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New IP Treaty Looming?

Posted by ScuttleMonkey on Tue Jun 13, 2006 03:16 PM
from the sailing-into-troubled-waters dept.
Media United States
An anonymous reader writes "According to an article by James Boyle in the Financial Times, the United States is helping push a Treaty that would create an entirely new type of intellectual property right in the US, in addition to copyright, covering anything that is broadcast or webcast. (Regardless of whether the work was in the public domain, Creative Commons Licensed etc, the broadcaster would control any copies made from the broadcast for 50 years.) Boyle argues that this is dumb, unconstitutional, and anyway should be debated domestically first."
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  • "Nothing for you to see here. Please move along."

    Touche.

  • Come on... (Score:5, Insightful)

    by bombadillo (706765) on Tuesday June 13 2006, @03:20PM (#15527297)
    Boyle argues that this is dumb, unconstitutional, and anyway should be debated domestically first."

    Having debates on U.S. Policy is sooo pre-2001. Try again in January 2009...

    • Re:Come on... (Score:3, Insightful)

      by Anonymous Coward
      Nah, we're having plenty of debates. The people in control have just realized that they can ignore the debates with no negative consequences.

    • Re:Come on... (Score:3, Interesting)

      by rob_squared (821479)
      "Having debates on U.S. Policy is sooo pre-2001. Try again in January 2009..."

      I disagree, debate is common. Its a good handwaving, misdirecting, tactic.

      Now, if you said 'logic' and 'reason' then I'd agree with you.

    • Re:Come on... (Score:3, Funny)

      by Cheapy (809643)
      If we don't want it to pass, all we gotta do is say that homosexuals will be able to marry.

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

        by stinerman (812158)
        Since the Constitution is the law of the land and no law is higher, any laws derived from a treaty that run counter to the Constitution are null and void.

      • Re:Unconstitutional? (Score:5, Informative)

        by Vancorps (746090) on Tuesday June 13 2006, @04:18PM (#15527770)
        The constitution doesn't give us rights, its restricts what government can do. This is something that's been lost on most people for some reason. By default we're allowed to do whatever we want. The constiution merely says the government can do this to stop you because your freedom is interfering with the freedom of another citizen. That is the judge of whether something is constitutional or not.

        Granted, I have not done an in-depth study of the constitution either, that was just how I was taught about it in school.

        Of course, just because something isn't constitution doesn't mean it won't happen anyways.
        [ Parent ]

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

        by Chowderbags (847952)
        Read up on Reid v. Covert, a very important precident (probably more and more as we go forward) that says that all international treaties must respect the laws of the Constitution, preventing Congress from authorizing actions that it otherwise could not.
        • "I actually am a constitutional scholar."....."I must've been a horrible person in my last life, 'cause I came back as a guy on the help desk."

          I think it's tremendous your country is willing to fund a help desk to resolve Constitutional dilemmas. That degr

  • Our country... (Score:5, Funny)

    by grasshoppa (657393) <skennedy.tpno-co@org> on Tuesday June 13 2006, @03:22PM (#15527308) Homepage
    Our country is run by lawyers. No where is this more obvious than when seeing the lawmaking process. Greased palms, closed door deals.

    I have a solution, however. The problem is there are too many lawyers. They have no natural predator, as it were. I propose,then, a lawyer hunting season. Say, from Sept to March. Trophies are based on bank account size.

    Of course, mounting your kill is perfectly acceptable.
    • Dibs on Marcia Clark!

    • Re:Our country... (Score:3, Insightful)

      by pete6677 (681676)
      This is only possible due to a lack of informed voters. When less than 30% of the people bother to vote, who really runs the government? In other words, we could change this situation if we wanted but we are collectively too lazy and content.

      • Re:Our country... (Score:3, Informative)

        by whoever57 (658626)
        Your comment is very true. How much influence would wealthy companies and individuals have if a higher proportion of the people actually informed themselves and then voted?

