SOPA, PIPA, ACTA, TTP NO THANKS!!

SOPA, PIPA, ACTA, TTP NO THANKS!!

Hi—

Together, we beat SOPA in a huge victory for internet freedom. But this Saturday, internet freedom protests are breaking out in over 200 cities across Europe. Why?

Because the companies behind SOPA are using international trade agreements as a backdoor to pass SOPA-style laws

SOPA’s supporters are pushing two agreements: ACTA and TPP1. ACTA would criminalize users, encourage internet providers to spy on you, and make it easier for media companies to sue sites out of existence and jail their founders. Sound familiar? That’s right, ACTA is from the same playbook as SOPA, but global. Plus it didn’t even have to pass through Congress2.

TPP goes even farther than ACTA, and the process has been even more secretive and corrupt. Last weekend (we wish this was a joke) trade negotiators partied with MPAA (pro-SOPA) lobbyists before secret negotiations in a Hollywood hotel, while public interest groups were barred from meeting in the same building.3

Trade agreements are a gaping loophole, a secretive backdoor track that—even though it creates new laws—is miles removed from democracy. Trade negotiators are unelected and unaccountable, so these agreements have been very hard for internet rights groups to stop.

But now the tide is turning. Fueled by the movement to stop SOPA, anti-ACTA protests are breaking out across the EU, which hasn’t ratified ACTA. The protests are having an impact: leaders in Poland, the Czech Republic, and Slovakia have backtracked on ACTA.4 Now a massive round of street protests in over 200 cities is planned for this Saturday February 11th.

We’re planning an online protest this Saturday to support the protests in the streets. Why? Because together we can drive millions of emails to key decision makers—and start tipping the scales like we did on SOPA.

Can you take part? Click here to get the code to run on your site!

We just built an ACTA & TPP contact tool, and it’s not just a petition. It’s code for your site that figures out the visitor’s country and lets them email all their Members of European Parliament—the politicians who will be voting on ACTA in June—or the trade negotiators behind TPP. This direct contact between voters and their officials, driven by websites of all sizes, was instrumental in the fight against SOPA.

We can use the same tactics to defeat ACTA & TPP, but we need your help!

Support the street protests with a flood of emails to the officials responsible for ACTA & TPP. Get the code for your website!

Don’t have a website? Tell officials in your country to scrap ACTA & TPP! And spread the word about Saturday’s protests!

This is going to be tough fight. But we need to make secretive trade agreements harder to pass than US law. If we don’t, our internet’s future belongs to the lobbyists behind SOPA.

This is just the beginning,

—Holmes Wilson, Tiffiniy Cheng, Joshua Blount & the whole Fight for the Future team.

P.S. This map of ACTA street protests in Europe is amazing. The largest has almost 50,000 RSVP’s!

Sources:

1. For more information on ACTA, read these excellent articles from Techdirt and La Quadrature du Net. For information on TPP, read this Ars Technica piece. For video, watch this.

2. Obama’s signing of ACTA may have been unconstitutional. See Anti-counterfeiting agreement raises constitutional concerns and Techdirt.

3. Hollywood gets to party with TPP negotiators, public interest groups get thrown out of the hotel.

4. Ars Technica: Czech, Slovak governments backing away from ACTA, too.

on of ACTA: meet the next secret copyright treaty
By Nate Anderson | Published 11 months ago

So many countries in need of the Digital Millennium Copyright Act, so little time! The US government, still trying to secure final passage for the drafted-in-secret Anti-Counterfeiting Trade Agreement (ACTA), has already turned its attention to a new multilateral trade agreement that will bring the wonders of the DMCA to countries like Australia, Brunei, Chile, Singapore, Malaysia, and Vietnam.

The new Trans-Pacific Partnership (TPP), like the ACTA before it, had its intellectual property chapter drafted by the US. Once again, the chapter was drafted in secret and has been classified for at least four years after negotiations end. The agreement exports (nearly verbatim) the DMCA’s rules on digital locks, ISP liability, and subscriber disconnections, with a few extra goodies on the side.

TPP has been in the drafting stage for some time, but the US intellectual property chapter (PDF) only leaked yesterday. Canadian law professor Michael Geist calls it “everything [the US] wanted in ACTA but didn’t get.”

“For example,” he says, “the digital lock rules are the US DMCA, complete with [the] exact same exceptions (no more, no less). The term of copyright matches the US term of life of the author plus 70 years, beyond the Berne requirement and Canadian law. The ISP provisions including a copy of the US notice-and-takedown system as well as provisions that go beyond US law. In other words, the US envisions using the TPP to export its copyright law to as many countries as possible while creating backdoor changes to its own domestic laws.”

