IP Legal Experts Say ACTA Is 'Inconsistent' With EU Law

from the but-of-course-it-is dept

It's been pointed out over and over again how ACTA would require many countries to change their IP laws, while locking in some other laws that are still very much in flux. However, many of the main proponents of ACTA have insisted that it won't really require any legal changes. Now a group of IP experts from around the globe have pointed out that ACTA is inconsistent with European law, and have written an open letter explaining why (pdf). While the letter does say that many of the most egregious problems with ACTA have been fixed, it does still note a variety of places where it seems inconsistent with the law -- despite promises that it wouldn't require changes in the EU.


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  1.  
    identicon
    Pixelation, Jan 24th, 2011 @ 10:44pm

    "IP Legal Experts Say ACTA Is 'Inconsistent' With EU Law"

    And this will stop them why?

     

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  2.  
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    Not an electronic Rodent, Jan 25th, 2011 @ 1:51am

    OMG

    I hadn't read ACTA and though I'd realised it was bad I didn't realise HOW bad. If this is just the problems that are incompatible with EU law (and let's face it EU law can be in some cases pretty draconian all by itself) this is downright scary!

    Perhaps I'm reading it wrong, which is possible since the actual provisions are present only by implication in the desciption of the problem. That's likely to put things in the worst possible light (god I hope so) but among other things it seems to say:

    "We the rights holders can accuse you of infringement of our rights but don't neccessarily have to give you the chance to dissagree and if you did it wouldn't do you any good anyway because there are now no legal uses of our property unless you've paid whatever we say it's worth wherever you happen to be standing for it and even then you're probably doing something we can say we don't like with it.
    We can accuse anyone we like of infrigement without bothering to come up with any evidence and have action immediately taken to stop whatever it is you are doing as well as grab any and all information we like about you (your medical records might be fun I guess we like a good laugh and it's really handy for discrediting defendants if they are stupid enough to contest our will) and we can send it to media outlets or just post it all on the internet if we like. Then we can have you arrested.
    Because region encoding didn't work we can now have you actually arrested for buying a DVD off Amazon.com instead of Amazon.co.uk which is nice because now we can keep the variable release dates and don't have to compete even with ourselves on price anymore so we can pick countries we don't like and charge them a fortune. You guys in the EU have had it too easy for the last few years with being allowed to buy from where we sell our own products cheaper and now we can get back to stitching you up again. Ha! Globalisation.. such a crock ... only WE get to be global sonny not you.
    Oh yeah and we can now block competition by claiming that the packaging looks similar or something because we've got more money that the people we're likely to be accusing and besides they don't necessarily get to argue about it."
    If it does turn out we were wrong (which lets face it is pretty unlikely because if we are accusing you that de facto means you're guilty of something - it's not like we need proof or anything and you might not get to provide any either) well... that's just tough. We really don't give a monkeys if you got locked up in the meantime, if it cost you a fortune to defend yourself against what turned out to be a random accusation or if you lost your business because we grabbed the stuff you bought fairly or if that photo we found of your embarrasing personal problem we found in our "discovery" made it onto the internet by random chance. That's just what you get for looking guilty.

    And this is the watered down version?? Did the original include provisions the removal of fingernails with pliers for suspected counterfeiters or something?

    Now can someone please carefully explain to me how I'm completely wrong about all that? I really really don't want to be right or even close.

     

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  3.  
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    The eejit (profile), Jan 25th, 2011 @ 3:13am

    Re: OMG

    That's actually a more charitable reading of it.

     

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  4.  
    identicon
    Rekrul, Jan 25th, 2011 @ 3:35am

    However, many of the main proponents of ACTA have insisted that it won't really require any legal changes.

    If ACTA didn't require countries to change their IP laws, why would they even bother with it in the first place? Why would they waste the time, effort and expense on a treaty that won't change anything?

