US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like… So How About Everyone Else?

from the ignore-away dept

It’s been amusing to watch supporters of ACTA who repeatedly claim that it’s not going to matter if ACTA actually disagrees with US law, because, as an executive agreement (rather than a treaty) it “can’t” change US law. Of course, they ignore the history of such things, where suddenly lobbyists start talking up our “international obligations.” But, it appears some in the US are now claiming that Article 1.2 provides something of a giant loophole, where it states:

“Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”

We’ve even had people in our comments highlight that section, as a clear indication that each country need not change its laws. And some of the US negotiators are specifically using that clause to say that it can sign the current agreement and then point to that clause to ignore whatever they don’t like in ACTA. Of course, this response has some scratching their heads. If the US can point to that clause an opt out of any clause that they don’t like why can’t other countries do the same? And, if it’s true that any country can use that clause to effectively opt-out of anything they don’t like in ACTA, what’s the point of ACTA in the first place?

Of course, the reality, again, is that it’s because down the road, when everyone’s forgotten the promises that ACTA won’t change anyone’s laws, the lobbyists will step in and do the whole “international obligations” bit. What’s amusing to me is that the very same commenters on our site who insist that ACTA cannot change US law, and who have pointed to Article 1.2 as proof, were also the very same folks in our comments a few months ago pointing to the demands that Canada change its copyright laws by claiming “international obligations” concerning WIPO/TRIPS — even though WIPO/TRIPS, similarly, is supposed to let each country set up its laws “within its own legal system and practice.”

It’s basically all a shell game: say whatever you can to get the damned thing signed, knowing that after it’s signed, it’ll be much easier to apply lobbying pressure down the road.

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Comments on “US Basically Says It'll Ignore Anything In ACTA That It Doesn't Like… So How About Everyone Else?”

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Anonymous Coward says:

“the lobbyists will step in and do the whole “international obligations” bit. “

What do you expect from lobbyists. If these people had half a brain they would do something more productive but they’re too stupid to do something more productive, no one would hire them. So the only way for them to make as much as they do is to compromise ethics and become corporate lobbyists.

Anonymous Coward says:

I am disappointed that in their haste to criticize ACTA KEI, which to date has raised a ruckus because of 28 USC 1498, did not note Section 2.X(2) of ACTA that crafts an exception to actions against governments…thus recognizing and preserving longstanding domestic and international principles of “sovereign immunity”.

I can understand why the USTR has reservations for including patents within ACTA, but KEI’s opinions concerning this issue are, to the extent it keeps relying on 28 USC 1498, are plainly wrong.

James Love (profile) says:

Re: 28 USC 1498

Dear Anonymous Coward. The language on injunctions was in fact changed in response to our work on this issue, where we focused a lot of attention on 28 USC 1498. Actually, quite a few things have been changed in the ACTA text, and we are trying to change the things that have not yet been fixed. But where do you see anything in ACTA regarding “sovereign immunity”? The language you cite, which comes from Article 44.2 of the TRIPS, says you have to pay money if you infringe — consistent with 28 USC 1498, but contrary to other federal statutes, and US law for state governments, including state run Universities. Indeed ACTA broadens, by a lot, the circumstances when you have to make damages available for infringing activities.

Anonymous Coward says:

Re: Re: 28 USC 1498

28 USC 1498 is in part a waiver of sovereign immunity by the USG for certain of its acts and those of its contractors. One does not need to say “I here waive…” in order to affect such a waiver.

State governments have successfully argued against federal preemption. However, it is clear that in the relevant cases the courts have never held that preemption is foreclosed; only that the bases articulated by Congress were unsupported by the then evidentiary record. Even absent federal preemption, there are still a host of state and federal laws that can quite easily come into play an avoid conflicts with the agreement.

