The Power Of International Trade Agreements To Prevent You From Owning What You've Bought, And Why This Must Be Fixed

from the just-as-we-suspected dept

Back when the US was negotiating ACTA, we were among those who raised the alarm about just how troubling this trade agreement was -- negotiated in back rooms by the USTR, with details that were kept in secret until they were locked in. In response, many of our critics said that we were overreacting, since ACTA was merely an "executive agreement" which (1) could not bind Congress to anything and (2) would not require any changes to US law, so it was "no big deal." In fact, we were directly told that Congress would not feel bound by such things, so we should shut up with our "same tired arguments," which were nothing but a "chicken little mentality" based on "what ifs."

Of course, part of our very specific concern about ACTA was that even if it required no direct changes in law, it very clearly locked in existing problematic laws, making it much more difficult to fix those problems. And while it did not technically "bind" Congress, the second that anyone in Congress proposed a law that went against the international agreement, we'd hear screaming from the usual crew of copyright lobbyists about how Congress was doing the most horrible of horribles in "violating our international agreements." Of course, they'd leave out the fact that they wrote or heavily influenced those agreements as a way to directly route around Congress.

For all the claims of Chicken Littles and what ifs, in the last few weeks, the "hypothetical" situations we discussed have become very, very real, and have highlighted why it's so problematic that the USTR is including copyright and patent issues in international trade agreements. First, as we noted a few weeks ago, on the issue of phone unlocking, some existing US trade agreements have made it difficult to actually fix the issue. In particular, we named KORUS, the free trade agreement we signed with South Korea half a decade ago, which included a number of copyright provisions, pushed by the entertainment industry (who had flipped out because South Korea was one of the first countries blanketed in broadband). The end result of that, however, is that it would go against that agreement to actually fix the problem (as the White House claims it wants) of phone unlocking being illegal.

Now, as Shirwin Siy correctly points out, Congress is not technically bound by such agreements and can overrule them:
First of all, trade agreements don't dictate what laws Congress can and can't pass. If they're executive agreements, they can't override any laws passed by Congress in the past, and even if they're executed as treaties, they can be superseded by later acts of Congress. Just like Congress can pass a law that overrides an earlier law, it can pass a law that overrides an earlier treaty.
That's technically true, but the reality is not so easy. Soon after my post went up, I started hearing from people all over DC about this issue. In the past few weeks, in talking to numerous capitol hill staffers, as well as with a variety of others involved in the discussions, one thing has become clear: while some in Congress really wanted to do a comprehensive fix on unlocking, the realization that international agreements get in the way may have scuttled those plans entirely. They recognize that Siy is correct, and that Congress is not technically bound, but what becomes clear is that the political reality is, in fact, very different. Proposing a bill that goes against an international agreement is seen as a no-no and the political fight it would take to get that bill to actually do anything just probably isn't worth it.

So, there we have a very real and very tangible example of an agreement that technically didn't "change" our laws, now locking us in to a bad situation.

And... it could be even worse. For all the talk of how Congress isn't actually bound by the USTR's negotiations, it appears that someone forgot to tell that to certain members of the Supreme Court. When the Kirtsaeng case came out last week, the dissent, written by Justice Ginsburg, repeatedly cited international agreements for her interpretation of the law, even though those agreements aren't supposed to define or bind the law. John Bergmayer points out how wrong this is:
It is thus relevant that Justice Ginsburg writes, in dissenting from the majority opinion, that "[u]nlike the Court's holding, my position is consistent with the stance the United States has taken in international trade negotiations." But trade negotiators do not get to decide what the law is: Congress passes statutes and courts interpret them. The USTR is not part of this workflow. If trade negotiators have ever taken positions that are inconsistent with Kirtsaeng then those positions are now, and always have been contrary to US law. I would make a similar argument even if Kirtsaeng came out the other way: trade negotiators should not try to anticipate how contentious legal battles will turn out. They should steer clear of these areas entirely and allow the system to do its work.
So even though the law is clear that the USTR's secretive negotiations (often driven by the copyright industry) cannot actually make the law, even at least three Supreme Court justices seem confused on this point.

