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Proposed Final ACTA Text Published 148

Posted by timothy
from the oh-honey-let's-do-some-actas dept.
ciaran_o_riordan writes "The US Trade Representative has published a text which, subject only to a last legal review, is proposed to be the final text of ACTA. The differences between this text and last month's, from the Tokyo round, are mostly cosmetic but there's an important positive change giving signatories the option of excluding patents from section 2. As for software patents, most harm has been avoided. If signatories make use of the section 2 exclusion option, there might be no harm at all. Lobbying for this will be important. Meanwhile, the many problems regarding Digital Restrictions Management, and the extra powers given to businesses to obtain personal and identifying information about accused copyright infringers "in the Digital Environment" are still there (mostly section 5). Earlier texts were much worse. The improvements in recent months are surely due to public outcry, leaving us indebted to the anonymous friends who scanned and leaked the various secret versions and the activists who made text versions and spread them across the Internet. There's a chance we can still influence the text in this legal review phase, but the bigger task ahead will be working on the national implementations. It's not yet clear what procedure the US will require for its own ratification."
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Proposed Final ACTA Text Published

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  • No problem here (Score:3, Insightful)

    by rastoboy29 (807168) on Tuesday November 16, 2010 @06:11PM (#34248784) Homepage
    The U.S. Senate simply needs to not ratify it.

    Right?
    • Re: (Score:3, Informative)

      by robinsonne (952701)
      I'm pretty sure the Senate will ratify whatever their corporate overlords tell them to. And I don't care if previous texts were much worse....that doesn't change the fact that ACTA sucks.
      • Re:No problem here (Score:5, Insightful)

        by icebike (68054) on Tuesday November 16, 2010 @06:23PM (#34248908)

        Not if you get on them HARD right now.

        Many in the Senate are still stinging from the voter rebuke that just occurred, and the rest are not in a mood to pick a fight with the voters.

        The entire thing should simply be rejected due to the excessive secrecy with which it was negotiated. Even if this treaty gave a gold brick to every citizen, capped punishment at one dollar and 50 cents, and baked you pies every Wednesday, the mere fact that they had to build a world wide conspiracy of silence to try to get this one over means it should be Dead On Arrival in the Senate.

        But I suspect it might never go to the Senate. Obama will simply try to impose it by edict as a "trade agreement" without treaty status.

        Treaties modify the US Constitution. People have to realize that.

        • Re:No problem here (Score:5, Insightful)

          by DragonWriter (970822) on Tuesday November 16, 2010 @06:35PM (#34249042)

          Treaties modify the US Constitution. People have to realize that.

          No, people don't need to realize that, since its not true.

          The Constitution, treaties ratified by the Senate, and federal laws adopted under the authority granted by the Constitution together form the "supreme law of the land", superceding the constitution and laws of the states (U.S. Const, Art. VI) but the only thing that modifies the U.S. Constitution is amendments to the Constitution adopted under Article V.

          Putting falsehoods in bold print doesn't make them true.

          • Re:No problem here (Score:5, Informative)

            by icebike (68054) on Tuesday November 16, 2010 @06:46PM (#34249176)

            The "Supremacy Clause" of the U.S. Constitution is contained in 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.

            So your own citation proves you wrong.

            • Re: (Score:3, Informative)

              by Tauvix (97917)

              Not so. The text that you put in boldface does not indicate that the Constitution itself is changed, just that it is overridden. There is a subtle difference. For example, if a treaty expires, or is overturned by the courts, or deratified by Congress, any laws that it put into place that override the Constitution are null, and the Constitution takes over.

              • Re: (Score:2, Interesting)

                by icebike (68054)

                While in effect, Treaties are the same as amendments.

                They CHANGE the Constitution.

                The fact that Amendments and Treaties can be repealed does not change that fact.

                Amendments and Treaties carry the full force of the Constitution. They become a part of the constitution.

