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Editorial Your Rights Online

Getting DMCA Locked In Through The Backdoor 37

Posted by Hemos from the avoid-that-whole-review-thing dept.
pugugly writes "Findlaw's Writ has an interesting editorial (By a student) on the quietly signed Singapore-U.S. Free trade agreement, set for fast-track approval (Limited debate, no amendments). It has a clause in it requiring the signatories abide by DMCA provisions. Among other things, this could theoretically this would remove that annoying judicial oversight from the picture."
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Getting DMCA Locked In Through The Backdoor More

Getting DMCA Locked In Through The Backdoor

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  • Come on guys (Score:1, Offtopic)

    by (trb001) ( 224998 )
    Among other things, this could theoretically this would remove that annoying judicial oversight from from the picture.

    I know its content over presentation, but come on...two typos in one sentence?

    --trb

  • Similarities to the DMCA and Implications (Score:5, Informative)

    by metamathica ( 607019 ) on Monday May 19, 2003 @10:07AM (#5991159)

    The article is a little thin on actual textual references, so I spent a few minutes actually reading the treaty. Iâ(TM)m not a lawyer, but Iâ(TM)m fairly well educated in legal theory.

    I would first point out that a treaty with Singapore does not greatly restrict the United States. Should the Congress change its mind, this treaty would not create a substantial barrier to reform legislation. Its purpose is to prevent the manufacture and design of circumvention technologies in Singapore to protect U.S. copyright holders. It seems unlikely that Singapore worries much about Americans pirating their movies and music.

    The section of the treaty mentioned is the copyrights section. [ustr.gov]

    There are indeed comprehensive rules in the treaty very similar to that of the DMCA. It requires the prohibition of circumvention devices, defined as

    • marketed for circumvention
    • donâ(TM)t do much else
    • are primarily designed for circumvention
    It has exceptions for legal reverse engineering to achieve interoperation, academic security research, filtering content to protect minors and private investigations to determine security problems. It also seems to exclude public entities, nonprofits and libraries who might access data for archival purposes.

    Thereâ(TM)s also an amusing section on patents which suggests that non-obvious is synonymous with inventive step; useful is synonymous with capable of industrial application.

    It also prohibits the retransmission of TV and broadcast streams (on the Internet).

  • Can't "remove" judicial oversight (Score:5, Informative)

    by Jerf ( 17166 ) on Monday May 19, 2003 @10:11AM (#5991182) Journal
    Congress can't just wave away the need for judicial oversight, and that includes signing treaties. Congress does not have the power to wave away judicial oversight, and thus technically is not able to sign such treaties in good faith, even when they wrote them.

    This is one of the things that tends to annoy Europeans, which is that with the way our Constitution is written, they can't merely propose a treaty, slip an anti-capital punishment or gun banning clause in there, and whammo, "educate" us nasty, dirty Americans in the ways of psuedo-civilization. Our Supreme Court can still strike down any attempts to enforce such provisions.

    Note that the EU increasingly depends on the ability to override its member countries, indeed that was a lot of the point, and I think over the next 10 years you'll see the wisdom of not granting Congress, or anybody the power to so trivially override the Constitution.

    (Another lawsuit-waiting-to-happen on a similar topic are those PATRIOT act provisions for the secret courts; Congress doesn't have the power to declare the existence of new courts not under the Supreme Court. Someday they'll annoy somebody powerful enough to sue on that issue and the Supreme Court will wipe out the whole secret court system.)

    • sure they can (Score:4, Interesting)

      by zogger ( 617870 ) on Monday May 19, 2003 @11:18AM (#5991530) Homepage Journal
      they do it all the time, constantly. The speed by which they implement it is up to them. Gun rights? We are under UN disarmament rules right this second, they just choose to do it slowly to avoid revolt. Kennedy signed it, IIRC. I could google for it-the actual obligations- now but need to go to work, late as it is. There's probably someone from CATO or wherever here who recalls the exact details.

      And the supreme court DOESN'T have to take any cases they don't want to,ever, and gunrights cases-and some other political hot potatoes- are always noticeably lacking in their schedule, and have been for years now.