James Love (profile) says:

Re: Re: Re: 28 USC 1498

The United States federal government has waived its sovereign immunity, insofar as agreeing to pay for infringements of patents, copyrights, plant breeder rights and semi conductor designs by statute. State government have other options. Florida just refused to pay anything when it infringed a patent, and the Supreme Court found in their favor, a result that has not been reversed since. While it is true that the court could reverse itself, someday, since 1999 the law has been very clear that damages are not available from state institutions. One benefit of this is in the area of research activities at State Universities, which are not subject to damages for patent infringement. There is no provision in ACTA to allow this, and thus ACTA is inconsistent with US law, on this point. And, in other areas too. Plus, areas where legislation is possible, such as patent reform or orphan works legislation. You can deny there are inconsistencies, or acknowledge that lots of people don’t care, because ACTA, an agreement about the enforcement of IPR, has no mechanisms to enforce its own norms. Developing countries, on the other hand, will likely be subject to a lot of pressure to implement the ACTA norms. As one former USTR official told me, when I complained about U.S. trade officials telling developing countries that parallel trade was contrary to TRIPS, “its not about the truth, its about power.” In some cases, this means, the power to create norms that are designed to apply only to others. Unfortunately, if you can exempt yourself from the laws you create, some will be tempted to create unjust laws.

Anonymous Coward says:

Re: Re: Re:2 28 USC 1498

Re “Feds”: They are on the hook one way or another (i.e., either a waiver of sovereign immunity theory or a Fifth Amendment Taking). As for Fed contractors, they are in a more precarious position. If Fifth Amendment applies (which it should in view of Jacobs v. US by SCOTUS in 1933), contractors would be off the hook. However, if sovereign immunity applies it is an entirely different matter. See: Zoltek v. US decision on 02/09 by Judge Damich of the COFC. The contractor is now a named defendant in a patent infringement suit pending before the Federal District Court in Atlanta.

Yes, states do present a wrinkle in some, but not all cases. Caselaw does recognize immunity waivers in certain instances. As for those where a waiver does not apply, I know of no state that does not provide under state law the full equivalent of a Fifth Amendment taking. If by a stretch of the imagination such an equivalent is not available, there are other legal doctrines that may be usefully employed (e.g., an in rem action, among others).

While federal and state actions would not offer the opportunity for injunctive relief as a general rule, TRIPS does recognize infringement by governments as a special exception to the rules that apply to private parties, and establishes a protocol that generally reflects taking principles.

One final comment apart from waivers. I personally do not buy in to the argument that the enactment of IP laws in underdeveloped nations is necessarily a bad thing. Quite recently I read a research paper wherein the collected data found a correlation between the enactment of such laws and economic improvement in such countries. Unfortunately, I did not keep a copy so I am unable to provide a cite. I did read it, however, within the past month or so.

xs (profile) says:

Don't worry about other countries using that loophole

If they do as much as think about it, US will begin to clobber them from all front, business, political, and possibility even military. You see, such loopholes are allowed to be used by US only, and maybe a few select allies of US. For everyone else, it’s just something to make them think there’s no danger in signing the treaty.

Think about all those treaties US government signed with Native Americans, and how many loopholes the Indians were able to use. The ACTA is just a modern version of those.

James Love (profile) says:

WTO interpretations of this language

Everyone on the wrong end of a TRIPS complaint at the WTO has tried to claim that this language allows them to avoid specific obligations in the TRIPS, and this always fails. The WTO provides a few examples here: “Article 1.1 gives Members the freedom to determine the appropriate method of implementing those two specific requirements, but not to ignore either requirement” I have more examples here:

out_of_the_blue says:

"what's the point of ACTA in the first place?"

To provide a semblance of legality for The Rich. They’re fond of corporate legalisms that pass under “color of law” until they’re de facto tyranny, enforced by uncaring epsilon minuses.

And why the surprise? At least a couple weeks ago on this topic, I wrote here that regardless of what’s in “ACTA” that those masquerading as the gov’t will just do whatever they can get away with.

Steve says:


Dear anonymous coward,
It’s generally a good idea for a journalist to spell out the subject of an article before using it in its abbreviated form. It makes it easier for casual readers to understand what you are talking about. Contrary to popular belief in certain circles, very few people actual pay attention to these issues and won’t have any prior knowledge of ACTA.

I’m assuming that you are referring to the “Anti-Counterfeiting Trade Agreement (ACTA)” and not the American Council of Trustees and Alumni (ACTA) or the Alliance for California Traditional Arts (ACTA).

The Devil's Coachman (profile) says:

I already plan on doing that.

Yessir, if there’s anything I don’t like about this law, I plan on ignoring it too, and since there’s nothing I like about it, that simplifies matters greatly. Of course, if they disagree, and wish to sic lawyers on me, I will happily send said lawyers to their ultimate destination, which is a place where it is much warmer than what they’re accustomed too – even the ones who live in Arizona.

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