                • Re:No problem here (Score:4, Informative)

                  by DragonWriter (970822) on Tuesday November 16, 2010 @08:57PM (#34250400)

                  While in effect, Treaties are the same as amendments.

                  They CHANGE the Constitution.

                  Saying that, even putting "change" in all caps, doesn't make its so. Treaties don't change anything. Treaties, taken along with federal laws and the federal Constitution, supercede state laws and state constitutions and are binding on state judges. That's all the Supremacy Clause says.

                  Amendments and Treaties carry the full force of the Constitution. They become a part of the constitution.

                  Wrong. Amendments under Article V change the Constitution. Treaties don't change the Constitution any more than regular laws passed by Congress do, and there is nothing in the Constitution that suggests otherwise.

              • by Gilmoure (18428)

                I bet the Enterprise could beat the Constitution.

              • Re:No problem here (Score:5, Informative)

                by JesseMcDonald (536341) on Tuesday November 16, 2010 @08:53PM (#34250370) Homepage

                It doesn't even indicate that the Constitution is overridden. It just says that the U.S. Constitution, the national laws which implement it, and national treaties, taken together, override state constitutions and state laws. It doesn't spell out any particular precedence between the various national elements. Based on just the quoted text, the U.S Constitution could still take precedence over treaties. After all, it certainly takes precedence over national laws, which are part of the same list.

            • by khallow (566160)

              and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

              That doesn't say that treaties override the Constitution. Instead it says that the "supreme law of the land", which includes treaties, overrides the judicial power of any state.

            • Isn't the text you copied EXACTLY what the GP said?

              Are you interpreting the "Constitution" in "Constitution or Laws of any State" to mean the US Constitution? Wouldn't it be a much more straightforward interpretation that this is referring to state constitutions?

              You seem to be suggesting this reads basically:

              This [United States] Constitution and [laws and treaties] ... shall be the supreme law of the land ... no matter what the [United States] Constitution and any State law says.

              The overall context and pur

              • by icebike (68054)

                The overall context and purpose of that sentence seems to make it patently clear that is rather "{Constitution or Laws} of any State".

                No, because there were no State Constitutions. There was only one State Constitution [wikipedia.org] (MASS) predating the US Constitution.
                Most states still had Charters. It did not become in vogue to have a Constitution until AFTER the US Constitution 1789 ratification date.

                The words "The Constitution" everywhere else in The Constitution refer to the Constitution of the United States (as proposed).

                • The words "The Constitution" everywhere else in The Constitution refer to the Constitution of the United States (as proposed).

                  If you take the words "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" in Article VI to mean "any Thing in the Constitution [of the United States] or Laws of any State to the Contrary notwithstanding" rather than the more obvious "any Thing in the (Constitution or Laws) of any State to the Contrary notwithstanding", then you have to believe that it

            • by Tacvek (948259)

              That clause says the Constitution, federal laws, and treaties overrule state constitutions and law. to interpret that last "Constitution" to mean the Federal Constitution would require that Federal Laws override the Federal Constitution, which is absurd.

              • by icebike (68054)

                The effect of treaties is to amend the constitution.
                A ratified treaty holds the same sway as an ammendment.

                Argue ans split hairs all you want, the fact remains that the Supreme Court has yet to hold a treaty unconstitutional [asil.org].

                It has NEVER happened.

                Therefore, The point remains that if this treaty is ratified, we are stuck with it just as much as we were stuck with any other amendment to our constitution, until repealed. If any provision violates our Constitution, history has demonstrated in EVERY instance th

                • The effect of treaties is to amend the constitution.

                  No, it is not.

                  A ratified treaty holds the same sway as an ammendment.

                  No, it doesn't. The Supreme Court has ruled on many occasions, e.g., that a simple federal statute can abrogate a treaty (just as it can repeal a law.) Federal statutes cannot remove Constitutional amendments. A ratified treaty, then, has priority similar to that of federal statute law, but not the greater priority of a Constitutional provision.

