US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns

from the failure dept

Despite serious Constitutional concerns in the US, and significant legal questions in the EU, it appears that the US and the EU, along with most of the other participants in the ACTA negotiations are planning to sign ACTA this weekend in Japan. In the US, this may very well lead to a Constitutional challenge. President Obama, via the USTR, is ignoring the Senate's oversight concerning treaties, by pretending ACTA is not a treaty, but rather an "executive agreement." Pretty much everyone else agrees that ACTA is a binding treaty -- in fact, EU negotiators have been quite vocal on that point.

But even if this is considered "an executive agreement," the President does not have the authority to sign an executive agreement concerning intellectual property issues. Executive agreements can only be signed if they cover issues solely under the President's mandate. But intellectual property issues are clearly under Congress's mandate, and nowhere in the Constitution is the President given a mandate over IP issues. This is a clear end-run around Congress, and seems likely to be unconstitutional.

What I really don't get is why they're making such an end-run. As we've seen with things like PROTECT IP, most of the Senate seems to have no problem propping up the entertainment industry's legacy players with bogus laws and "greater enforcement." It seems likely that ACTA would probably sail through the Senate with little problem. But the administration seems to not even want to have the slightest debate on the topic -- which is greatly troubling, considering that the USTR negotiated the agreement in near total secrecy, refusing to allow public comment or debate (outside of leaks which it tried to block) until after the document was done.

The others that are listed as planning to sign the document are Japan, Australia, Canada, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland. Basically all the countries who took part in the negotiations. The fact that Mexico is on that list is interesting, given that the Mexican Congress has already told the Mexican President that it will not ratify ACTA, and made it clear that Mexico needs Congress to ratify ACTA to have it go into effect. In other words, it sounds like Mexico is facing a similar executive run-around as in the US.

It's pretty amazing. This isn't even just about Presidents doing an end-run around the public, but around their own legislatures. And for what? A bailout of some legacy entertainment industry players who are unwilling to adapt.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    crade (profile), Sep 27th, 2011 @ 11:43am

    This has that awesome "judgement must always favour the DRM maker" provision. hmm, michaelgeist.ca is suddenly down.

     

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    Hephaestus (profile), Sep 27th, 2011 @ 11:59am

    Cool, let the president sign it. Maybe this will be the one that gets him impeached.

     

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  3.  
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    Matthew A. Sawtell, Sep 27th, 2011 @ 12:30pm

    Silly Mike...

    ... Obama didn't make that trip to Hollywood for fund raising for nothing.

     

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  4.  
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    anonymous, Sep 27th, 2011 @ 12:37pm

    would really like to know what is actually going on here. it seems as if the whole world is being run by these legacy, entertainment companies, despite what the public wants and even a lot inside governments. this situation just don't make sense. how can everyone else be ignored? after all, there is no way that this is the most important industry on the planet. it doesn't feed, water, cloth or heat the populace, does it?

     

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  5.  
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    Anonymous Coward, Sep 27th, 2011 @ 12:41pm

    "What I really don't get is why they're making such an end-run."

    Because the corporations write the laws, the government enforces them. Corporations can write laws however they want.

     

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  6.  
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    Jeffrey Nonken (profile), Sep 27th, 2011 @ 12:43pm

    Shhh!

    It's a trick. The presidents are trying to get ACTA thrown out on constitutional grounds but they're trying to be sneaky about it. DON'T LET ON THAT YOU KNOW!

     

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  7.  
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    Anonymous Coward, Sep 27th, 2011 @ 12:50pm

    Re:

    If Obama gets impeached then Biden becomes POTUS and he's even worse when it comes to taking bribes... I mean "campaign contributions" from Hollywood.

     

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  8.  
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    John Doe, Sep 27th, 2011 @ 12:54pm

    Stuff like this

    It is stuff like this that makes me want to quit respecting IP. As it is, I don't pirate anything, but that may not last much longer.

     

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  9.  
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    MrWilson, Sep 27th, 2011 @ 12:59pm

    Re:

    The people in power don't care about companies that feed, water, clothe, or heat the populace. They care about companies that make them money. Period. Full stop.

