US Ignores Unwelcome WTO IP Rulings

Eye Log writes "The United States is a big fan of leaning on other countries to tighten IP and copyright protection, but has a tendency to ignore its own obligations when it doesn't get its way. 'Two ongoing cases illustrate the point. First, the European Union is pushing for the US to change a pair of rules that it calls "long-standing trade irritants." Despite World Trade Organization rulings against it, the US has not yet corrected either case for a period of several years... Apparently, it's easy to get hot and bothered when it's industries from your country that claim to be badly affected by rules elsewhere. When it comes to the claims of other countries, though, even claims that have been validated by the WTO, it's much easier to see the complexity of the situation, to spend years arguing those complexities before judges, and to do nothing even when compelled by rulings.'"

Autonomy

[treesloth]

I really don't see the problem. Member nations are autonomous. Any compliance with demands from the World Court, the UN or the WTO is strictly voluntary for any nation. Their real authority is precisely whatever the member nations decide. That's not just for the US-- it's for any member nation of any such organization. Orders from the UN and similar groups really just don't matter unless they can back them up-- and they can't. I prefer it that way, honestly. The UN and WTO are a bit too socialistic for my tastes, but that's just me.

Re:And you are surprised because ... ?

[msobkow]

It's nothing new to Canada and our long-standing disputes over softwood lumber and other issues. The US even ignores it's own courts when it doesn't like the rulings.

This is rich

[dedazo]

From TFA:

The so-called "Irish Music" dispute concerns the portion of US copyright law that lets restaurants and shops play broadcast music without compensating the copyright holders. As previous coverage of this issue shows, Europe takes a fairly hard-line stance on these payments; a UK car repair chain was even targeted by collecting societies because its mechanics played their radios loud enough that customers could hear them.

Pretty much the very group of people for whom this is an anathema are taking the opportunity to complain that the US has not implemented this draconian bullshit because, well, it's fun to say "the US ignores what it doesn't like".

The chuckle factor is definitely high here.

Re:Proper syntax

[Brian Gordon]

You might use sarcasm for just one sentence in your comment though; it doesn't make sense to mark the whole thing as the same tone.

It's True

[Bullfish]

The US has more trade agreements with Canada than any other country and in Canada's experience it is absolutely true. The US government's negotiators howl about DRM, our approach to health care, pharmacuticals, gay marriage, drug "leniency" etc, etc while ignoring rluling after ruling not just by the WTO, but by the NAFTA boards, and other committees that supposedly govern bilateral trade. Largely they do it because they can get away with it.

I have no doubt that the US will recover from it's financial woes. The world economy is changing though, and competition for resources is increasing. The US's negotiating position is changing as well. Instead of being the one of a few major buyers of commodities, they are now among many. Ignoring multilateral trade rulings as a routine is going to end as a consequence. At least if the US government is smart about it.

Re:And you are surprised because ... ?

[rbrander]

>>Canada dumps lumber in the US at subsidized prices

Well, that would be YOUR point of view. Canada's point of view is different.

That's why we have courts...in this case, the WTO.

And the WTO court found your point of view to not reflect reality, and Canada's point of view to reflect reality much, much better. Repeatedly.

And every time, the US effectively ignored the court ruling. Please, I don't want to start an argument over softwood lumber. I'm just stating the facts: the WTO ruled against the US, and the US did not adjust its behaviour the way they would have insisted on another country doing had another country received the same ruling.

The headline on this story would have been more correct by removing the "IP" from the sentence. "The US ignores unwelcome WTO Rulings" - of every kind. Maybe not ALL of them, but certainly some cases that are matters of much, much journalistic coverage. Many of these cases pre-date the Bush2 administration.

Re:And you are surprised because ... ?

[TheRaven64]

You are missing two things. First, the Constitution (Article VI, Clause 2) specifically states that any treaty obligations shall be the law of the land, and so you are legally, according to the constitution, bound by WTO rulings since the WTO powers are granted by a treaty. Secondly, you are ignoring the fact that the USA is expecting US law to extend over most of the world and is attempting to use the WTO to enforce this. Since the principle export of the USA is IP, your economy would be in an even worse state than it is now if the rest of the world took the same attitude the USA does to WTO IP rulings.

Re:And you are surprised because ... ?