And it could get even worse. That's because with the still secretive TPP agreement, that is supposedly nearing completion, a look at what little leaked text there is on the issue of copyright shows that the TPP disagrees with the Kirtsaeng ruling and would require the US to kill off first sale rights on foreign made products to "meet our international obligations." The leaked text includes the following:
“Article 4(2). Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram.”
And while the TPP is not yet in effect, Sean Flynn (at the link above) notes that some other free trade agreements negotiated by the USTR already have similar provisions. That's why Ginsburg was so concerned about our supposed "international obligations" in her dissent on Kirtsaeng. Since copyright lobbyists are already pushing to overturn the Supreme Court's ruling with new laws, you can bet that we'll soon be hearing claims that we need to do this to "meet our international obligations."

The point of all of this? The USTR shouldn't be involved, at all, in negotiating IP issues in any such international agreements. Not only is it antithetical to their stated purpose and despite the law being to the contrary, many in both Congress and the Supreme Court, really do feel that we are "bound" by those agreements, even if they were never approved by Congress and cover topics, such as copyright, which only Congress has the mandate to create and change. The "hypotheticals" we discussed around ACTA are no longer "what ifs," but are very real and should be a major concern.

With an attempt at real copyright reform on the table, the fact that the USTR may be seen (whether legally or not) as tying the hands of Congress should be reason enough to simply take those sections out of any and all trade agreements. They don't belong there and they're clearly causing significant problems for the public's best interests within the US. The USTR process is not transparent. It does not involve the public and is not responsive to the needs of voters. That Congress is then effectively unable to do such basic things as allowing the public to unlock their mobile phones (even at the White House's request) or to guarantee that we actually own what we've bought, show just how problematic the situation has become. A few people in Congress are now waking up to this fact, but too many are still oblivious. It's amazing that Congress has allowed the USTR to cut off its own power in this manner.

To fix this, the USTR needs to reject any language around intellectual property in any ongoing international agreements, and must look to pull that language out of earlier agreements. It just doesn't make any sense. Congress needs to assert itself, and let the USTR and the executive branch know that only it has say over copyright and patent laws, as per the Constitution. And, finally, if the White House truly believed what it said about mobile phone unlocking, it should order the USTR to reverse course -- and, as part of that, to start being much more transparent and responsive to the public as it negotiates any such agreements.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    rw (profile), Mar 27th, 2013 @ 10:37am

    "...it should order the USTR to reverse course -- and, as part of that, to start being much more transparent and responsive to the public as it negotiates any such agreements."

    Never happen.

     

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    identicon
    Anonymous Coward, Mar 27th, 2013 @ 11:36am

    How are things going there in Fantasyland, Masnick?

     

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      Anonymous Coward, Mar 27th, 2013 @ 11:46am

      Re:

      Back to scraping gunk off the underside of that bridge.

      No one told you that you could stop.

       

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      Rikuo (profile), Mar 27th, 2013 @ 11:58am

      Re:

      Why don't you tell us, you miserable excuse for a human being? You can get out of FantasyLand once you pass Debate Class and can actually write a comment that is more than just a very lame attempt at an insult.

       

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        identicon
        Anonymous Coward, Mar 27th, 2013 @ 12:09pm

        Re: Re:

        Are you so slow that I really have to state the obvious? This is more Chicken Little FUD, with Masnick thinking he can undo the way this nation negotiates trade agreements because (and despite what Sherwin Siy says) maybe, possibly this could prevent Congress from doing what he wants them to do with IP law.

        I don't know why you clowns think that enabling you to freeload is some sort of shared national priority. It's not.

         

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          Anonymous Coward, Mar 27th, 2013 @ 12:15pm

          Re: Re: Re:

          Hahaha, you should listen to yourself. Try reading that again. LOL.

           

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          Jackn, Mar 27th, 2013 @ 12:39pm

          Re: Re: Re:

          Its our right as owners of this country. We decide how its going to go down.