     

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  10.  
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    Clouser, Sep 27th, 2011 @ 1:01pm

    Not surprised

    Hollywood runs the show. Big contributors to the Democrats and the Obama campaign.

     

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  11.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:01pm

    Between the ACTA and the recent Vice-Presidential involvement in a 'voluntary' agreement between ISP and Big Content I cannot, in good conscious, vote Obama in the coming election.

     

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  12.  
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    crade (profile), Sep 27th, 2011 @ 1:03pm

    Re: Re:

    They don't care about companies, they care about making laws to get their friends money and getting kickbacks.

     

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  13.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:04pm

    No priorities

    "What about the economy, the unresolved wars, and the natural disasters?"
    "Too hard, let's just bail out a few incompetent, self-entitled old men at the expense of everyone else."

     

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  14.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:06pm

    Re: Re:

    Not quite full stop. In addition to money politicians care about influence and nothing influences people more than culture. So there's a vested interests in top-down, monolithic control of culture for politicians because it makes their job, getting reelected (Ha, you thought it was working for the people didn't you? Silly you.), much easier. Tossing favors to a few corporations that control global media and culture is much easier than slowly building grass roots support after all.

     

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  15.  
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    Designerfx (profile), Sep 27th, 2011 @ 1:06pm

    Re: Re:

    yep, it's really shortsighted. They think the money is exclusively in the "BIG BUCK$" category, and forget the fact that without infrastructure support (aka the little people you're squashing), you get nothing.

     

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  16.  
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    Eileen, Sep 27th, 2011 @ 1:09pm

    Re:

    Sadly I agree, but what other options are there? There is no one meaningfully "left" of Obama, and on rights issues like this you're left with semi-crazies like Ron Paul (who I may end up voting for out of desperation). It's depressing.

     

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  17.  
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    The eejit (profile), Sep 27th, 2011 @ 1:10pm

    Re: No priorities

    You know, what?

    Fuck it. I'm done with having culture being raped by a few money-obsessed parasites who consistently refuse to adapt, or even consider what it is in them that makes people not want to buy. So fuck it, I'm done buying shit from these fucks. My money's going to people who earn my respect.

     

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  18.  
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    fogbugzd (profile), Sep 27th, 2011 @ 1:17pm

    Re: Re:

    Basically we need a third party in the middle. Some type of fiscally conservative, clean government, keep-the-government- out-of-our-lives type of platform. (And no, I don't mean the Tea Party. They fail on at least two of the three criteria.)

    In the long run third parties themselves have always died away in the US, but only because one of the other two parties adopts their agenda.

     

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  19.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:18pm

    What's most outrageous here is the fact that the Supreme Court ruled that 'Executive Agreements' have the power of a treaty in the first place. The whole premise of an executive agreement is a violation of the constitution and it's checks and balances as our founding fathers envisioned it.

    If a treaty really needs to be kept secret because of sensitive information involved (since executive agreements were thought up for war time treaties between allies) then it shouldn't be a treaty in the first place, it's simply an agreement between two or more allies.

    But now lots of 'executive agreements' that need zero secrecy for security reasons, and have no secrecy at all, are regularly made ever since the Supreme Court ruled it was legal.

     

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  20.  
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    Jay (profile), Sep 27th, 2011 @ 1:25pm

    Re: Re: Re:

    Unfortunately, won't work in our First to Post system. Until we fix that, and the myriad of other problems of our two party electorate, it's just going to be the same shit on a different day.

    We might as well have the one party to rule them all.

     

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  21.  
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    E. Zachary Knight (profile), Sep 27th, 2011 @ 1:30pm

    Re: Re: Re:

    Then the Libertarian Party is the right one. They take the good from both parties, fiscally conservative, socially liberal, and ditch the dross.

    They have been on the presidential ballot in most all states for the last few decades and people ignore them because the two party system is able to convince the public that a vote for a third party is a vote in favor of the "other guy"

     

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  22.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:31pm

    Re:

    Case law citations would be of benefit.

     

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  23.  
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    Justin (profile), Sep 27th, 2011 @ 1:33pm

    No More Incumbants

    Too bad the founding fathers did not put term limits in the Constitution. It is time for a lot of these incumbents to be put out to pasture

     

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  24.  
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    out_of_the_blue, Sep 27th, 2011 @ 1:40pm

    "why they're making such an end-run"?