[phantomlord]

Of COURSE the US laws and points of view prevail IN THE US over anything else. We are a soverign nation. We have our own laws and our own courts. We aren't SUPPOSED to be controlled by every other country on the planet. Our SCOTUS isn't SUPPOSED to be considering other country's laws when they rule on laws we have passed here, they have a Constitution they are supposed to consider as supreme.

That Constitution says nothing about the WTO getting to change US laws they don't like. It says nothing about UN Resolutions. Our government tops out at the federal level.

There's a loophole in the Constitution however...

From Article VI:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Technically you don't need an amendment to change the Constitution and the supreme law of the US, all you need is 67 Senators and the President to concoct and agree to a treaty with a foreign power. That treaty then has the same weight as the Constitution.

Retired NJ Superior Court Judge Andrew Napolitano has written a couple of books which touch on the subject of how the federal government has been able to subvert the Constitution. Check out "Constitutional Chaos" and "The Constitution in Exile"

Re:Usual Drivel

[Anonymous Coward]

The difference is that the US agreed to follow those rules. If you don't intend to, then you shouldn't have signed the damn treaty in the first place.

Re:And you are surprised because ... ?

[Anonymous Coward]

Actually, this has next to nothing to do with this or any Administration unilaterally ignoring WTO rulings. The issues raised in the article have to do with laws passed by the Congress of the United States. Without the Congress of the United States repealing those laws, the current (or indeed, any future) Administration has no power to do anything about these WTO rulings.

Ummm, well, actually, under the US constitution, treaties that have been signed by the administration and approved by the Senate are the law of land. Congress has nothing more to say aside from repealing the treaty.

One Word Response: BANANAS!!!

[Ossifer]

Hello? The EU is so ridiculously hypocritical. Just look at the EU's bananas regime:

http://www.ustr.gov/Document_Library/Press_Releases/2007/June/United_States_Requests_WTO_Panel_to_Review_European_Unions_Banana_Import_Regime.html [ustr.gov]

The EU has been consistently ruled against for well over a decade, and there is still no movement towards compliance.

Re:And you are surprised because ... ?

[jedidiah]

Sorry but the Supremes just declared otherwise.

Also I am sure that your paraphrase of that bit of law rather
egregiously misrepresents it.

There are plenty of similar examples from people like the
Americal Family Association and anti-gun lobbyists.

Re:Powerful Countries often ignore the rules

[Wrath0fb0b]

The Supreme Court just ruled that U.S. states can now pretty much ignore international law at will.

You misunderstood the ruling in Medellin. What it held was, absent a Congressional grant of power to do so, the President may not order a State to comply with a treaty. If the President want to bind a state court to the terms of a treaty, he has to get Congress unambiguously on board. To me, this seems like a good balance between the power of the Federal government to conduct foreign policy and the State's right not to be bound absent specific Congressional authorization.

Plus, I thought /.ers were supposed to be against executive power as a general matter. Think of the howls if the President ordered some blog to obey a international court ordering the take down a libelous or defamatory post.

Re:And you are surprised because ... ?

[Perl-Pusher]

So what's your point? Because that's exactly what china does.

Re:Uh oh

[ta bu shi da yu]

URGENT NEWS UPDATE: struggling smaller country stops playing by U.S. rules. Antigua allows pirated software.

Re:And you are surprised because ... ?

[Michael Woodhams]

The attitude that "rules apply to everyone else but not to us" is the single most distinctive aspect of the current US administration. Torture, the Geneva convention, the world court for prosecuting war crimes, illegal bugging of US citizens, the ABM treaty - and that's just what I can think of in a few seconds.

Re:And you are surprised because ... ?

[ta bu shi da yu]

Care to address the other point the poster made?

If the rest of the world ignored U.S. patents and copyright, then I'm fairly certain the U.S. would care. Same deal with what the U.S. is doing you know - it's not necessarily in the best interest of Europe or any foreign group to follow the laws of the United States.

Re:Proper syntax

[Brian Gordon]

What's with the style? How about <phrase voicetone="sarcasm"> ?

Re:And you are surprised because ... ?

[Miseph]

Re-read that passage, it doesn't say what you think it says. SCOTUS can rule a treaty unconstitutional just like any other law, and the Constitutionally dictated solution is to withdraw from the treaty.

That said, the current SCOTUS is full of hacks and ideologues who will support whatever their neo-con cohorts wish regardless of what the Constitution does or does not say. Score one for PNAC.

Treaties and US law

[JimBobJoe]

Sorry but the Supremes just declared otherwise.

