USTR Insists Gov't Isn't Keeping ACTA Secret

from the up-is-down,-black-is-white,-you-said-what-now? dept

Stan McCoy, the assistant US trade rep, is apparently the new point man from the USTR office on jaw-dropping political doublespeak about ACTA. You may recall a few days back when McCoy insisted that there was a lot of misrepresentations about ACTA, but failed to clarify any of them. Instead, he started talking about the dangers associated with counterfeiting (something no one denies) and then simply wrapped copyright infringement into that — even though copyright infringement and counterfeiting are entirely different. Now, McCoy has gone even further. Jamie Love points us to a letter he sent the Financial Times, where McCoy insists that there is great openness about ACTA. He kicks off with another bogus attempt to blur the lines between counterfeiting and copyright:

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

See the switcharoo in the middle there? He starts of talking about intellectual property… but then in the middle lumps counterfeiting and infringing (which he falsely calls “piracy” even though he’s not talking about what’s happening off the Somalia coast) together, and then at the end he’s really only talking about counterfeiting, but to the untrained observer, they still think he’s talking about copyright infringement. That’s political bullshitting. And I won’t even get into the evidence that raises serious questions about whether his first sentence is true at all, but will mention there’s a lot of data that suggests IP actually limits jobs and slows down innovation and creativity. But, at this point, I think McCoy has already established that the USTR is not a fact-based organization.

The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy — not to “transform” already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Okay. Pick your jaws up off the floor. That last sentence is so ridiculous and so false; it’s amazing he thought that he could get away with it. Exactly which governments have “sought public comments” on ACTA? The answer? None. Why? Because no government has yet revealed what ACTA is officially. Hell, in the most recent ACTA negotiations, held in Mexico, the government wanted to force the public to sign NDAs just to attend a public meeting, and then had industry representatives mocking public concerns and demanding that a blogger leave the proceedings for live Tweeting the meetings. Yes, “sought public comments” indeed. Does he think that if he says day is night people just believe him? And the idea that the government is “far from keeping [ACTA] secret” is pure hogwash. A comparison of ACTA secrecy to similar negotiations suggest that ACTA is being kept exceptionally secret.

Furthermore, if the laws are already strong, then what’s the point of ACTA?

Among other things, the summary states clearly that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties”.

Oh, well, if the summary states it, then why didn’t you say so in the first place? Obviously there’s nothing to worry about at all. Except… it doesn’t appear that the actual documents follow what the summary says. Of course, we’ve only seen the “leaked” documents, but they certainly suggest plans to interfere with fundamental rights and civil liberties on a pretty widespread basis. Supporters of ACTA even talk about “dragging countries in the 21st century” by forcing on them DMCA-type laws and requiring secondary liability that flat out violates basic fundamental rights. The fact that the “summary” says so isn’t convincing, Mr. McCoy. It just highlights that you’re hiding what the document actually says.

So, come on, Mr. McCoy. Stop treating concerned citizens like we’re idiots and maybe respond to the actual concerns of citizens around the world.

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Comments on “USTR Insists Gov't Isn't Keeping ACTA Secret”

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56 Comments
Anonymous Coward says:

1. Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.

2. For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?

hegemon13 says:

Re: Re:

“For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.”

No, there is not an overlap. You’re just talking about one action that breaks two laws. A bootleg DVD is copyright infringement in many cases. Selling a DVD using studio trademarks, such as title, logos, and artwork, is counterfeiting. The case of counterfeiting would still be counterfeiting if the disc inside was blank. The case of copyright infringement would still be copyright infringement (but not counterfeiting) if you labeled a burned disc with a Sharpie and sold it in a paper sleeve.

So, no overlap there. Just one action that can, conceivably, be two separate violations.

Anonymous Coward says:

For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?

Can’t be answered smart guy. NO ONE knows what’s in ACTA.
It’s only in the discussion that the proponents hint that such issues may be on the table, due to the blurring,contrary to your first point.

You were saying?

jhn says:

Sure, #4. How about mandatory 3 Strikes, sold as “enforcement” rather than “substance” even though it imposes new liability on new parties?

How about codifying secondary liability, a judge-made doctrine found in no statute, in the US and around the world? Again, this will be sold as “enforcement” and not “substance,” even though it makes a formerly not-liable party subject to legal liability.

ACTA is rife with proposals that make people liable for other people’s law violations.

RD says:

ACTA

“1. Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.

2. For my edification, are you able to identify specific sections of US copyright law (Title 17) that you believe will necessarily be changed in order to comport with ACTA?”

TAM, stop trolling as an AC.

1) Then why is ACTA SPECIFICALLY about counterfeiting? Why the secret backdoor-style additions and changes to copyright being piggy-backed onto it?