    Because they CAN. It's another not-subtle message, as with going to war in Libya despite clear violation of War Powers Act, that the rule of law in the US is over. And Congress is now coverted into a committee of twelve oligarchs, can't and won't act even in face of war, so this is minor.

    You aren't in Kansas anymore, Toto, you're in a federal district labeled "KS", where the Constitution doesn't apply.

     

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  25.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:41pm

    Re: Re: Re:

    Ron Paul!

     

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  26.  
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    Hephaestus (profile), Sep 27th, 2011 @ 1:44pm

    Re: Re:

    But there is no chance biden would get elected in 2012.

     

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  27.  
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    jupiterkansas (profile), Sep 27th, 2011 @ 1:49pm

    Re: Re:

    At this point the country can use a little crazy.

     

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  28.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:53pm

    Re: Re: Re:

    What you describe already exists. It's called the Libertarian Party.

     

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  29.  
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    Anonymous Coward, Sep 27th, 2011 @ 1:53pm

    Re: Re: Re:

    What you describe already exists. It's called the Libertarian Party.

     

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  30.  
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    jupiterkansas (profile), Sep 27th, 2011 @ 2:04pm

    Re: Re: Re:

    Corporate-owned media gives both Democrats and Republicans easy, complete, and exclusive access to the mass media machine and it's in their interest to keep it running and keep it happy because it shuts out all other voices but their own and allows the two-party system to go unchallenged.

    And until people stop getting their news from television, stop going to see Hollywood's crap, turn off their radio, cut their cable, start listening to indie music, and get out of their house to see some live theatre (that isn't based on a movie) and invest in their local communities instead of continually feeding international corporations that currently own and control a century's worth of culture, nothing will ever change. Most people seem content to just keep feeding the machine - after all, it's just harmless entertainment.

    The internet is still a conduit that can replace most of your entertainment options and give voice to every individual (even though most individuals seem to be morons). It's the last hope of having something that isn't completely controlled by multi-national corporations, and that's why ACTA and all the other corporate-endorsed internet legislation needs to fail.

     

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  31.  
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    surfer (profile), Sep 27th, 2011 @ 2:33pm

    Re: Re: Re: Re:

    you hit the nose on the head. When faced with the reality of it all, economic chaos from reckless rich bankers; and with the SEC in their pocket, there is no repercussions. Employment stagnation, genetically modified foods, wholesale commodity brokering of gasoline to inflate the price, student loans granted to anyone with a pulse, you realize that the entire planet and it's resources are only here for the whims of the rich. If you balled up all the rights and privileges you have lost over the last 10 years, go back 10 years, and attempt to take them away all at once, there would be rioting in the streets, and I do mean real blood, not Hollywood ketchup. Chance and history has emboldened the 'haves' to migrate their covert attempts to fleece the 'have-nots' to overt fleecing.

    Hollywood is designed to continue to export hope to the sheeple that there actually is a pot of gold at the end of the rainbow if you work hard enough, aka The American Dream, when in fact, there is no such thing. With their movies about car chases, shoot em ups, super heroes, love stories, and happy endings, they portray a fantasy world in one and a half bits to soothe the unconscious rage teeming in every single American. This is why Americans are so lazy, deep down, they realize, there is no hope of rising to millionaire, sans the 90 minute respite at your local movie theatre for $40USD.

    Controlling the mass media is of utmost priority to ensure that nobody, and I mean nobody sees the man behind the curtain and realized, it's all just bullshit.

    It's not that they can't understand why ppl like myself infringe on copyright, it's that they have the mentality of how DARE I. It's no wonder they call this 'The Entitlement Generation'.

    This is the prime reason I infringe on copyright, and have for 10 years, and will until my dying days.

     

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  32.  
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    Rikuo (profile), Sep 27th, 2011 @ 2:59pm

    Re: "why they're making such an end-run"?