The draft contains only a “placeholder” section for limitations and exceptions such as fair use, but it contains plenty of detail on enforcement. Every TPP country must create “legal incentives for [Internet] service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials.” ISPs must cut off access to “repeat infringers” of copyright. And bypassing DRM is only permissible for good-faith security and privacy research, or if you run a library.

The chapter requires criminal penalties against anyone who uses “an audiovisual recording device to transmit or make a copy of a motion picture… In a public motion picture exhibition facility.” All countries must provide a “making available” right to copyright holders, such that simply offering a file through BitTorrent would be grounds for a lawsuit even if no one downloaded the file. Boxes meant “primarily” for descrambling cable and satellite transmissions would be illegal and subject to criminal penalties.

Any country could adopt tougher copyright and patent penalties than those in the TPP, but no signatory could do anything less. This follows a consistent international pattern in which protection and enforcement standards are always mandatory, while exceptions and limitations are usually optional.

Knowledge Ecology International (KEI), which obtained the leaked document, also notes that “copyright damages shall consider the suggested retail price or other legitimate measure of value submitted by the right holder” in court cases. And all countries must set up a process to identify “Internet users for any ISP, going beyond US case law.”
Calling for Congress

While KEI has numerous concerns about the content of the leaked chapter, it has a larger concern about the process by which such chapters are drafted and negotiated. As with the ACTA, by the time the negotiators release a text for public comment, few major changes are still possible.

“The document has been distributed to all member states participating in the TPP negotiations, so it is not secret from any of the parties in the negotiations. The document may also be subject to review by the hundreds of corporate insiders who serve on USTR [US Trade Representative] advisory board. It is, however, secret from the taxpayers and voters who live in the United States, and people everywhere who are going to live under the new norms…
“KEI objects to the policy of making the negotiating text of intellectual property agreements secret, particularly when the documents are distributed to all parties in a negotiations, and thus are only secret from the public. The Congress needs to intervene and require that such texts be made public routinely.”Hollywood Gets To Party With TPP Negotiators; Public Interest Groups Get Thrown Out Of Hotel
from the yeah,-that-doesn’t-look-co rrupt-at-all dept

We’ve been talking about the ridiculous levels of secrecy around the TPP (Trans-Pacific Partnership) agreement — a trade agreement that is being designed to push through basically everything that Hollywood wants in international copyright law. Last week, we mentioned that various civil society groups were planning to hold an open meeting about TPP in the same hotel where the negotiations were being held (in Hollywood, of course).

However, it appears that once the USTR found out about this, it got the hotel to cancel the group’s reservation at the hotel. According to Sean Flynn, the Associate Director of the Program on Information Justice and Intellectual Property (PIJIP) at American University:




The public interest briefing was booked last week and advertised to all delegations, including the host USTR. An hour after the invitation was sent, we received a cancellation of our venue by the hotel. The cancellation by by Sophie Jones, Event Sales Manager, Sofitel Los Angeles stated:




“I am sorry to be the bearer of bad news but unfortunately we will not be able to move forward with your luncheon for Tuesday January 31st. It was brought to my attention that we have a confidential group in house and we will not be allowing any other groups in the meeting space that day. Again, my apologies for the late notice. Hopefully we can work together in the near future.”

Okay. I guess if no other groups are allowed in the meeting space that day it’s understandable. Except… oops… someone in the group confirmed that the hotel was lying:




After receiving the cancellation, members of an advocacy organization called the hotel and were able to book a room for a claimed private event not related to the TPP. Apparently only TPP-related events were banned from the hotel at the request of an unidentified party. USTR is serving as the host of this meeting.

Well, at least MPAA execs were similarly blocked from access to the negotiators, too, right? Nope:




The film industry did not have similar problems – they hosted a multi-hour tour of 20th Century Fox Studies last night, led by a representative of the studio’s government relations office.
Yeah. This is what corruption looks, smells and tastes like. And the MPAA still doesn’t get it. They still think that backroom deals like this are fine and that the public won’t notice or care. That’s quite a bet to make, and one they may regret.



By Jack Goldsmith and Lawrence Lessig
Friday, March 26, 2010

The much-criticized cloak of secrecy that has surrounded the Obama administration’s negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken Wednesday. The leaked draft of ACTA belies the U.S. trade representative’s assertions that the agreement would not alter U.S. intellectual property law. And it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States.

The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law.