That Supreme Court case had to do with whether a treaty signed by the US could be enforced by the president.

Apparently, that particular treaty didn't have any legislation passed by congress backing it up and/or the treaty didn't include say anything about how it would affect the states.

"Writing for the court, Chief Justice John Roberts said that because the treaty did not explicitly say its provisions were binding, and because there was no legislation to make the treaty binding, the president could not on his own force the states to comply." From here. [npr.org]

Re:And you are surprised because ... ?

[MightyMartian]

Canada dumps lumber in the US at subsidized prices, but the subsidy is the less than fair market price for the wood on their equivalent of national forests. Who determines what they call fair market price? The Canadian government. And correctly so. Whether Canada wants it's money from stump royalties or income taxes on employed workers is their call.

It's a real pity that no one, not even the WTO or NAFTA actually agrees with this claim. Of course, repeating lies over and over to get your way is a classic example. The reality is that your sawmills basically want to turn Canadian forests into private wood lots, to enforce their own model of forestry on a sovereign state.

Re:Paying for radio?

[jackan]

Actually.... In the US BMI collects royalties from every place that plays music in a money making environment.
The only way around this is if every song played is live, and by the person that wrote it.

Regards, Jack

Re:And you are surprised because ... ?

[Mathinker]

Judging from the article [ictsd.org] linked from the comment above [slashdot.org], in the softwood case in question, the WTO backed the US, and NAFTA was the international body which supported the Canadian position.

Either you and lots of mods are dreamin', or you're talking about a different trade conflict with Canada...

Re:And you are surprised because ... ?

[Anonymous Coward]

First, the softwood lumber situation had been settled for a couple of years now.

My ass it has. Canada was never repaid a good chunk of the money that was collected in penalties by the US. Settled by US standards maybe.

The problem is ...

[Anonymous Coward]

with the WTO itself. There are good reasons why no sane country should cede control over trade to the WTO. One should remember that the WTO concerns itself ONLY with trade. It doesn't give a crap about anything else. Environment? No. Working conditions? No. Human/political rights? No.

Removing trade as a tool in diplomacy severely limits a country's options to respond to another country's actions with which it may disagree. Developing {bi,multi}-lateral treaties may be more work and take longer but is much more flexible.

WTO? Just say NO.

Re:Here's the BEEF!!!

[Anzya]

Remind me to send them a thank you letter. If you would have said Brazilian meat then I would have conceded a point.
I would rather eat raw Swedish chicken than to touch American beef.
Couldn't find any numbers regarding beef but look at the ammount of salmonella in the US: http://en.wikipedia.org/wiki/Salmonellosis#Incidents_of_salmonellosis [wikipedia.org], 16% of the chickens had salmonella compared with Sweden where 1% of all the animals got it http://www.smittskyddsinstitutet.se/sjukdomar/salmonellainfektion/ [smittskyddsinstitutet.se], the stats are from the Swedish CDC, unfortunatly I couldn't find the numbers in english on the site.
In Sweden when ever salmonella is discovered the whole shipment of food is destroyed and if salmonella is found at a farm then all animals are destroyed.

Re:We Should Really Give the WTO

[Richard_at_work]

Furthermore, cheating on sales tax is a lot easier than cheating on income tax. Imagine buying a $10,000 car - if you have to pay 30% sales tax, that's $13,000 total. Now suppose you offer to pay $11,500 cash if the dealer doesn't report the sale: you both gain $1500 and no one will notice, unless you want to keep the IRS around and let them audit every business's inventory.

Uhm, most countries work like that - in the UK its called VAT (Value Added Tax) and its the businesses responsibility to collect it and pass it on. No, it doesn't cripple the economy to have a governmental body around to enforce it (Inland Revenue), and yes, it works very well. Its a relatively hard system to cheat because nearly everything in the UK is VATable, so if there are large differences between your incomings and outgoings, it automatically raises a flag (eg - for your example, where did that car go? Its no longer on the dealers books, he has to write the value down on his books somewhere - what happened to it? $11,500 is quite a loss to explain, especially if you are doing it regularly).

Re:And you are surprised because ... ?

[DrLang21]

There were quite a large number of people in the US that didn't want the US to join the WTO, complete with rallies and protests.

Re:Uh oh

[moderatorrater]

exploitation of the masses to benefit the wealthy, elite upper class

Actually, that was the case in Europe and China for hundreds of years before America was founded. But don't let history and facts keep you from blaming all the world's ills on the US.