    "And Congress is now coverted into a committee of twelve oligarchs"

    So...you're saying Congress is the Patriot's Wisemen's Committee from Metal Gear Solid?
    Sorry, couldn't resist ^^

     

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  33.  
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    The Incoherent One (profile), Sep 27th, 2011 @ 3:21pm

    Re: Re: Re:

    He could do enough damage in a year, to make even Obama's largest failure look paltry by comparison. Biden is like a sock puppet for the entertainment industry. We might as well pull a switcharoo and trade with France for Sarkozy.

     

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  34.  
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    The Incoherent One (profile), Sep 27th, 2011 @ 3:23pm

    Re: Shhh!

    I see what you did there, and I like it.

    Though I have to say that the past two administrations have used the constitution as toilet paper to this day so I can't see it working out this way.

     

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  35.  
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    The Incoherent One (profile), Sep 27th, 2011 @ 3:24pm

    Re: Re: No priorities

    You are going to have more money than you know what to do with.

     

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  36.  
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    The Incoherent One (profile), Sep 27th, 2011 @ 3:26pm

    Re: Re: "why they're making such an end-run"?

    I know that you were joking, but isn't the saddest part the fact that the comparison can be made in the first place?

     

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  37.  
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    crade (profile), Sep 27th, 2011 @ 4:05pm

    Re: Re: Re: Re:

    That won't matter. If you don't support it by choice, they will just pass laws to force you to. Get with the program eh?

     

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  38.  
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    Anonymous Coward, Sep 27th, 2011 @ 4:18pm

    Re: Re:

    It's even worse than that. Biden was one of the lawyers in charge of suing Napster on behalf of the entertainment industries.

    He was bought and paid for long before he ever got in office.

     

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  39.  
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    KGWagner (profile), Sep 27th, 2011 @ 4:19pm

    Balance of Trade

    One thing that doesn't seem to come up much, if at all, is that IP and the results of it are some of the very few things that we actually export any more, and there's a lot of money in it.

    I'm not an economist, but I know the money's gotta come home. You can't run a trade deficit forever or you'll run out of money unless you just print it, and if you do that, it loses value really fast.

    So, I suspect what nobody who knows the real score wants to say out loud is that we dearly need to keep our IP close to the vest, or we've got very little to offer any trading partners. Once that happens, we're in deep, meaningful sheep dip.

    So, ACTA? You betcha. It's not just the RIAA and MPAA - everybody wants to keep from killing the Golden Goose.

     

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  40.  
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    Anonymous Coward, Sep 27th, 2011 @ 5:51pm

    Re: Balance of Trade

    Well that you know nothing about economy that much is clear or you would know that since the 60 or early 70 the United States have been running a deficit, and they do so by printing money and selling bonds.

    What is absurd still is that IP is not real property and it is not something Americans export as you say, because if it was you wouldn't have other countries surpassing the US without paying a dime.

    What IP builds inside a country is a core of people who will own every piece of IP available and will try to extract rents from others, all that crap will coalesce into one super giant pool of nonsense and that is when people will get mad, because nobody will be able to do anything without paying someone for something they didn't work for, created or care about.

    Further without producing anything and with competitors being able to outsmart American business people how long do you think those same competitors will take to hassle from American control those same IP you think it is so important and use it against American interests?

    The 5th stage of social evolutions some say is services, but some took it to mean IP which is just crazy and downright stupid.

    IP laws only favour the incompetents that don't know how to make something work and create more incompetent people that become social parasites, but that is not the worst part the worst part is making rules that you will need to respect in the future and will become hard to change once they get ingrained and when others start producing more IP which is easy since you don't need to implement it and you just need to imagine things you can bet that 6 billion people will beat any 350 million any day of the week.

     

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  41.  
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    Rekrul, Sep 27th, 2011 @ 6:47pm

    Re:

    Between the ACTA and the recent Vice-Presidential involvement in a 'voluntary' agreement between ISP and Big Content I cannot, in good conscious, vote Obama in the coming election.

    Really? The dozen or so broken campaign promises had no influence on your decision?

     

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  42.  
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    Rekrul, Sep 27th, 2011 @ 6:51pm

    Despite serious Constitutional concerns in the US, and significant legal questions in the EU, it appears that the US and the EU, along with most of the other participants in the ACTA negotiations are planning to sign ACTA this weekend in Japan.