                  Argue ans split hairs all you want, the fact

                • by rtb61 (674572)

                  Treaties in reality are empty whishy washy things and countries only stick to them for as long as they want to. It basically is an excuse for corrupt politicians to point to the treaty and say, we can't do that because we have a treaty, at which point the citizens either shut up or remove the corrupt politician and replace them with one who will ignore the treaty.

                  Treaties have been ignored all the time through out human history. The current government can make all the bullshit crappy treaties it wants to

            • Re:No problem here (Score:5, Insightful)

              by DragonWriter (970822) on Tuesday November 16, 2010 @08:54PM (#34250378)

              The "Supremacy Clause" of the U.S. Constitution is contained in Article VI:

              Yes, it is. Too bad you don't understand what it says.

              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.

              So your own citation proves you wrong.

              No, it proves me right. Let me refresh your memory on what I said, which was:

              The Constitution, treaties ratified by the Senate, and federal laws adopted under the authority granted by the Constitution together form the "supreme law of the land", superceding the constitution and laws of the states (U.S. Const, Art. VI)

              And -- that's exactly what Article VI says. To avoid any confusion from reading too much at once, and with your oddly placed emphasis, lets break it down. First it defines what the supreme law of the land shall be:

              "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;"

              IOW: The Constititution, federal laws, and ratified treaties are the supreme law of the land.

              Then it goes on to say what it means for those things to 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."

              IOW: The things that are defined as "the supreme law of the land" in the first clause (the Constitution, federal laws, and ratified treaties) are binding on State judges and superceded the constitutions and laws of the states.

              It does not say that treaties modify or supercede the federal Constitution, any more than it says that federal statute law modifies or supercedes the federal Constititution. It just says that, taken together with the federal Constitution, treaties and federal laws supercede state constitutions and laws, and are binding on state judges.

            • In "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" refers to the state constitutions not the U.S. Constitution. Neither treaties nor federal laws may be in conflict with the U.S. Constitution. State constitutions and laws are subordinate to the U.S. Constitution, federal laws and treaties.

              The U.S. Constitution is supreme over all other legislation.

            • by whoever57 (658626)
              You might want to read this page. [justia.com]
            • by Jaysyn (203771)

              You're wrong & there has already been a Supreme Court case regarding it. Re: Reid v. Covert, October 1956.

              Stop spouting this nonsense.

            • by jmcvetta (153563)

              The controversy here seems to hinge on:

              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.

              The key phase can be interpreted as

              any Thing in the Constitution or (Laws of any State) to the Contrary notwithstanding

              or

              any Thing in the (Constitution or Laws) of any State to the Contrary notwithstanding

              If the first meaning were intended, the sentence would have been constructed with "this Constitution" rather than "the ...". Therefore I think the latter interpretation is correct. Treaties are superior to state law & constitutions, but not to the federal Consti

            • http://en.wikipedia.org/wiki/Reid_v._Covert [wikipedia.org]

              The constitution supersedes any treaty. Period.
        • Re: (Score:3, Informative)

          by mysidia (191772)

          Treaties modify the US Constitution. People have to realize that.

          No. False. What the constitution says is:

          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.

          In other words, these things are the supre

          • by icebike (68054)

            You will find that self executing treaties are not all that rare, and even non self executing treaties often affect everything up to and including the USC.

            But its worse than that, because the Supreme Court has NEVER declared a treaty unconstitutional. EVER [asil.org].

            So a ratified treaty ends up having the same effect as an amendment to the constitution. No judge will rule against it.

        • Treaties modify the US Constitution. People have to realize that.

          No they don't. According to Article VI of the U.S. Constitution says "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."
          This means that treaties override state constitutions not the U.S. Constitution.

        • by Jaysyn (203771)

          Treaties modify the US Constitution.

          Is this one of those lies that become true if you say it often enough?

