USTR Says Congress Won't Be Restricted By ACTA

from the yeah,-right dept

Responding to a series of questions that Senator Ron Wyden asked, Ron Kirk, the US Trade Representative, and the Obama administration apparently believe that Congress and the courts will not be constrained in any way by ACTA. This is a bit odd, since the last draft of the agreement conflicts with US law in some places, and most certainly appears to state that countries agreeing to ACTA need to follow certain laws that would block Congress' ability to change copyright laws in various ways. Of course, what's really going on here is a sneaky political game. Since the administration wants to call this an "executive agreement," rather than a treaty (so that it doesn't need Senate approval), they have to claim that it won't really impact US laws. Yet... you can be absolutely positive that if Congress moved to change a law in any way that conflicted with ACTA, we'd be hearing speeches and reading stories about how we're not living up to our "international obligations," such as those found in ACTA. It's a really cynical political move by the administration.

Filed Under: acta, congress, ustr

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  1. identicon
    Anonymous Coward, 20 Apr 2011 @ 8:49pm

    While reasonable minds can always differ, I have as yet to see a convincing argument that the provisions of ACTA are directly at variance with relevant US law.

    Yes, potential inconsistencies are regularly raised, but upon analysis they do not withstand scrutiny. The issues raised are largely hypotheticals along the lines of "assuming this, then what about this?"

    If opponents of ACTA are convinced that such inconsistencies are present, then in my view it behooves them to specifically spell out what they are and why. It is useful to bear in mind in such an exercise that federal statutes already have a rich history of statutory analyses by our federal courts, and when such analyses are examined by review of the pertinent caselaw these so-called inconsistencies have been shown to be of dubious merit.

    If a may make a final observation, it has been repeated time and time again that the executive branch does not have the constitutional authority to bind future actions by Congress. The Separation of Powers Doctrine makes this only too clear. Unlike a treaty, which is entitled to the full force and effect of law, an executive agreement is not. This is not a trivial distinction. It is a fundamental consequence of our constitution and the powers allocated by it between Articles 1 and 2.

    For decades the US has been on the receiving end of pressure, mostly from Europe, and France in particular, to adapt its laws in the pursuit of international harmonization. The Copyright Act of 1976 is one example, followed by later amendments, also in the name of international harmonization, elimination almost in their entirety the statutory formalities that had been a key consideration in the formulation of US law. Here the shoe is on the other foot for the first time in recent history, which in my view is long overdue.

    As I sit here there is legislation moving through Congress pertaining to structural changes in US patent law, also in the name of international harmonization. Once more international pressure is being brought for the US to change its laws to the satisfaction of other nations. Frankly, I hope the legislation meets an inglorious death, and if it does not, then I look forward to a date in the future when the US returns the "favor".

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