        There is a significant problem of lack of choice though, and on NPR this morning was

        • Getting more alternatives (Score:5, Interesting)

          by jd (1658) <imipak@@@yahoo...com> on Tuesday June 13 2006, @05:03PM (#15528046) Homepage Journal
          It's tough to get more alternatives when the bar to entry is so impractically high as to essentially form a protected duopoly. Even Britain, where the bar is much lower, is struggling to form a third party with any significant influence. The Liberal Democrats - even when both Conservatives and Labour are discredited - actually LOST seats in the recent(ish) local byelections.


          I have no idea how you could have a genuinely open, fair, multi-party system. It would presumably need to borrow some ideas from proportional representation, as that seems to be the only method of reliably getting multiple parties into politics. Italy, however, shows the risks of the opposite extreme - having too many parties. There, the former Prime Minister is actively working to bring down the current Government in an effort to pull off a coup and seize power. There very nearly wasn't a current Government, as he'd refused to step down even after losing the election.


          My best guess at this time would be for the top two or three candidates to represent the constituancy in direct proportion to the percent of vote they received. So, a person getting 50% of the vote would have 50% of the voting block. This avoids the whole problem of what to do in a tie, as you'd simply have more than one person with the same voting strength.


          I also think that the system needs a third, unelected house, where members are selected from the jury pool and who can place bills on trial, as per any other trial. The idea would be to have a group of anonymous people that lobbyists could not identify to corrupt, and who would retain any influence for such a short time that power itself could not corrupt them.


          What I do not know is how you could implement either of these ideas within the framework of the US Constitution, or how they could be adapted to fit within the expectations of having a clear line of responsibility, or how they could be debugged on the basis of how political systems actually work in practice.


          I guess that information, if anyone did have it, would be covered by this new IP treaty and could not, therefore, be divulged except at a great price.

          [ Parent ]

      • Re:Our country... (Score:3, Insightful)

        by bsartist (550317)

        This is only possible due to a lack of informed voters.
        I completely agree with that. But...

        When less than 30% of the people bother to vote, who really runs the government?
        I don't know if simply increasing the turnout would help. If 80% of the people

      • Re:Our country... (Score:3, Insightful)

        by doormat (63648)
        Yea but what communication channels do you (a third party) have to reach people? For people to do their own research?

        Newspaper
        TV/Radio
        Internet

        Now rules have come along lately and changed ownership rules for the first two, and lo-and-behold net neutrality c
    • Of course, mounting your kill is perfectly acceptable.

      Eeeewwww!!!

      Mounting a dead lawyer? That's rather ghoulish don't you think?

    • Re:Our country... (Score:3, Insightful)

      by plague3106 (71849)
      We have too many lawyers because we have too many laws. Eliminate the excess laws, and we'll have less lawyers as a side effect.
      • We have too many lawyers because we have too many laws. Eliminate the excess laws, and we'll have less lawyers as a side effect.

        But we have too many laws, because we have too many lawyers, therefore we need too many lawyers - etc.

  • Catch 22 works for me (Score:3, Insightful)

    by Anonymous Coward on Tuesday June 13 2006, @03:23PM (#15527316)
    Copyleft content can only be distributed under it's copyleft license. If someone wants to change the license terms then the redistribution license is void and the copyright owner can seek civil remedies for infringement. With regard to copyleft content, these bills are stillborn!

  • So who's the broadcaster? (Score:5, Insightful)

    by Short Circuit (52384) * <mikemol@gmail.com> on Tuesday June 13 2006, @03:23PM (#15527323) Homepage Journal
    The guy who owns the server, the guy who paid for an account on the server, or the ISP the server colos at or is connected to?

    • Simple answer: (Score:5, Interesting)

      by schon (31600) on Tuesday June 13 2006, @03:38PM (#15527463) Homepage
      The guy who owns the server, the guy who paid for an account on the server, or the ISP the server colos at or is connected to?