     

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  5.  
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    Not an electronic Rodent, Jan 25th, 2011 @ 4:33am

    Re: Re: OMG

    The reply to the Parlimentary questions isn't much better - a fine piece of bureauctraic non-speak which totally glosses over the meat of the questions. For example I can't see how the "information gathering" requirements mentioned aren't a breach of the current Data Protection Act and would therefore require an amendment to same - but apparently no legislation is required.
    It sounds to me that the commission basically swallowed whole whatever they were told without bothering to think about it.
    Industry representative: "It's OK we've checked and it's all within current law".
    Commission panel member: (Thinks; God I've no idea what the law actually IS... I can't possibly look stupid)
    Commission: *Wise nods and murmurs of agreement... minuted*

     

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  6.  
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    mike allen (profile), Jan 25th, 2011 @ 6:09am

    Wuropean law is often in contridiction with itself nothing here to stop this draconian so called trade agreement.

     

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  7.  
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    Not an electronic Rodent, Jan 25th, 2011 @ 6:41am

    Re:

    Wuropean law is often in contridiction with itself nothing here to stop this draconian so called trade agreement.
    Well except common sense, basic consideration for the notion of personal privacy, fair trading practices and... uh yeah.. wait..... that doesn't end so well does it?
    Uhhhh... nope I got nothin'

     

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  8.  
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    Anonymous Coward, Jan 25th, 2011 @ 6:55am

    A few things here. First off, I wonder how many of the people writing and signing this document are members of the Pirate Party, EFF, or similar groups. Some of the names on it seem like "the usual suspects" to me.

    Second, the document is legal opinions, not legal fact. They are lawyers arguing a point that hasn't been in front of the courts yet. Seeing how the EU works, it could take a decade or more to figure any of this stuff out.

    Third, since EU law isn't consistent country to country, it is difficult to know the implications until there is actual implementation.

    All this against a document that still isn't public, and the only copies in public has been lifted (and possibly planted) by those who oppose it.

     

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  9.  
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    Eri, Jan 25th, 2011 @ 7:24am

    Hello fun then. Even if EU ratifies ACTA, implementing measures would be striked down again and again by ECJ; if it is really that inconsistent that it cannot be implemented we will incur obligations under international law, which we cannot fulfill... Let the fun begin~

     

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  10.  
    identicon
    Not an electronic Rodent, Jan 25th, 2011 @ 8:00am

    Re:

    Some of the names on it seem like "the usual suspects" to me.
    [Citation Needed]
    And who exactly are the "usual suspects"? Looking at the list the main signatories all seem qualified in relevent areas to have a valid opinion on the matter and to a layman the arguments they make are cogent. Or is it that anyone who does not agree with ACTA has a de facto invalid opinion?
    Seeing how the EU works, it could take a decade or more to figure any of this stuff out.
    And that in itself doesn't give you pause? Whether you consider the drafters of the opinion biased or not they do appear to be qualified in the right areas of law. It would seem at least that there is a valid point of debate and yet you suggest that the signing of the agreement will preceed a debate and finding on the legal matters? Why do you consider that to be good or even OK?
    Third, since EU law isn't consistent country to country, it is difficult to know the implications until there is actual implementation.
    So it wouldn't be out of line to have that investigated before hand, or implemented at a country-by-country level to avoid this? The challenge also seems to have anticipated a number of potential general obstances beforehand without having to resort to country specific law. And if your statement is true one would expect them in the interests of transparency to avoid definitive phrases like "No legislation changes are neccessary" if such things cannot be confirmed before implementation, unless of course the intent is to mislead.
    All this against a document that still isn't public, and the only copies in public has been lifted (and possibly planted) by those who oppose it.
    But the process supposed to be transparent to the "interested MEPs":
    The Commission has provided dedicated briefings to interested Members of the Parliament on all aspects of the negotiations, after each negotiating round since March 2010.
    (From the reply to questions ) So you would imagine they would have reasonably accurate information on which to base an opinion. If not perhaps the question should be "why not?". Again, do you consider it the case that any document that shows ACTA in a bad light must be de facto baised and invalid?

    If you want to support ACTA, try something more than innuendo and vague insunuations and argue a case.

     

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  11.  
    identicon
    Anonymous Coward, Jan 25th, 2011 @ 9:13am

    Re: Re:

    If you want to support ACTA, try something more than innuendo and vague insunuations and argue a case.

    Since the opposition doesn't have the full document, what do you think they are working from?

    I argue only in the same manner they do.