2) You keep asking this question, it keeps getting answered, yet you keep asking as if it wasnt. This has to to with the whole “harmonious” synchronizing of treaty terms. Once this gets put in place, EVERYONE must change their laws so they all match the treaty, basically.

RD says:

Re: Re: ACTA

“RD, please take your meds, that wasn’t me posting. If you can’t accept that other people might have an opinion opposite to yours, perhaps you should unplug your computer and get off the internet, because you are going to be disappointed very often.”

But why? You do it. You accuse me of being an AC and some other people all the time. I correct you, Mike has corrected you, and you still do. Guess its OK for TAMHOLE to do it, but oh no! Dont let ANYONE else! It TAM Ok’s it, its GOLD. If anyone else does the SAME THING, well then they are crazy, off meds.

In case you didnt already get it before, this is the definition of hypocrisy. TAM the amazing Hypocrite.

To the topic: WHAT has copyright to do with this treaty? And if its SO necessary, why wasnt it included as a main point before now? And why all the secrecy? Arent those who govern us supposed to INCLUDE us?

The Anti-Mike (profile) says:

Re: Re: Re: ACTA

walks like duck, quacks like duck, shits like duck, I call you a duck. You are more than angry enough to use VPN and other methods, so Mike wouldn’t know (unless he is the one cowarding, which would be totally awesome).

WHAT has copyright to do with this treaty? And if its SO necessary, why wasnt it included as a main point before now? And why all the secrecy? Arent those who govern us supposed to INCLUDE us?

I don’t KNOW at ALL. I am NOT sure WHAT you ARE trying TO ask ME.

Seriously, the government doesn’t include you (specifically or generally) in everything they do. You aren’t aware of all that is said in security meetings, you aren’t privy to everything discussed in cabinet, and you aren’t privy to everything discussed in a treaty negotiation.

Rather than hopping up and down and getting all ramped up about something you have no information about, why not save your energy for the point that the treaty is revealed and sent to congress for approval? If you really don’t like it, make a stink when it is time to stink. Right now you are just like a shark eating chum that other people are throwing out there, but there is nothing in the water to really bite. Save your energy for when it might actually matter.

btr1701 (profile) says:

Re: Re: Re:2 ACTA

> walks like duck, quacks like duck, shits like duck, I call you a duck.

Which is just what happened to you. But when people call you a duck, they’re paranoid and off their meds.

You’re basically saying, “I’m allowed to do it because by definition, I’m right, but no one else is because by definition they’re wrong.”

Your hypocritical double-standard is stunning to behold.

The Anti-Mike (profile) says:

Re: Re: Re:3 ACTA

If RD’s allegations about me being in “the industry” and taking orders from “overlords” was right, you would have a point. But as he is as wrong as they come, he doesn’t get to call me out on it.

I am not sure if it’s meds or a tin foil hat, but I know he is missing at least one of them.

btr1701 (profile) says:

Re: Re: Re:4 ACTA

> If RD’s allegations about me being in “the industry” and taking
> orders from “overlords” was right, you would have a point. But
> as he is as wrong as they come, he doesn’t get to call me out on it.

And if your allegations about RD using other screen names to hide his identity were right, you would have a point. But as you have offered up no proof whatsoever of that “fact”– indeed nothing but your own personal speculation and opinion– you don’t get to call him out on it.

It works both ways, my friend. Otherwise you become nothing but a hypocritical asshole and your credibility zeroes out completely.

RD says:

Re: Re: Re:2 ACTA

“walks like duck, quacks like duck, shits like duck, I call you a duck. You are more than angry enough to use VPN and other methods, so Mike wouldn’t know (unless he is the one cowarding, which would be totally awesome).”

I am going to throw this in your teeth EVERY time you open your yap and try to deny you ever said anything, or are anything but a paid industry shill.

If its good enough for you, its good enough for me.

By YOUR OWN WORDS, you are an industry shill. Even if they didnt actually hire you, you still are, you are just too stupid to be getting paid for it. But you ARE doing their job for them, and you ARE a shill.

Quack quack.

Richard (profile) says:

“Contrary to your assertion, there is overlap between copyright infringement and counterfeit goods. For example, a counterfeit DVD of a movie preserved under copyright most definitely is a copyright infringement.”

A counterfeit DVD of a movie under copyright is a counterfeit and NOT a copyright infringement because – if it is completely counterfeit then it would contain NO element of the original and thus it would be a pure counterfeit but not a copyright infringement. (EG a blank disc inside some fake packaging.)

On the other hand a complete copyright infringement. (i.e a perfect digital copy of the genuine product) that was labelled as “a copy of made by ” would be infringement but would not be a counterfeit.

The two things may sometimes (even often)occur together but that does not make them the same thing.