           

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          Anonymous Coward, Mar 27th, 2013 @ 1:14pm

          Re: Re: Re:

          "I don't know why you clowns think that enabling you to freeload is some sort of shared national priority. It's not."

          First off we're not worried about the whole freeloading issue here.

          Second off, let me help you since you obviously missed the point of the article:

          "one thing has become clear: while some in Congress really wanted to do a comprehensive fix on unlocking, the realization that international agreements get in the way may have scuttled those plans entirely."

          Congress can't act the way IT wants to because it can't violate international agreements or everyone will start renigging on the ones we've set up. In other words, the executive branch is pushing laws onto the legislative one.

          The problem has nothing to do with freeloading or unlocking cell phones, it has to do with the Constitution and checks and balances.

           

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          Rikuo (profile), Mar 27th, 2013 @ 2:12pm

          Re: Re: Re:

          And how does "freeloading" matter when we're talking about unlocking phones?

           

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      Baldaur Regis (profile), Mar 27th, 2013 @ 12:29pm

      Re:

      Are we doomed to plod the same tread as our forebears? May we raise our sights above the mud and see a better world, and in the dreaming of it make it real? For make no mistake - the machinations of the USTR is a deliberate continuation of the effort to turn copyright into something predatory. Stay a rabbit, if it pleases you...or find your voice, and become larger than you thought.

       

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    Anonymous Coward, Mar 27th, 2013 @ 11:39am

    We must not allow treaties to become more important than the US Constitution or the best interests of the American People. To place either of those behind international treaties should be considered nothing less than treason.

     

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      Anonymous Coward, Mar 27th, 2013 @ 12:10pm

      Re:

      We must not allow treaties to become more important than the US Constitution or the best interests of the American People. To place either of those behind international treaties should be considered nothing less than mindless hyperbole.

      There, FTFY.

       

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    Anonymous Coward, Mar 27th, 2013 @ 11:56am

    Would be nice to see the Supreme Court rule on if executive agreements are constitutional...

    They ruled that they are law just like treaties, but they don't require the Senate's approval, so basically they allow the President/Administration to make whatever laws they want.

     

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      Anonymous Coward, Mar 27th, 2013 @ 12:02pm

      Re:

      Wow, that is a good idea.

      Now if I didn't believe the Supreme Court wouldn't touch it with a 10 foot pole.

       

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    Anonymous Coward, Mar 27th, 2013 @ 12:09pm

    Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram [b]made without authorization[/b], or [b]made outside that Party’s territory[/b] with the authorization of the author, performer, or producer of the phonogram

    Highlighting the circumstances they set up. Made without authorization is unspecified, but it should be pretty clear that they mean illegal copies. No problem there.

    The other circumstance seems like a complete anti-Kirtsaeng law. It is a very problematic sentence when we deal with anything digital, but for physical goods it is giving the original author the chance of lawfully taking tarifs. In both cases it seems very unfortunate for the creative industry jobs the AAs are claiming to try to protect.

     

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    Killer_Tofu (profile), Mar 27th, 2013 @ 12:13pm

    Funny thing that Free Trade

    Why do they get to call it a Free Trade agreement when it is the epitome of restricted trade?

     

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      Anonymous Coward, Mar 27th, 2013 @ 12:16pm

      Re: Funny thing that Free Trade

      I believe that the 'free' means free of tariffs, quotas, subsidies, etc.

       

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      Anonymous Coward, Mar 27th, 2013 @ 12:21pm

      Re: Funny thing that Free Trade

      The government has outdelegated the trade restrictions to private companies and it is essentially exactly the same as before, with the exception that the companies enforcing it gets a cut. It is the typical modern policy of "if you can get plausible deniability, take it."

      Anonymous Coward 2351: "Hey, that is not free trade!"
      Politician: "What are you talking about? We have no government tariffs, so it is the definition of free trade!"

       

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      Anonymous Coward, Mar 27th, 2013 @ 1:23pm

      Re: Funny thing that Free Trade

      Much like the 'Patriot Act' had nothing to do with patriotism. It sounds good to vote for.