    You say that like there was ever any doubt that this would happen. The entertainment industries spent too much time and money on ACTA for there to be any other outcome.

     

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  43.  
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    PRMan, Sep 27th, 2011 @ 8:33pm

    Re: Re:

    Who is this Ron Paul you speak of? The media's never mentioned him, even when he won their poll.

     

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  44.  
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    PRMan, Sep 27th, 2011 @ 8:36pm

    Re: Re:

    Who is this Ron Paul you speak of? The media's never mentioned him, even when he won their poll.

     

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  45.  
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    Anonymous Coward, Sep 27th, 2011 @ 8:47pm

    Re: Re: Balance of Trade

    I am not at all sure that I would dare call the many Nobel Prize Laureates who secured patents on their ground-breaking work "incompetents". Quite the opposite.

     

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  46.  
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    Anonymous Coward, Sep 27th, 2011 @ 8:55pm

    Re:

    The media industries are certainly major players in supporting ACTA, but the are joined by many other major players in a host of industries having nothing to do with media.

    Try to keep in mind that in matters of the law there will always be those who say "illegal" and those who say "legal". The intimation here that perhaps persons with constitutional concerns about ACTA are greater in number than those who express contrary views is not borne out in the literature. Also try to keep in mind that sovereign nations all have their system of laws, and what might be accepted as a "treaty" in one does not mean that the same is true in others, with the US being a leading example of the latter.

     

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  47.  
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    Anonymous Coward, Sep 27th, 2011 @ 10:42pm

    How odd

    it is almost as trough they are trying to completely destroy any chance things like "copyright" have of survival in a future that makes them irrelevant. I wonder if the Maifaa and the Pirate Bay may actually be one and the same?

     

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  48.  
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    The eejit (profile), Sep 27th, 2011 @ 11:26pm

    Re: Re: Re: No priorities

    I don't know, there's always Jamendo and VODO. And maybe Trion Worlds for the MMO front.

     

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  49.  
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    The eejit (profile), Sep 27th, 2011 @ 11:29pm

    Re: Re:

    But here's the thing: why should it be called both in signees' respective nations: for example, it's and "executive agreement" in the US, but a "binding treaty" in the EU and Australia?

    That makes about as much sense as the people booing the gay soldier at the last GOP primary debates.

     

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  50.  
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    Mike Masnick (profile), Sep 28th, 2011 @ 1:23am

    Re: Re: Re:

    It's even worse than that. Biden was one of the lawyers in charge of suing Napster on behalf of the entertainment industries.

    Um. No. Biden was in the Senate for decades before Napster even existed.

    Yes, he's a "friend" to the entertainment industry, but let's not make up completely ridiculous stories.

     

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  51.  
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    Mike Masnick (profile), Sep 28th, 2011 @ 1:27am

    Re: Re:

    The intimation here that perhaps persons with constitutional concerns about ACTA are greater in number than those who express contrary views is not borne out in the literature

    As per usual, you provide no citations. Because you can't.

    Also try to keep in mind that sovereign nations all have their system of laws, and what might be accepted as a "treaty" in one does not mean that the same is true in others, with the US being a leading example of the latter.

    Ha! You are being intellectually dishonest yet again. While countries may have different standards for what is a treaty -- what *must* happen is that both sides of an agreement agree on the nature of the agreement that is being signed. You don't get to say one side says it's a memo of understanding, while the other says it's a binding contract.

    If ACTA is a treaty in Europe it's a treaty here. And you know that.

     

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  52.  
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    Nick Coghlan (profile), Sep 28th, 2011 @ 4:23am

    Ads

    Unrelated to the article, but TD just got its AdBlock whitelisting privileges on my browser revoked again.

    The offender was one that took over the entire screen due to a misclick while moving over to the scrollbar (the ad hadn't even fully loaded yet when it did it). Reloading the page, it was a large banner ad where if you left the mouse pointer over it for 3 seconds, it took that as permission to take over the entire tab. Any click anywhere on the ad would also immediately do the same thing. Not cool.

     

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  53.  
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    Anonymous Coward, Sep 28th, 2011 @ 7:21am

    Re: Re: Re: Balance of Trade

    Care to show us how many of those Nobel Prize Laureates had become successful business people?