Re:And you are surprised because ... ?

[Beyond_GoodandEvil]

This isn't about fairness - failure to abide by WTO judgments certainly represents treaty violation and, by definition, infringes upon international law.
Oh NOES! Anything but international law violations, what is Hans Blix going to write a sternly worded letter now? Sarcasm off, international law without an effective enforcement mechanism is little more than a helpful suggestion.

Re:And you are surprised because ... ?

[Daniel Dvorkin]

Dare I use the word fascist?

Well, you should. People have been "Godwined" out of calling American fascism what it is for far too long. Any time anyone dares to point out that the current state of the US government, with its collusion between corporate and political interests, is turning into the very definition of fascism, they're greeted with howls of righteous fury and snide comments like, "When we start rounding up all the Jews and throwing them in death camps, let us know." But fascism is essentially an economic philosophy, not a racial or religious one; the anti-Semitism that went along with the German variety was pretty much absent in Italy, where fascism was invented and named.

The funny thing is that the same right-wingers who mock people who call American fascism by its proper name are very quick to label their political opponents "Communists" or "Marxists," even though no mainstream American politician, no matter how leftist, has ever come close to proposing anything like true Communism or even socialism. (People who think the New Deal and its sequelae are socialist have no clue what they're talking about.) But the "moderate" policies praised by centrist Democrats and Republicans alike are straight out of Mussolini's playbook.

Re:Uh oh

[kellyb9]

This just in government does what is in it's best interest ... Notice how generic the use of the word "government" is. As in, A government... as in any government

Re:And you are surprised because ... ?

[krlynch]

What you say is true ... however, there are many caveats, with much well settled case law. For instance:

• Treaty provisions that violate the U.S. Constitution are not enforceable in the United States.
  
• Some treaties are not enforceable without Congressional passage of enabling legislation. These are the so-called "non-self executing" treaties. Self executing treaties have to be clear that they are, in fact, self executing. See the recent Medellin case from the Supreme Court, and references therein, for discussion of the principle and precedents.
  
• Ratifying a treaty doesn't necessarily give Congress the power to pass legislation to enforce that treaty, if it wouldn't have had the power to pass that legislation in its absence. Basically, the Senate can't get in through the back door what the Constitution wouldn't let in through the front. The Senate could certainly ratify a treaty requiring the United States to prevent publication of religious criticism, or requiring the nation's Chief Executive to be no older than 25, or to completely ban the sale of green socks in Idaho. But those treaty wouldn't be judicially enforceable in any way, effectively null and void.
  
• No treaty (self executing or otherwise) is judicially enforceable in the United States if the Constitution does not delegate power to hear the case to the Federal Courts in the first place, or if the topics are purely political (the so called "non justiciable" issues), or if Congress has restricted or eliminated Federal Court jurisdiction over the relevant issue.
  
• Constitutional amendments, later treaties, or even later laws can overrule the enforcement provisions of earlier treaties.
  
• The President and the Courts can't enforce a non-self executing treaty without Congressional authorization to do so, even if they really, really want to.
  

The other parties to the treaty may still expect that the United States lives up to treaties it has ratified, even if the government never had the grant of power to enforce treaty obligations in the first place. But the Congress can't, through a treaty, give the Federal Government any power that "We the People" have not already granted to it in the Constitution.

The WTO treaty at issue here was explicitly written to be non-self executing, was agreed by all parties to be non-self executing, provides no enforcement mechanism, and hence requires Congress to pass laws to enforce the provisions, as they've done in many cases. In some cases, Congress has chosen not to do so, or has explicitly chosen to pass laws contrary to treaty obligations. There isn't a thing that this or any other Administration can do to enforce the WTO ruling in the cases mentioned in the article ... the President is required to "take Care that the Laws be faithfully executed", and the Law says what it says.

Re:And you are surprised because ... ?

[sumdumass]

Actually, it is. Your country voluntary entered into an international treaty organisation (the WTO), which indicates that your country accepted the obligations set forth in the treaty.

Generally all treaties are enforced with the understanding of the power of the local governments. If you passed a treaty provision that said no one can say the word Cat ever again hidden somewhere in the text, the countries with free speech clauses in their constitution wouldn't have to comply with it. There are also signing statements to some multilateral treaties where obvious conflicts arise.