      The one with the most money to spend on lawyers.
      [ Parent ]

  • Stupid (Score:5, Informative)

    by neonprimetime (528653) on Tuesday June 13 2006, @03:23PM (#15527327) Homepage Journal
    What if only Fox or CBS has the footage of a particular public event? Do we let the broadcaster eviscerate the ideas of fair use, prohibiting other networks from showing fragments so as to comment on the events, or criticise the original coverage? The proposed treaty text allows for fair use-like exceptions but does not require them. Once again, we harmonise upward property rights for powerful commercial entities, but leave to individual states the discretion whether and how to frame of the equally crucial public interest exceptions to those rights. Increased property rights for broadcasters are required. The public interest in education, access, and free speech is optional. (Among other things, most of the recent drafts would outlaw home recording of TV and radio unless a special exception was put into the law, state by state.)

    Well written article. This sounds like a poor idea ... that will more than likely pass simply because of the big company backing ... of course it would be almost impossible to enforce at the individual level ... nobody has the resources to check such things as recording tv or radio programs on your home pc, tape deck, etc.

    • Re:Stupid (Score:3, Interesting)

      by Kadin2048 (468275)

      nobody has the resources to check such things as recording tv or radio programs on your home pc, tape deck, etc.
      That's [arstechnica.com] what [eetimes.com] you [lwn.net] think [extremetech.com].

  • You're missing the whole point... (Score:5, Insightful)

    by dubmun (891874) on Tuesday June 13 2006, @03:24PM (#15527336) Homepage Journal
    It is our policy to push our ideas on as many nations as possible.

    It helps distract from the fact that the people of our country have no say of their own...

  • Understanding the US (Score:4, Insightful)

    by argoff (142580) on Tuesday June 13 2006, @03:26PM (#15527357)
    You see, the US and Micrisofts and Hollywoods "vision" of the future is that instead of providing goods and services to pay off the huge US debts, they provide IP. While it's an interesting trade off: phoney property for printed up paper money, the problem is that for people to live day to day they need real goods and services. The problem is also that the information age implies just the opposite, information is becomming commoditized which means that it's service value is becoming worth more than it's IP value. Not to mention, that the information age is also making it impossible for the Fed to lie to people about the value of their money. Mees thinks all hell is about to break loose when the real world kicks in and ripps these people a new one.
  • I'm always skeptical about anything that puts webcasting and broadcasting in the same boat.

    Yes, superficially they appear very similar. A single originating source distributing to the masses. But there the similarities stop.

    With broadcasting there are cert

  • I'm sure (Score:2, Funny)

    by LoonyMike (917095)
    ...Piratbyrån's opinion will be taken into account.

  • Here's the scam (Score:5, Insightful)

    by HaeMaker (221642) on Tuesday June 13 2006, @03:30PM (#15527386) Homepage
    The theory is that both copyright and treaty-making are in the constitution. The RIAA and the MPAA are whispering in the ears of congress, "If you pass a law giving us new rights, it can be constitutionally challenged and we lose, but if you make it part of a treaty, then we can contend that overturning the new treaty is just as unconstitutional as granting us a new right. We can contend that the Supreme Court does not have the power to overturn a treaty."

    Ka-ching!

    • Re:Here's the scam (Score:3, Insightful)

      by EvanED (569694)
      By my understanding, treaties don't actually do anything domestically. If the US signs and ratifies a treaty, it doesn't actually do anything except demonstrate the country's commitment to the treaty. The Congress would then have to pass a law to make US s

      • Re:Here's the scam (Score:3, Interesting)

        by jdavidb (449077) *

        I think that may be the way it works in Europe, but in the United States, the Constitution states:

        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 Auth

      • Re:Here's the scam (Score:5, Informative)

        by Kadin2048 (468275) <slashdot DOT kadin AT xoxy DOT net> on Tuesday June 13 2006, @04:19PM (#15527771) Homepage Journal
        No, that's not accurate at all. Treaties entered into by the United States Congress on behalf of the United States have the full force of law behind them. In fact at various points in our history there has been contention as to whether they are above or below the Constitution in terms of weight (personally I find the assertion that any treaty can possibly come before the Constitution to be a both ridiculous and dangerous).