     

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  12.  
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    The eejit (profile), Jan 25th, 2011 @ 9:42am

    Re:

    Not quite. As soon as it's ratified, it can be shoehorned into the member states' respective laws, with the penalties forfailure to comply included.

    It's technically true that it won't directly change EU law. What I suspect will happen is that those signatories who don't change it right away will be pointed at by the USTR and be threatened with sanctions.

    What I would love is for this to be constitutionally challenged the first time someone's prosecuted, then for it to be slapped down by the ECHR.

     

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  13.  
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    Eri, Jan 25th, 2011 @ 10:34am

    Just wanted to add that ECJ has no problem striking down acts implementing UN SC resolutions (e.g. Kadi 1 & 2). So if ACTA is not in compliance with EU law it is just unlikely to apply for long in the EU; the first few cases before the Court of Justice would inevitably bring it down.
    Also, regarding the consistency of EU law in member states - it actually is consistent in most areas within the competences of the Union. When questions of EU law arise before national courts preliminary references are requested from ECJ, and the interpretations given are binding. Thus although national courts are free to interpret national law, this must be done within the framework of EU law. Of course, there is the possibility for enhanced cooperation between some of the MS; I imagine this is a viable option for the implementation of ACTA.
    Moreover, as The eejit mentioned, ECHR would also be able to review comparability with the Convention in concrete cases, and although not directly able to the implementing acts/ACTA itself, it would cost dearly the MS taking measures in pursuance of the treaty in question. Since EU joined the ECHR (or when it does, in the very near future, as provided by TEU), acts of EU organs are also subject to review. So in effect the citizens of the Union would be among the ones with best protected rights, and are least likely to be affected by ACTA.

     

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  14.  
    identicon
    Anonymous Coward, Jan 25th, 2011 @ 10:36am

    Re: Re: Re:

    Secret documents about copyright make people angry.

     

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  15.  
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    Mike Masnick (profile), Jan 25th, 2011 @ 10:39am

    Re: Re: Re:

    Since the opposition doesn't have the full document

    They don't?

     

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  16.  
    identicon
    Not an electronic Rodent, Jan 25th, 2011 @ 10:49am

    Re: Re: Re:

    Since the opposition doesn't have the full document, what do you think they are working from?
    [Citation Needed]
    Again you argue nothing. Their arguments cite specific clauses and paragraphs. Are you suggesting they made them up? Or perhaps suggesting that there's a secret appendix they don't have that says "Just Kidding" and adds in the missing protections they refer to?

    If you have any evidence to suggest they aren't working from a full text, by all means cite it or stop with the innuendo, insinuations and misdirection.

     

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  17.  
    identicon
    Anonymous Coward, Jan 25th, 2011 @ 1:06pm

    The main proponents to whom you attribute "won't really require any legal changes" have been talking about US law.

    PS - The ACTA draft is currently being circulated among ABA and AIPLA committees for comment. If there is an inconsistency with US law it will be duly noted to the USTR.

     

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  18.  
    identicon
    Not an electronic Rodent, Jan 25th, 2011 @ 5:14pm

    Re:

    The main proponents to whom you attribute "won't really require any legal changes" have been talking about US law.
    100% wrong. As far as I know the negotiators have claimed "no changes" in every country pretty much and I was 100% talking about the EU. Since clicking a link seems beyond you:
    ACTA does not require the introduction of any modification of EU legislation and will not require any legislative implementation in Europe.
    E-8847/10EN Answer given by Mr De Gucht on behalf of the Commission (21.1.2011)

     

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  19.  
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    Mike Masnick (profile), Jan 25th, 2011 @ 6:25pm

    Re:

    The main proponents to whom you attribute "won't really require any legal changes" have been talking about US law.

    Not so. The same claims were made about EU law.

    PS - The ACTA draft is currently being circulated among ABA and AIPLA committees for comment. If there is an inconsistency with US law it will be duly noted to the USTR.

    Funny. I mean, seriously funny. You make me laugh.

    The inconsistencies were pointed out to the USTR long ago, and the USTR ignored most of them and flat out said that if there are inconsistencies, they could be ignored.

    What amuses me most is that you were among our commenters who insisted there would be no such inconsistencies and we were being unfair even *talking* about the document before it was released.

