that's not my intention).

    Your taking note of the above would be appreciated.


    Noted, but it will not change how I respond to comments that I feel are not being intellectually honest in their intent.

     

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  29.  
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    James Love (profile), Oct 13th, 2010 @ 12:04pm

    Re: Re: Re: Re: Re:

    There is a difference between exceptions to rights, and exceptions to obligations to enforce rights. (Part II vrs Part III of the TRIPS). The text you describe does not address the issue of the ACTA obligations to provide the possibility of injunctions or damages for infringing the rights that are granted.

    The official duties language is not particularly important for exceptions. The 2nd paragraph in the injunctions provision is important, and we lobbied for 2 years to get it in. But it does not cover the non-remunerated cases, such as the many that I cited. Also, the bad language on damages in the ACTA text is in conflict with various statutory standards for damages. Since some statutes we cite deal with both damages and injunctions, to check for consistency you have to check to see if either provision are violated by the ACTA, not just one.

     

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  30.  
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    Terry Hart (profile), Oct 13th, 2010 @ 2:27pm

    Re: Re: Re: Re: Re: Re:

    Yet, I dare you to name a fair use case where a judge goes outside of the four factors in determining fair use.
    Sony BMG v. Tenenbaum - the judge considered five additional, nonstatutory factors.

    William Patry states that "courts have routinely considered other factors" in his treatise on copyright and lists dozens of decisions where that happened.

     

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  31.  
    identicon
    MLS, Oct 13th, 2010 @ 2:28pm

    A specific example applying the pertinent ACTA injunction provision to a specific US statute you believe would be in conflict would be helpful to understand your point.

    As best I can tell at this juncture from your comments is that you have some concerns associated with sovereign immunity. BTW, in dealing with sovereign immunity it is useful for readers to understand that both the USG and the individual states enjoy varying degrees of such immunity under US law.

     

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  32.  
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    Anonymous Coward, Oct 13th, 2010 @ 2:37pm

    Re: Re: Re: Re: Re: Re: Re:

    To further elaborate re Tenenbaum, additional factors identified and considered by Judge Gertner:

    a. Assumption of Risk

    b. Marketing Activities and Failure to Protect

    c. Availability of Paid Alternatives

    d. Policing Costs

    e. The Injustice of this Action

     

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  33.  
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    James Love (profile), Oct 14th, 2010 @ 7:43am

    Re: Re: Re: Re: Re: Re:

    I don't think the nuclear energy provisions are the most important element of the critique of ACTA. But here I would note that the standards for compensation for use of a patent for nuclear energy also are covered by 42 U.S.C. § 2188 : US Code - Section 2188: Monopolistic use of patents, which states:

    Whenever the owner of any patent hereafter granted for any invention or discovery of primary use in the utilization or production of special nuclear material or atomic energy is found by a court of competent jurisdiction to have intentionally used such patent in a manner so as to violate any of the antitrust laws specified in section 2135(a) of this title, there may be included in the judgment of the court, in its discretion and in addition to any other lawful sanctions, a requirement that such owner license such patent to any other licensee of the Commission who demonstrates a need therefor. If the court, at its discretion, deems that such licensee shall pay a reasonable royalty to the owner of the patent, the reasonable royalty shall be determined in accordance with section 2187 of this title.

    I would agree, however, this is not as clear a conflict with the ACTA text as 2184, both because the court has the discretion of issue a "license," which is a Part II exceptions issue that is not changed by ACTA, and it has discretion to order the reasonable royalty.

     

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  34.  
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    Anonymous Coward, Oct 14th, 2010 @ 8:14am

    Re: Re: Re: Re: Re: Re: Re:

    One of the biggest difficulties associated with patent law in general is that its metes and bounds is scattered throughout numerous titles of the US Code, the various statutes were usually drafted by groups having virtually no substantive knowledge of patent law, and many of the statutues were enacted many, many years ago are in many instances are no longer even applicable.

    I can point to numerous examples, but certainly three federal agencies immediately come to mind, the DOE, the DOS, and the NASA. Insofar as I am aware, however, these statutes enacted at the behest of these agencies are consistent (but only purely by blind luck) with the provisions in the ACTA draft pertaining to patents (which provisions I believe will likely be struck out over the objection of those countries who we both know are focused on patent law as it pertains to the manufacture of generic drugs...provisions that would cause pharmaceutical companies to exhibit quite strong gag reflexes).

    Merely FYI, for quite some time I have been attempting to note that there is a significant legal difference between a treaty and an executive agreement. The former must be consistent with the Constitution, whereas the latter must be consistent with existing federal legislation. To the extent any provision in whatever emerges from the ACTA process conflicts with US law, it is clear that such a provision would be of no force and effect as being ultra vires. Moreover, it is a matter of basic constitutional law that an agreement negotiated by the Executive Branch cannot bind the Legislative Branch without running afoul of the "Separation of Powers" doctrine.

    You noted, and I later commented, about the peculiarities associated with both state and federal sovereign immunity. If this is a subject you would like to explore in greater detail you need only ask (slonecker@earthlink.net). For example, at this moment there is a case moving forward before the Federal District Court in Atlanta and the Court of Appeals for the Federal Circuit that has turned 28 USC 1498 on its ear.

     

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