        Here's the short, short version. The Constitution discusses treaties in its "supremacy clause [wikipedia.org],"
        "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."
        Now, this seems pretty clear to me that the order of precedence is Constitution->Laws->Treaties, but for some reason, others have disagreed.

        The problems all got started in 1918 with Missouri v. Holland [wikipedia.org], where the Congress, seeking to regulate bird hunting (which it doesn't have a clear way in the Constitution to do -- this was before the courts expanded Interstate Commerce to include everything you could possibly imagine), entered into a treaty with the U.K. to regulate bird hunting. Basically, this eventually went up to the USSC, which declared that treaties entered into by the USA overpower States' rights under the 10th Amendment.

        This, in time, started to make people rather nervous, since it meant that the executive and legislative branches of government could basically do anything they wanted, if they could enter into a treaty that required it. There were some unsuccessful attempts at revising the Constitution to prevent this, and make it clear that treaties weren't the supreme law of the land, but were rather limited by the Constitution itself: this was the failed Bricker Amendment [wikipedia.org]. I happen to think this would have been a very good idea, and it's a shame it didn't go through.

        The establishment of the current situation came with Reid v. Covert [wikipedia.org], where the USSC overturned the conviction of a civilian military dependent by a court martial, saying that a treaty doesn't overpower the Constitution in capital cases. (Why they limited it to capital cases, I have no idea, and one of the justices basically asks this in the opinion.) But basically it was seen as a clarification that you can't have treaties that blatantly violate the Constitution. (It also has interesting bearing on the current situation vis a vis Gitmo detainees and the WoT, but that's another story.)

        There may have been more cases since then, but that's as far as I've read them. Basically, treaties right now have some effect which is greater than conventional Federal laws (or at least not bound by the traditional powers of Congress, apparently), but less than the Constitution. So it would still be possible, were the Court so inclined, for them to strike down a very bad WIPO treaty on Constitutional grounds. Whether you think the USSC would actually do that, in its current state and incarnation...well, I'll leave that for another comment.
        [ Parent ]

        • Re:Here's the scam (Score:3, Insightful)

          by cpt kangarooski (3773)
          They've been known to. They are in an independent and equal branch of government and insulated from political concerns. (And also the President doesn't introduce legislation, but he can support it when some lacky in Congress does it for him)
  • I don't want to be too off-topic or political here, so if I am, I apologize, but I have a few honest & serious questions.

    Most people I know agree that copyright is messed up, and this proposal just makes the situation even more complicated.

    From TFA: "r

  • Other links (Score:3, Informative)

    by torunforever (930672) on Tuesday June 13 2006, @03:31PM (#15527393)
    Since Boyle first wrote about this last September, I was wondering what others had to say about it. Here's a blog entry from Lawrence Lessig [lessig.org]. Not too much written there, but it led me to an EFF page [eff.org] and CPTech action page [cptech.org].

  • Question (Score:3, Interesting)

    by OpenSourced (323149) on Tuesday June 13 2006, @03:32PM (#15527403) Journal
    anything that is broadcast or webcast

    Er... What if I speak about it ? Will I be covered. ? I mean could I sue anyone repeating what I said ? :o)

  • In related news, FedEx & UPS push for an IP ac (Score:5, Interesting)

    by MasterC (70492) <cmlburnett@nOSPam.gmail.com> on Tuesday June 13 2006, @03:38PM (#15527468) Homepage
    In related news, FedEx & UPS join forces to get the FedUPS Act of 2006 passed that would give transportation companies intellectual claim to every copyrighted material they transport.

    Seriously, why should FedEx or UPS lay claim on a book they transport? Why is a (TV) broadcaster any more special because they transmit a signal? Cuz they put there little logo in the bottom right? Or because they do all kinds of fancy pop-outs that advertise other shows?