Oliver Reed was a drunk and an actor – but that does not mean that drunkeness and acting are the same thing!

jhn says:

More ways that ACTA substantively could change US law–fair use. The euro tendency is to have a list of activities and parties that are allowed, limitations and exceptions, rather than a flexible standard.

Content industry has bitched for years that fair use brings the US outside of Berne.

It could additionally attempt to bring “related rights” within international IP treaties, and thus change US law–where before int’l “copyright” was a subset of US law, copyright and related rights are typically a superset.

Is the US required to “enforce” rights that don’t exist in the US, but do in other countries? How about “moral rights of authors”?

What else. We shouldn’t trust b.s. talk about it being just “enforcement”–see the broadcast treaty, which created a NEW RIGHT in the guise of enforcing broadcaster’s somehow preexisting property interest.

jhn says:

Secondary liability, as an agency/tort principle applied to a copyright context is old, inducement is new. And all of it is judge made law. Note that when Congress stepped in, it limited ISP liability. A balanced policy argues against extending secondary liability for IP.

And anyway, secondary liability is substantive. Substantive substantive. Yet ACTA’s defenders keep saying that the treaty is just about “enforcement.”

ACTA won’t change US law because it can’t. Yet it will create an obligation for law to be changed, or at least guide interpretation. Eg, “avoid secondary liability, ISPs, by voluntarily enacting 3 strikes.”

All rumors and hearsay. Speculation would go away if the freaking negotiating texts were public.

RD says:

What?

“For one who is constantly prattling on about knowing what the law “is”, when in many (some might say “most”) instances your “is” “isn’t”, I am somewhat surprised that you fail to understand the most basic of priciples associated with what acts by the executive branch are treated as having the “force and effect of law” and what acts are not.

ACTA is in the “not” category, but then you already did not know that.”

Wait, are you trying to say that a treaty like ACTA does NOT carry the force of law? Because, thats blatantly untrue.

Anonymous Coward says:

Re: What?

ACTA is not a treaty and, thus, no matter what it may say it is not entitiled to the force and effect of law within the United States and those subject to its jurisdiction.

Federal “law” in its most general sense encompasses the US Constitution, federal statutues, treaties ratified by the Senate, executive agency rulemaking under the Administrative Procedure Act (Title 5), and precedential judicial decisions interpreting the foregoing.

ACTA fits into none of these categories. Thus, it is by its very nature incapable of creating new legal rights/obligations and of detracting from existing legal rights/obligations.

Being entitiled to no legal force and effect within the US, it is troublesome that certain individuals keep mistakenly characterizing it as something that will almost certainly alter the substantive law of the United States.

The various individuals associated with the USTR in the discussions are well aware of the forgoing. They are likewise well aware that they have no express or implied delegation of authority to negotiate provisions that would/could effect the legal rights/obligations of persons within the jurisdictional boundaries of United States law.

So, despite all of Mr. Masnick’s assertions to the contrary, his assertions are simply wrong.

RD says:

Re: Re: What?

“ACTA is not a treaty and, thus, no matter what it may say it is not entitiled to the force and effect of law within the United States and those subject to its jurisdiction.”

Oh wow. See, I knew there were people being paid by the govt to troll around and spread BLATANT FALSEHOODS about things like ACTA, but I never thought they would be so OBVIOUS about it.

First, you are lying. And if not, if you really believe that, then you are a fool.

ACTA is a treaty. Just put “ACTA treaty” into google and see the 356,000 pages that say so. Just a sampling:

Wiki: Anti-Counterfeiting Trade Agreement – Wikipedia, the free encyclopedia

PublicKnowlege: ACTA Treaty ‘Anti-Consumer and Anti-Innovation’ Groups Tell …

Consumerist: Leaked ACTA Treaty Will Outlaw P2P – The Consumerist

Wired: Copyright Treaty Is Policy Laundering at Its Finest

Cnet: Ep. 1099: Secret ACTA treaty could break the Internet video – CNET TV

Eff: Rein In ACTA: Tell Congress to Open the Secret IP Pact (Most disturbing of all, an entire section of the treaty is devoted to “rights management technology/the Internet,” …)

Slashdot: Slashdot | Leaked ACTA Treaty to Outlaw P2P?

Are you going to sit there and with a straight face claim that ALL of these places are WRONG, but YOU are right? Really?

Anonymous Coward says:

Re: Re: Re: What?

Are you going to sit there and with a straight face claim that ALL of these places are WRONG, but YOU are right?

To the extent various sources refer to ACTA as a “treaty”, then yes, they are wrong by referring to it as such.

See: Articles II and VI of the US Constitution.

And, in answer to your question Really?, yes, I do sit here with a straight face. This is a matter of constitutional law, and not Google articles that discuss matters in generality and do not reach constitutional issues.

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