     

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  54.  
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    Anonymous Coward, Sep 28th, 2011 @ 8:08am

    Re: Re: Re:

    I did not feel the need to provide citations due, in part, to the fact that you have referred to such alternate opinions many times in your articles on the subject.

    Other nations are free to call and view ACTA however they want, but that does not mean that it comprises a "treaty" in a constitutional sense under US law.

    While I would personally prefer that matters such as this follow the "treaty" process articulated in the constitution so that a broader consensus is demonstrated, executive agreements, like them or hate them, are a fixture in US law and authorized to be used so long as they do not impinge upon the separation of powers doctrine enshrined in the constitution.

    Importantly, Congress is especially keen on making sure that its legislative powers unter Article 1 are not infringed. It is telling that with regard to ACTA only but a very, very few are even talking about ACTA, and even then most of the talk has been directed to the negotiation process, and not ACTA's provisions.

     

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  55.  
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    Anonymous Coward, Sep 28th, 2011 @ 8:13am

    Re: Re: Re: Re: Balance of Trade

    What the heck does this have to do with the "time of day"? These are composed entirely of scientists, and they generally do not serve in other capacities within their respective business organizations.

    My comment was addressed solely to the characterization of patentees as being "incompetents", which experience time and time again demonstrates is not a universal trait.

     

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  56.  
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    Anonymous Coward, Sep 28th, 2011 @ 10:45am

    The true darknet

    Later historians would note, that this event would be the primary impetus for the rise of the darknets and fully decentralized inter-networking.

     

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  57.  
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    Anonymous Coward, Sep 28th, 2011 @ 11:12am

    Re: No priorities

    Welcome to Capitalism.

     

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  58.  
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    Rekrul, Sep 28th, 2011 @ 1:10pm

    Re: Ads

    I've been using the MVP Hosts file for quite a while now. Other than disabling Javascript (which I do for any site that doesn't truly require it), it's the only form of ad blocking I use. I never see any ads on here. It redirects all connections to known ad sites to 127.0.0.1.

    http://winhelp2002.mvps.org/hosts.htm

     

    reply to this | link to this | view in thread ]

  59.  
    identicon
    Rekrul, Sep 28th, 2011 @ 1:12pm

    Re: Re:

    Also try to keep in mind that sovereign nations all have their system of laws, and what might be accepted as a "treaty" in one does not mean that the same is true in others, with the US being a leading example of the latter.

    If it's not a binding treaty, what's the point of creating and/or signing it?

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    Anonymous Coward, Sep 28th, 2011 @ 2:16pm

    Re: Re: Re:

    In the business world a commom document between groups is known as an MOU (Memorandum of Understanding). It looks like a contract, and in some instances might have some provisions making it so, but it is generally a document that sets out the mutual understandings of each member of the group that will serve as a guidepost for future activities.

    If ACTA is viewed as an instrument somewhat along the lines of an MOU, it may prove useful in answering the question you pose.

     

    reply to this | link to this | view in thread ]

  61.  
    identicon
    Anonymous Coward, Sep 29th, 2011 @ 9:14am

    Re: The true darknet

    Or maybe it draws us even more closer to a revolution...

     

    reply to this | link to this | view in thread ]

  62.  
    identicon
    Paul Keating, Sep 29th, 2011 @ 11:34am

    conflict

    We have a long history of conflict amongst the branches of government. It started with Madison, if not earlier, with an attack on the Supremes. In each case the Supreme court has diligently countered the attempt. It requires only someone to sue. The unfortunate part is that lawsuits require money. I can only hope that EFF is listening and takes action.

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    -_-, Jan 29th, 2012 @ 2:29pm

    the way i see it if this keeps up the usa is really not a free country it never really was all they care for is money and the law Applys to the little people while if your a rich person and corrupt like a good % of the cops in american and pollectisons get away free http://www.youtube.com/watch?v=3JD8eoeFCLc&feature=related
    this is something what i mean if you want to get back to america it would be better to start by boycotting hollywood and all the movie theators in america and around the world..

     

    reply to this | link to this | view in thread ]


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