        • Re: (Score:3, Interesting)

          by Omestes (471991)

          Many in the Senate are still stinging from the voter rebuke that just occurred, and the rest are not in a mood to pick a fight with the voters.

          If they are stinging from it, they are morons. It happens every damn midterm, and every damn midterm people paint it as some big revolution, or some big protest. If, in two years, a Republican is sitting in the White House, two years later we will have a Democratic senate and house. Its how things work. It is a completely normal, and predictable, event.

          Its actual

    • True. We should work on lopping off all of our senators' hands and giving them all laryngitis the day of the vote.

    • by blair1q (305137)

      Easy peasy. Tell them it's a new tax on REITs.

    • Re:No problem here (Score:5, Informative)

      by idontgno (624372) on Tuesday November 16, 2010 @07:31PM (#34249728) Journal

      I know that Slashdot frowns on this kind of thing, but if you'd followed the last link [american.edu] in TFS, you would have discovered that the US Trade Representative has declared that ACTA will take effect in the US by Executive Order. Why? 'Cuz they said so.

      That's right, folks, it's a treaty, but it's not a treaty! So that little part of the U.S. Constitution [wikipedia.org] requiring ratification by the Senate doesn't apply! Really! This is not the treaty you're looking for!

    • by Yvanhoe (564877)
      I'm hoping the EU will be wise enough to reject it, too. They have been very angry about the secret negociations.
      • by mcvos (645701)

        Well, the Europarliament and various national parliaments have. But it's still not entirely clear to me whether they'll be having any say in this. They should, of course, because much of this treaty goes way beyond established laws, but the EU isn't always as democratic as it should be.

  • Copyrights? (Score:5, Insightful)

    by Anonymous Coward on Tuesday November 16, 2010 @06:13PM (#34248812)

    Remember, the original goal of copyright was to give exclusive copy rights to the authors for a limited period in exchange for their work to become public domain after that limited period.

    A lot more people would agree to abide by copyright laws if they had not been twisted into the lifetime + 50 years locks that they are now.

    • Re:Copyrights? (Score:4, Informative)

      by theheadlessrabbit (1022587) on Tuesday November 16, 2010 @06:17PM (#34248854) Homepage Journal

      Remember, the original goal of copyright was to give exclusive copy rights to the authors for a limited period in exchange for their work to become public domain after that limited period.

      A lot more people would agree to abide by copyright laws if they had not been twisted into the lifetime + 50 years locks that they are now.

      I believe it's now life +70 years in Britain and America.

      life of the artist should have nothing to do with it. it should be 'x years from date of first publication'

      • Re: (Score:3, Interesting)

        by hedwards (940851)
        Assuming it ever expires. I think that it's a one off for Peter Pan, but it does have an eternal copyright at least as far as the UK goes.
      • by Andy_R (114137)

        In Britain, it's actually life + 70 + next January the 1st. Obviously this makes perfect sense, we clearly need to penalise those dead creatives who make the silly mistake of dying near the end of the year by giving them less protection.

        By the way, if life + 70 + next January 1st isn't enough for you, just use the Silmarillion loophole... name some much younger people as co-authors. Even if they didn't do anything at all, as long as you say they did, your protection will extend to the date of the last one o

      • Life+70 for works copyrighted by an individual, or a fixed term of 95 years from publication (US term) for works in which the copyright is held by a corporate entity. It's widely anticipated that come around 2020 Disney will lobby for a further extension in order to ensure they retain the copyright to Plane Crazy and Steamboat Willie - and with them the copyright to Micky Mouse, the character around which their branding is built.
  • Wow. (Score:2, Insightful)

    by unity100 (970058)
    talk about democracy. we were just discussing how capitalism easily corrupts and dominates a democratic storefront, in the u.s. senate internet censor bill discussion, and now there is this. this doesnt even involve any democratic proceedings. elected governments just sign a treaty, out of one person's hand, and it binds all signatory countries. in most of them, it wont even need to be ratified, because international treaties are binding.

    and, any fool who believes their house of representatives wont rati
    • Re: (Score:3, Interesting)

      by characterZer0 (138196)

      Big business may be corrupting the elected representatives, but the blame still lands at the feet of the voters who keep voting the same people back into office.