When we signed onto the WTO, granted it was a bunch of democrats in control (1995), it was understood that limitations of a government provided a best effort. What the WTO panel has done is ignore that principle and make a rulling that was abstract to it. They changed the rules midstream.

Provisions of that treaty is non-discrimination: if specifics goods and services are legal in your country, and a private US company or organisation can legally provide these goods and services in the US, then a non-US company or organisation is allowed, by the terms of the treaty the US signed, to import those goods and services to the US market.

But you see, that's the bitch of the situation. Currently no other US company can can engage in interstate gambling which is the what is banned. Each and every gambling franchise needs to set a local point of business in each state and follow the rules of that state. Any foreign company is free to do the same. There is no discrimination going on here. What the WTO did was say your sovereignty and the sovereignty of the individual states doesn't matter and the limits of power your government body has doesn't matter.

(and yes, each and every state enjoys an amount of sovereignty which is the way the constitution- the only way the federal government gets it's power, set it up. We are the United "States" of America. A "state" is a country in every other context.)

It is not piracy - what Antigua is doing is perfectly legal in the framework that your country accepted. Embargoing Antigua or blockading Antigua would be an entirely illegal action, and an act of war. Of course, being Antigua, and you being the US, you can declare war on Antigua anytime you want. Might makes right, and given the current might, the US can put all the pressure it wants, about anywhere. Any country can do whatever it wants - if they want to pay the price that comes with it. Escalating its violations of its treaties which were mostly written by the US anyway is always an option. I'm not so sure that the US' best interests lie in breaking out of the WTO.

Well, no. It is piracy. The WTO has no power over WIPO treaties and has no power whatsoever to take property from citizens of any country. The WTO has overstepped it's bounds in what should be considered an act of war of Antigua chooses to act on it.

An embargo would more or less be a response to a threat. What will most likely happen is something similar to Cuba where the US hassles companies doing business with them and makes it illegal to do business with the country. Any exports containing pirated works will probably be confiscated and so on. And that won't be illegal because the WTO doesn't not have any power or provisions to enact concessions over private property or violate other treaties in place. The power to do so just isn't in any of the treaties signed or currently in effect that fall under the WTO umbrella.

Re:And you are surprised because ... ?

[sumdumass]

Sorry to ask, but what are contracts with the U.S. actually good for when they can weazle out of any obligations by pointing at "the specifics of the type of governing structure", whenever the issue comes up? If the contracts don't have any binding value, then they don't have any value at all.

They are just as good as any contract with any other country. This isn't anything unique to the US. Sometimes more details are spelled out and sometimes they aren't. The entire idea behind the treaties is honor government structure and limits on the governments who sign to the treaties. When that isn't possible, the treaty takes a back seat.

Don't negiotate contracts with the U.S. then. There is really no point in fulfilling your side of the contract anyway, because whenever you need the U.S. to fulfill their part, they won't.

Do your history on this. Like I said, this isn't new, it isn't specific to any country, and to honor the spirit of your comment it would be not to enter "
"treaties" with any country. And yes, it is important to call it a treaty and not a contract. Calling it a contract allows you to make the mistakes of not treating it as a treaty and taking the wrong context. I don't know if your purposely doing that or if you are doing it without knowing.

BTW, a treaty is not a contract. A contract is not a treaty. They share similar attributes but aren't the same thing. And even with a contract, there are limits to what you can negotiate away within a legal framework so even then is isn't as cut and dry as you want.

Pacta sunt servanda. This is also valid for the U.S.. It is solely their problem how they manage to serve them, and how to get the parties within the U.S. to comply. Other countries shouldn't care.

Lol.. You are erring on the side of ignorance. Good faith does not, I repeat does not mean that all obligations will be satisfied. It means that an honest attempt at satisfying them will proceed. When natural and legal roadblocks prevent obligations from being satisfied, it is still Pacta sunt servanda because a party can only enter to the respect of the power they have or control. This is especially true in treaties peremptory norm is a fundemental process. There are very few new countries where you don't know the limitations of power a governing body has. With 200 or more years of experience no one entering the a treaty with the US should be unaware of any limitations on the powers of the government. If anything, Caveat emptor wouldbe the quote you are looking for. Like I said, this isn't the first time this has happened and it isn't only with the US.

Re:And you are surprised because ... ?

[sumdumass]

A treaty carries under a different set of laws then a contract. While they are similar in most respects, you can't goto a superior court to settle disputes with the laws of just one country. A treaty is different then just a contract.