    Neither FedEx nor a broadcaster do anything original, why do they get protection from Big Brother?

  • Repackaged content deserves copyright?! (Score:3, Funny)

    by erroneus (253617) on Tuesday June 13 2006, @03:41PM (#15527490) Homepage
    Are you kidding me?! Take some free content and repackage it and suddenly it gets a copyright? There's GOT to be a way I can use this... I've got it!

    I'm going to repackage "The King James Version" and other versions of "The Bible" and then sue every church that attempts to teach from it.
    • You misunderstand the idea. Let's say some radio show broadcasts a dramatic reading of The Fall of the House of Usher,m by Edgar Allen Poe. That perfomance is covered by this, just as it's already covered by copyright. The story itself, however, remains
      • ...insofar as broadcasts deserve protection -- that is, to the extent that they include original creative work, even if they are derivative works -- they creator of the broadcast already is protected by copyright; as is the original underlying work. There

  • public domain? (Score:3, Interesting)

    by tomstdenis (446163) <`moc.liamg' `ta' `sinedtsmot'> on Tuesday June 13 2006, @03:48PM (#15527563) Homepage
    Gah you can't make something that is public domain and make it not public domain in terms of distribution.

    My head asploded.

    Tom

  • Wait, this isn't such a bad thing! (Score:3, Interesting)

    by izam_oron (942139) on Tuesday June 13 2006, @03:49PM (#15527568)
    Pirate steals stream, hosts it over P2P (and if it's on there, he doesn't care about intellectual property), millions of other people host it and suddenly everyone's an Intellectual Property holder! How can this be a bad thing? (Yeah, sort of naïve to beleive that, but it's worth a shot . . .)

  • Already in Europe (Score:4, Informative)

    by ewhac (5844) on Tuesday June 13 2006, @03:55PM (#15527612) Homepage Journal
    This sounds like an attempt to import into the US a goofy "right" that has existed in Europe for some time.

    It seems that whoever is first to broadcast a copyrighted work is granted a right, independently of the copyright holder, to enjoin redistribution of that work. In other words, the broadcaster gets right of first refusal for any material they were ever first to broadcast.

    It's not at all clear why they got this right in the first place (incentive to broadcast material they didn't produce themselves?), but today it's largely seen as highly anachronistic, and often described in derisive terms.

    Schwab

  • Marvelous (Score:3, Funny)

    by nbannerman (974715) on Tuesday June 13 2006, @03:55PM (#15527615)
    Dear US Government,

    Get stuffed.

    Yours sincerely,

    The Rest of the World.

    I have no problem with the US introducing stupid laws in their own country. But why on earth does this need to be pushed into the WIPO? Surely there are more important things to be worrying about than yet more rules to line the pockets of big business?

  • As a musician, my response is... (Score:3, Insightful)

    by element-o.p. (939033) on Tuesday June 13 2006, @04:25PM (#15527803) Homepage
    ...over my dead body!

    If I wrote, performed and recorded the material, then *I alone* (or in partnership with other musicians who contributed to these works) get to decide how the material is to be licensed. If I release something under a creative commons license (as I have), then it is free (as in "speech") for others to use, *PERIOD*.

    While I might be willing to sign over rights to my creative works to a publisher so that my works can be distributed, there's no way I would be willing to sign a contract that assigns the rights to my creative works to the broadcaster.

    • Re:Not unconstitutional (Score:3, Informative)

      by Kadin2048 (468275)
      The most interesting part about the history of U.S. treaty law happened in the 1950s, and was called the Bricker Amendment [wikipedia.org]. Before you go click on that link, let me give you the bad news first: it didn't pass. It came rather close, but it didn't make 2/3rd

      • Re:Not unconstitutional (Score:3, Interesting)

        by torstenvl (769732)
        I don't think so. Such an amendment would have been disastrous. It would make it impossible for the EPA to implement Kyoto (if we ever ratify the dang thing), impossible to outlaw torture (that's a non-chattel moral crime and, traditionally, the province o
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