Looking At The Details Of The Released Leaked ACTA Draft

from the still-doesn't-look-good dept

It’s been a few days now since the latest draft of ACTA leaked, and people are looking through it in detail. Michael Geist has a very detailed take on how the stumbling blocks appear to be a fight between the US and EU negotiators over how broad ACTA should be. Believe it or not, the US negotiators are the ones trying to limit it by taking out patents and limiting the scope to “just” trademark and copyrights. Of course, even that seems to go too far. If this is an anti-counterfeiting agreement, it should be limited to trademark, which is what counterfeiting is about. The European negotiators, however, are pushing to include all intellectual property.

Of course, the US has its own problems as well, in that it appears to be using the transparency issue as a negotiating ploy. That is, despite all the ridiculous claims from the USTR that it supports ACTA transparency, it appears to be telling negotiators it will only allow transparency if it gets what it wants. How very childish. Meanwhile, KEI is pointing out that (again, despite claims to the contrary), ACTA’s text (pushed by the US) on injunctions appears to contradict US law, by taking out the exceptions and limitations.

Over in the EU, some have pointed out that EU Commissioner De Gucht appears to have lied to the EU Parliament in his briefing on ACTA. During that briefing, he apparently claimed that there will not be a definition of “commercial scale” in ACTA. But, in the leaked text? There is, in fact, a definition. And, part of the language was contributed by EU members. Nice work.

Meanwhile, Glyn Moody points us to an analysis of the document that shows how the wording for sections on third party liability and on damages would almost certainly require a change to existing UK law (and, I would argue, would lock in certain aspects of US law). These are the same points that have been raised before, but are brushed off by ACTA defenders who insist that, technically, ACTA can’t force the US to change its law. This is weaseling out of the issue. That it can’t, by itself, require such changes, doesn’t mean that it won’t be used, forcefully, as the lever to force those changes. At the same time, it would lock in highly dynamic aspects of case law, such as third party liability, that haven’t actually been reviewed by Congress. That’s problematic because (in theory) Congress could decide to change the laws on third party liability. But with ACTA in place, we’ll immediately hear screaming about our “international obligations.”

Update: A few folks have sent over another detailed analysis of the new leak by Kim Weatherall, who compares it to the previous draft. Definitely worth reading.

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Comments on “Looking At The Details Of The Released Leaked ACTA Draft”

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Michael Khrushchev says:

We shall live up to our international obligations!

We shall live up to our international obligations!

Because everyone who doesn’t agree is an “enemy of the people.” We should want and desire to restore the old order, and for this purpose, those against us are “the enemies of the people” had linked up with the forces of reaction internationally.

As a result, several hundred thousand honest people will need to be tested through the IP tribunal system. And yes, everyone will have to live fear for several years until power and legitimacy is gained. Think of the moment there would be a knock on the door in the middle of the night and that knock on the door from the copyright police. Those not liking it should be annihilated, honest party members, irreproachable people, loyal and hard workers for our cause who had gone through the school of revolutionary struggle under Lenin’s leadership.

– Nikita Khrushchev on Joseph Stalin
Edited oh-so *very* slightly to be relevant to the ACTA topic.

Anonymous Coward says:

Re: fake leak

“how do we know this isn’t just a fake leak by the anti-IP people trying to make ACTA look bad?

i’m sure all will be clear”

If that’s the case the govt is free to correct the mistakes by releasing the true docs. Until then I will assume the leaked one is the accurate one being that it probably is and I see no good reason why not to assume this. Otherwise I will reasonably assume the govt is hiding something exactly because they have something to hide.

Kevin (profile) says:

Con. Law 101

When the US signs a treaty, that treaty becomes US law. If it contradicts already established US law, the treaty trumps it. The legal rule is, the most recent action (either the signing of the treaty, or the passing of a US law) is what is the current law because acts of Congress and treaties have the same level of authority. Treaties always trump state laws, and never trump the US Constitution.

If the ACTA remains just that, an agreement, it would have no impact on contradictory US laws. But if it becomes a treaty, it would become US law (unless parts are held unconstitutional).

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