ACTA could, for example, pressure Internet service providers — such as Comcast and Verizon — to kick users offline when they (or their children) have been accused of repeated copyright infringement because of content uploaded to sites such as YouTube. It also might oblige the United States to impose criminal liability on those who “incite” copyright violation. The draft more generally addresses “IP infringement” and thus could extend some of its rules to trademark and possibly patent law in ways that, after inevitable international compromises, will depart from U.S. law. It also contemplates creating an international “oversight council” to supervise (and possibly amend) aspects of the agreement.
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These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis and when Franklin Roosevelt recognized and settled expropriation claims with the Soviet Union.

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president’s express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president’s claims settlement power, which dates back over a century).

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president’s own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied.

Congress should follow Biden’s lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

These mostly secret negotiations have already violated the Obama administration’s pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.
Jack Goldsmith and Lawrence Lessig are professors at Harvard Law School. Goldsmith is co-author of “Who Controls the Internet?” Lessig is the author of “Remix: Making Art and Commerce Thrive in the Hybrid Economy.”As USTR Insists ACTA Doesn’t Need Congressional Approval, Wyden Asks State Dept. For A Second Opinion
from the that’s-not-what-the-constitution-says dept

Back in October, we noted that Senator Ron Wyden had sent the Obama administration a letter pointing out that it appeared unconstitutional for the President to sign ACTA without getting Congressional approval. The USTR had been insisting that because ACTA does not require any change to US law, it doesn’t need any such approval. Of course, that ignores a few issues. First, while it may not change US laws, it seems likely that it would restrict future changes to laws if we wanted to stay in compliance. For that reason alone, it should have Congressional approval. But the larger point is that international agreements signed without Congressional approval — so-called “executive agreements,” — can only be done for issues solely under the President’s mandate. Copyright and patent laws, however, are the mandate of Congress, not the President.




The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.

Thus, Wyden asked the President to explicitly state that ACTA was not binding and does not create any international obligations for the US:




I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. — that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA.

Instead, however, the USTR responded (embedded below) with the same exact response it’s been giving out all along: nothing to see here because ACTA requires no changes to US laws. There are two very big problems with this. First, it’s not clear that’s even true. The Congressional Research Service’s analysis of the language of ACTA (done at the request of Wyden) pointed out that ACTA may require changes to US law. The problem (and it’s a big problem) is that the language is so vague, it all comes down to interpretation.

Second, even if the USTR is correct that ACTA requires no changes to US law, that’s answering a different question. Wyden did not ask about what ACTA required to implement. He asked what was required to approve it. And the law does not say that the President can declare something an executive agreement if it doesn’t require a legislative change — but that he can only do it for things under his sole mandate. ACTA clearly does not qualify. Either way, this is a really disingenuous move by the USTR. It answers a different question and does so possibly inaccurately. And, nowhere in the letter did anyone respond to Wyden’s specific request for a declaration that ACTA creates no international obligations for the US.

In response, Wyden has now sent a second letter (also embedded below) to the State Department, asking it to look into this and clarify if a mistake has been made. Here are the specific questions he asks the State Department to answer:




If ACTA is entered by the President without Congressional consent, what will be the nature of the agreement and its legal implications under U.S. and international law? For example, is it the Department of State’s opinion that ACTA will be equivalent to a non-binding “memorandum of understanding,” like some of the intellectual property agreements cited by USTR in the attached letter? Can ACTA be a valid and binding “sole executive agreement” under the U.S. Constitution, even though the regulation of intellectual property is not a sole executive function under the Constitution? Or must ACTA, to be binding, be a form of Congressional-executive agreement by virtue of ex ante or ex post congressional approval?



What is the nature of the international legal obligations that ACTA would create? Would the U.S. be in violation of the agreement if the Congress changed federal law in a way not consistent with the agreement, for example by ridding our law of statutory damages for online copyright infringement? What would be the implications of such a violation?



What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law? (It is worth noting that many experts believe that ACTA is not, in fact, consistent with current U.S. law.)

These are good questions. The first and third are the crux of the Constitutional issue, but the second one is the really important one from a policy standpoint. We’ve argued that a rather serious problem with ACTA is that it will severely limit Congress’ ability to fix certain aspects of copyright law. The example used by Wyden is a good one. There’s a very strong argument to be made that statutory damages in copyright law are ridiculous, disproportionate and out of control. Fixing them would be a big help in making sure that copyright law isn’t used regularly as a nuclear weapon against people who simply can’t defend against the possibility of ridiculous damages awards. Another example would be if Congress decided to walk the courts back on their made up idea of “inducement” being a form of copyright infringement. Under ACTA, either of these moves would put the US in violation. So while it may not require legal changes to implement today, it may significantly prevent Congress from making those changes. And shouldn’t Congress have the right to weigh in on that?