       

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        Killer_Tofu (profile), Mar 28th, 2013 @ 10:02am

        Re: Re: Funny thing that Free Trade

        I believe all three AC comments accurately conveyed certain points and aspects of the overall truth that is a "free" trade agreement.

         

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    iambinarymind (profile), Mar 27th, 2013 @ 12:17pm

    I didn't sign...

    Mike, when it comes to statements such as this:

    "the free trade agreement we signed with South Korea half a decade ago"

    ...it's best to state "the US government", or something to that effect, instead of using the all encompassing "we".

    I didn't sign it. You didn't sign it. The individuals that call themselves "government" and claim a monopoly on force signed it.

    I prefer consensual relationships and voluntary exchange.

     

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    out_of_the_blue, Mar 27th, 2013 @ 12:27pm

    "at least three Supreme Court justices seem confused"

    Well, here Mike and I seem to agree: statute and trade "law" is now so tangled that no one understands it or can unscramble it to be reasonable. -- That's what lawyers do, and as Shakespeare wrote "first, kill all the lawyers".

    That's why we've got to return to first principles: common law, based on individual rights NOT corporate rights, equality and fairness. Of course, that'd require overturning the entire Establishment, but it's been done before.

    Mike's mistake here is his usual notion that tweaking can fix the mess of decades. And it's laughable to expect this or any likely administration, which are always controlled by banksters and other Rich, to change this or any of their monopoly privileges.

    Let's see. Here are some disclaimers to handle the frequent false jibes directed at me (they may seem random, but I get 'em regardless of topic):

    ) Having mentioned monopoly: copyright is indeed a monopoly for the creator, and should be for a fixed, short time.

    ) I believe that corporate fat cats, ESPECIALLY those at RIAA and MPAA, should be prosecuted for their past crimes, given a fair trial, and swiftly HUNG by the neck until dead.

    ) My using Hitler as BAD example in no way suggests that I think he was "a good guy".

    ) For any time where you think that I'm not a Populist, devoted first to freedoms and rights for working people, you're wrong. I'm up front that my notion of how to achieve freedom is to limit The Rich from obvious crimes, not least that of living without laboring.

     

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      identicon
      Anonymous Coward, Mar 27th, 2013 @ 12:32pm

      Re: "at least three Supreme Court justices seem confused"

      Alright, who are you and what have you done with OOTB???

      I'm so confused...

       

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        out_of_the_blue, Mar 27th, 2013 @ 12:41pm

        Re: Re: "at least three Supreme Court justices seem confused"

        @ "Alright, who are you and what have you done with OOTB???

        I'm so confused..."

        Yeah. That's the purpose of the trolls here, to confuse. I'll take that as vaguely implying to maybe read more than first line of my posts, sometime, by someone unknown.

        And so I'll give an already favorite tagline, with thanks to whoever trolled me yesterday and prompted it:

        Take a loopy tour of Techdirt.com! You always end up same place!
        http://techdirt.com/
        Techdirt. It's where the wrongness is.
        08:41:14[j-682-5]

         

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          identicon
          Anonymous Coward, Mar 27th, 2013 @ 7:36pm

          Re: Re: Re: "at least three Supreme Court justices seem confused"

          No kidding. About the best thing you can achieve with everything you post here is confuse.

           

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          identicon
          Anonymous Coward, Mar 27th, 2013 @ 10:14pm

          Re: Re: Re: "at least three Supreme Court justices seem confused"

          They're trying to take away your identity so your comments are judged entirely on their own merits.
          Too bad for you.

           

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      Gwiz (profile), Mar 27th, 2013 @ 1:53pm

      Re: "at least three Supreme Court justices seem confused"

      I'm up front that my notion of how to achieve freedom is to limit The Rich from obvious crimes, not least that of living without laboring.


      Interesting notion, Blue.

      How would you go about achieving this in a capitalistic society? Penalize people for becoming TOO successful? Where would the incentives to grow the economy come from?