    Now that we've been proven correct, you are making stuff up again. This happens all too frequently.

     

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  20.  
    identicon
    Anonymous Coward, Jan 26th, 2011 @ 9:00am

    Re: Re:

    Once again you have a comment I have made.

    When I speak of "proponents" who have been lambasted here time and time again, I am referring to persons in the US who have stated that the current iteration of the draft does not require changes to US law. Just because Mr. Love says it will does not make it so.

    As for professional organizations that have been asked to analyze the draft with an eye to its provisions vis a vis US law, I have not as yet seen any comments in any of the drafts of any committee that have pointed to conflicts. This does not mean some may be identified and a detailed analysis of why this is believed to be the case. I am simply saying that none have surfaced to date.

    Might I suggest you save your "amusement" until after the organization have submitted their final comments? Your "amusement" is clearly premature. Perhaps you fail to recognize the distingtion between draft documents and the completed document. Moreover, perhaps you overlooked the limitation in the completed document that legal review by each of the participants to the negotiations was to be solicited. The USTR is doing this, as I presume is the case with the other participants.

    Alleging that I am making stuff up again is little more than an ad hominem attack without any basis in fact or law. Perhaps I should simply start agreeing with your legal analysis on all matters dealing with patents and copyrights, even when I know they are plainly wrong.

     

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  21.  
    identicon
    Anonymous Coward, Jan 26th, 2011 @ 9:10am

    Re: Re: Re:

    "Once again you have a comment I have made." should read "Once again you have mischaracterized a comment I made."

     

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  22.  
    identicon
    Anonymous Coward, Jan 30th, 2011 @ 8:06pm

    Re: Re: Re: Re:

    Can anyone explain to me why further discussions on this site are truncated by its principals when comments are presented that contradict unsubstantiated rumors?

     

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  23.  
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    Mike Masnick (profile), Jan 30th, 2011 @ 10:54pm

    Re: Re: Re: Re: Re:

    Can anyone explain to me why further discussions on this site are truncated by its principals when comments are presented that contradict unsubstantiated rumors?

    Multiple choice:

    (a) Actually, you have confirmation bias, and I'm more than willing to continue plenty of discussions, but some inevitably die off because I have other stuff to do.
    (b) I'm running a business, writing a bunch of posts, leading a life, and sometimes I don't follow every freaking thread on the site.
    (c) We have well over a million people coming here each month. Perhaps I can't follow everything that goes on on the site.
    (d) At some point, responding to anonymous condescending jerks with a history of lying just isn't worth my time any more.
    (e) All of the above

     

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  24.  
    identicon
    Not an electronic Rodent, Jan 31st, 2011 @ 2:30am

    Re: Re: Re: Re: Re:

    Can anyone explain to me why further discussions on this site are truncated by its principals when comments are presented that contradict unsubstantiated rumors?
    Tell you what. I'll join you in asking Mike to continue discussions when you can explain why consistently, when your ranting and at least equally unsubstantiated comments force any number of people to nitpick their own point until it's diffcult to refute, you veer off and make another random and usually ranting attack elsewhere.
    I could have missed it in all the ranting and personal attacks, but I've yet to notice you actually answer a call for supporting evidence on anything. So much for "unsubstantiated rumour".

     

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  25.  
    identicon
    Anonymous Coward, Jan 31st, 2011 @ 8:24am

    Committees of both the ABA and the AIPLA have established working groups to examine the provisions in ACTA and comment on them so that they may be provided to the USTR, who initiated requests to each for a legal analysis. I, among others, am a member of these groups, with most members not having followed the ACTA negotiations so that they are working with a clean sheet of paper and no preconceived notions and biases. As I stated, I have followed their comments, initial drafts, and final papers, and have not as yet noted that any provisions of ACTA that have been identified as being in clear conflict with US law. This is a fact, and not "confirmation bias" as you have stated.

    "Condescending jerks with a history of lying" is an ad hominem response that does little, if anything, to address the underlying merits of a post.

    If this was the first time the truncation of thoughtful and sincerely presented responses ocurred I would be reluctant to even ask the question. Unfortunately, it is not. It has happened time and time again.

     

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