      • Re: (Score:3, Interesting)

        by unity100 (970058)
        big business is not corrupting elected representatives. big business is making sure that their candidate gets elected, through the mechanics of capitalist system.

        big business owns big media. big business has big bucks to spend. even if your candidate has money to spend, if big business owning the big media doesnt want him to get elected, they wont just give airtime to him/her in their media outlets. and, your candidate wont win.

        its as simple as that.

        that is of course leaving aside the fact that big
        • by hedwards (940851)
          Not really. Most of what I know about politics comes through the media and yet I reach a very different conclusion than most. Perhaps it isn't so much the media as the sloth exercised by the voters in failing to research any of the topics at hand.
          • Re: (Score:3, Interesting)

            by unity100 (970058)
            vast swaths of the society do not have the means and the time to work on a high level of political awareness through culture and digesting heaps of information. they have to survive, they have to take care of their family.
            • Re: (Score:3, Insightful)

              by idontgno (624372)

              they have to survive, they have to take care of their Farmville.

              FTFY.

              OK, not universally true, but true to an extent that pretty much guarantees the success of...OOH SHINY!

              "Panem et circenses." Our culture surely has the "circenses" part down pat.

              • well (Score:3, Interesting)

                by unity100 (970058)
                this way or the other, that is what you have, and have to work with. you cannot just allow private interests dominate every aspect of life, brainwash citizens, and just say that 'well, they should have been smart'. they may be going for 'oooh shinies', but, they are still people, and they have a right to not be dominated, fooled, frauded and oppressed.

                if the good people dont act, evil has the day.
            • Poor, poor excuse. It doesn't take that long to realize that they are ruled mostly by the rich and by people who couldn't care less about them except for their vote. It's just that the average person is so indoctrinated that they think they're making a difference with their pointless little votes for the same two parties over and over.

      • Re: (Score:3, Insightful)

        by mirix (1649853)

        Part of the cause of that is the lack of proportional representation, though. So people get stuck in the whole "Go ahead, throw your vote away" dilemma.
        They end up voting for the lesser of two corporate ruled evils, as opposed to a party that is more in line with what they actually want.

        Well, that coupled with People believing myths due to either propaganda or outright stupidity (ie. republicans being for small govn't, which is patently false these days; or that dems are going to implement any sort of democ

        • Re: (Score:3, Interesting)

          by falconwolf (725481)

          Part of the cause of that is the lack of proportional representation, though.

          No, the biggest problem is the power and size of government. Even with parliamentary systems with proportional representation major parties can be forced to include small and evil parties to form a governing coalition. Witness Israel, whenever the government holds serious talks with Palestinians it has to deal with small ultra conservative Jewish parties who oppose giving Palestinians any land. That is what happened in the talks

    • by icebike (68054)

      The house has nothing to do with ratifying Treaties.

      • by unity100 (970058)
        'house' here means house of representatives. it means any kind of legislative body acting in any given country. the only country is not united states you know.
    • Re: (Score:3, Informative)

      Your rant would make more sense if you demonstrated any knowledge of the legal ways that a treaty becomes law in the U.S.. In the U.S., the house of representatives have nothing to do with treaties. Treaties must be ratified by the Senate.Furthermore, it hasn't been that many years since a President signed a treaty that was resoundingly rejected by the U.S. Senate. Bill Clinton signed the Kyoto Accords and the U.S. Senate voted 98-0 to reject them.
      • by unity100 (970058)
        house of representatives is the general term that is used in political literature/science to denote an assembly of representatives elected by the people in order to make legislation.

        the only country in the world is not united states, the only house of representatives in the world is not u.s. congress. and the only place where this term is used, is not united states daily speech.

        i cant believe how u.s. centric many americans are. as if nothing exists or happens outside united states. now, house of repr
        • by idontgno (624372)

          house of representatives is the general term that is used in political literature/science to denote an assembly of representatives elected by the people in order to make legislation.