      Sounds suspiciously like socialism to me.

       

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    Anonymous Coward, Mar 27th, 2013 @ 12:39pm

    When will the MAFIAA write into a trade treaty that they are the executive branch of the US government, and can shut down congress?

     

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      Anonymous Coward, Mar 27th, 2013 @ 12:50pm

      Re:

      Don't you know the current succession path?

      President* -> VP* -> Speaker* -> etc*


      *if the governement shuts down control defaults directly to the MAFIAA, otherwise they have to pay the appropriate puppets for control.

       

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      That One Guy (profile), Mar 27th, 2013 @ 1:27pm

      Re:

      Why be the king when you can be the one pulling his strings? All the perks of being the ruler, and the puppet gets the blame for anything you do.

       

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    Anonymous Coward, Mar 27th, 2013 @ 1:06pm

    AC #8:

    ...................../´¯/)............
    ...................,/¯../.............
    ................../..../...............
    ......../``/´¯/'---'/´¯¯`•¸........
    ......./'/.../..../......./¨¯\........
    ......('(...´...´.... ¯~/'...')......
    .......\.................'...../.......
    ..........\..............(............
    ............\.............\...........

     

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    Nick Dynice (profile), Mar 27th, 2013 @ 1:20pm

    I have created a petition at WhiteHouse.gov: http://wh.gov/Hbjv

    WE PETITION THE OBAMA ADMINISTRATION TO: restrict the USTR from negotiating and nullify any past international agreements that fall under intellectual property.

    Entertainment and Telco lobbyists have worked their way into the Office of United States Trade Representative, writing protectionists clauses into international trade agreements such as TPP and ACTA. These agreements seek to rescind consumer protections such as the First Sale Doctrine (which allows you to sell what you own), and they have already restricted mobile phone unlocking. All in the name of "job creation."

    Without an act of Congress these agreements cannot be written into law, and at that point are not enforceable. However, members of Congress do not want to be seen going against an "international agreement" for political reasons, even thought it is entirely within their discretion to do so.

    If you are sick of lobbyists restricting our liberties, please support this petition

     

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    Rekrul, Mar 27th, 2013 @ 3:42pm

    To fix this, the USTR needs to reject any language around intellectual property in any ongoing international agreements, and must look to pull that language out of earlier agreements. It just doesn't make any sense. Congress needs to assert itself, and let the USTR and the executive branch know that only it has say over copyright and patent laws, as per the Constitution. And, finally, if the White House truly believed what it said about mobile phone unlocking, it should order the USTR to reverse course -- and, as part of that, to start being much more transparent and responsive to the public as it negotiates any such agreements.

    I'm sure they'll get right on that just as soon as they solve the problem of turning lead into gold...

    A small part of me wishes that the government would give the corporations everything they want, just so I could watch the economy and the country go down the toilet to the point where people would riot in the streets. Sadly, that's probably what it would take before people in the US get fed up enough to demand real change.

     

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      That One Guy (profile), Mar 27th, 2013 @ 5:19pm

      Re:

      Sadly true, as long as people have their 'reality' tv, their docu-dramas, someone to blame, and aren't personally affected by things, they really don't care in most cases.

      Of course, a large chunk of this is due to where most people get their 'news', and more to the point who runs the places that are putting out the news.

       

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    horse with no name, Mar 27th, 2013 @ 5:18pm

    The real effect here isn't that you would get your "rights" back, but that the people of the poorer countries would suffer. It would be a result of prices for products being normalized to the highest rate, raising prices to unsupportable levels in smaller markets.

    The net effect would be the most needy people not getting access to the products, and the least needy people getting extra "rights" that won't really mean much.

    WTG!

     

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    Anonymous Coward, Mar 28th, 2013 @ 4:40am

    We the people

    Can we get something up to demand the USTR be shut down or at least reigned in?

     

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    Nick Dynice (profile), Mar 28th, 2013 @ 11:23am

    The only thing a real free market economy needs to restrict is the creation of an artificial monopoly.

     

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