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
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.