          [Citation Needed]

          Seriously. Can you provide one example from reputable journalistic or academic sources of the phrase "house of representatives", either in English or from an unambiguous literal translation to English, where that phrase is used generically to mean "legislature"? I would be quite curious to see it.

          Now, if you

    • by Nyder (754090)

      Much like lawyers win with suing, Corporations win with politicians. Meaning, it don't matter who you vote for, the corporations win either way.

    • talk about democracy. we were just discussing how capitalism easily corrupts and dominates a democratic storefront

      Part of Capitalism [merriam-webster.com] is free markets. Well free markets do not exist. The closest we've come to it was in America in the 1820s and '30s and it is what inspired Alexis de Tocqueville to write "Democracy in America [amazon.com]". Of course there was the black mark on free markets called slavery.

      Falcon

  • Republicans do something bad; partisans say "But Clinton did it too".
    Democrats do something bad; partisans say "But Bush did it too".
    Party loyalists are the problem. Both major parties are willing to allow the stripping of people's rights so long as the other party did it first.
  • From the last link, and has already been stated in Slashdot before:

    "The USTR has stated repeatedly that ACTA will enter into force in the US as an executive agreement that does not require any congressional role"

    So in the words of Abraham Lincoln:

    ". . . that government of the people, by the people, for the people, shall not perish from the earth."

    . . . until signed away, by Executive Agreement, despite the will of the people.

    • ". . . until signed away, by Executive Agreement, despite the will of the people."

      Uh, the people never really had much power (which, as we see here, was a mistake). The government is making this already bad situation worse, yes, but it was always broken.

      If the people really wanted to, they could overthrow the government using their sheer numbers, but too many people are preoccupied with their unimportant little activities to care about things such as freedom and privacy, leaving people who would actually do

      • Bread and circuses worked well as a way to keep the people content. Fries and television is many times as effective. Though I have suggested to some tea-partier types that they protest the growth of the government by refusing to pay any form of taxation until it's shrunk to a size they consider reasonable, if only so I can be amused at their attempt to avoid going to jail for their princibles.
  • "It's bad now, but it could be worse! Everyone just stop trying to get rid of the ACTA, because if something could be worse, there's no sense in improving it!"

    I fear that's what some people are going to think. Either that or they will figure that it's not as bad as before and not want to waste their time. The ACTA is, was, and always will be a terrible idea and it must be eliminated.

  • by Shompol (1690084) on Tuesday November 16, 2010 @08:05PM (#34250018)

    Earlier texts were much worse.

    Stalin: Let's execute all dissidents and paint the Mausoleum green!
    Minister: Why green, comrade Stalin?
    Stalin: I knew there would be no objections about the first part.

  • Dear USA,

    We noticed that you came up with some agreement called ACTA where you think you will get money to bail out your rapidly sinking economy using spurious "Intellectual Property" claims, and as a means of holding back innovation. We own you lock stock and barrel, so play our tune now.

    Your Sincerely,
    China

  • Pirates! (Score:5, Insightful)

    by tobiah (308208) on Tuesday November 16, 2010 @08:40PM (#34250260)

    The treaty spends a lot of time on "pirated copyright goods", and the bits about "counterfeit trademark goods" seem tacked on. I could find no mention of the public good, the rights of licensees, fair use, public domain, media transfer/backup copies, etc. There is a good bit about the minimum civil and criminal procedures and penalties that should be in place and made available to businesses and rights holders. It seems to be exclusively intended to ensure that organizations like the RIAA can sue and harass "pirates", and god willing, get them a healthy jail sentence too. This is interesting in that it might provide some cover for rights-holder actions that are an abuse of the court system (mass filings) and criminal harassment.

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