      Now personally I think the over-all "treaty" aspect with the UN is seriously illegal and flawed, but that sure doesn't matter to them, it's in place, up and running, and both major parties support it,which is the MAIN point, and beyond just a small handful of Reps,centered around ron Paul, there's no move to remove us from the UN.

      We're also under several overlapping "states of emergency" which skew and blur the distinctions of "constitutional government" severely.

      It goes all the way back to Lincoln, and tons of other shenanigans, but it's in place, up and running, some serious inertia there. Originally, the main idea was severely limited and delineated powers to the federal government, now it's totally reversed, the federal government ACTS as all-powerful, and gives it's "permission" to the states and local governments and individual people to even have any "rights", just very few people really want to acknowledge that fact in reality, it's too easy to cling to any notions that you have "rights".

      Want easy to see proof? Asset forefeiture with no crime conviction, or even an arrest in a lot of cases. Get caught with many thousands cash on you, it can be seized, you must "prove" it's yours and garnered lawfully, and it's up to any individfual cop to decide on the spot, and you ain't saying boo to them about it, that's easy enough to find many cases of. Random "courtesy checkpoints". Try saying "no you don't,I don't have to stop for you and get searched with no probable cause, I have a 4th...", that's as far as you'll get before you get pepper sprayed in the face in a lot of cases, and if you attempt to drive away they will ram you with their cruiser or shoot you or something. A large standing army. Private bank debt notes being used as legal tender by the government. Lots of examples.
      • The constitutionality of sobriety checkpoints has been affirmed [dot.gov] by the Supreme Court.

        • --oh sure, you can get appointed members of one of the two ruling and cooperating political juntas to "rule" any way you want them to rule. And they can keep adding to the list, sobriety, seat belts, now they are starting to take hair samples -yes, happening- and are training cops right now to take blood samples, right at the checkpoint. Yes, that's happening to, google for it. They can "rule" that is constitutional as well. They can "rule" that warrants are not needed, for any reason, just "suspicion" or a
          • Some people see it, some don't want to see it,not that they can't,but that they *don't want to*, because it makes them uncomfortable and causes that ole cognizant dissonance thang, that's the difference.

            Here's where I disagree. Not only do a lot of them see it (at least subconsciously), many of them demand it. A lot of people I know see that they are taking away our rights, and they will fight to the death to ensure their rights ARE taken away. That is the scary part of all of this. Because we all know
            • {ford subdivision, love it!}

              --anyway,it is pretty funny, isn't it? I get your point, it has great validity. What I have seen though, even from the most ardent regimist, is that they miss the point that no one is exempt from getting the shaft. Everyone gets their turn at en-screwage, and the ones who most fervently supported it before get their socks knocked off when it gets applied to them, they change then, but it takes something drastic and personal to change them. When it's someone else, ho hum, big dea
      • Gun rights? We are under UN disarmament rules right this second, they just choose to do it slowly to avoid revolt. Kennedy signed it, IIRC.

        If they started implementing some sort of UN mandated gun control 40 years ago (when Kennedy was president), I would say it is a testament to the strength of the constitution that not only do I still have a gun at home, but I could legally get several more in a matter of days. At some point, if it is slow enough, slowly implementing these UN disarmament rules becomes n
        • Here it is for you, I googled for it. You may do your own research using this as a guide.

          Public Law 87-297 ["AN ACT to establish a United States Arms Control and Disarmament Agency"] became effective in 1961. The original act was amended in 1983

          That's the one kennedy started.

          It has since been amended quite a bit. The little details are quite... interesting. The main media-public "understanding" of it is related to very large weapons, nukes, etc, you need to get down to the small arms parts, and national

    • Treaties can, however, make an otherwise unconstitutional law constitutional. Take a look a Missouri vs. Holland [umkc.edu]. "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States."

    • As a Brit what totally shocks me is that Americans have virtually elevated to the status of holy scripture a 220-year-old document written largely by a bunch of slave-owning farmers, and don't imagine that it should ever be changed.

      To be fair to the drafters, I don't think they envisaged their constitution as being flawless and unchanging. That's why they ratified the first 12 amendments at the same time as the constitution itself -- to set a precedent.

      I'm not saying the constitution is a bad document. It

  • Singapore, eh? (Score:4, Funny)

    by AtariAmarok ( 451306 ) on Monday May 19, 2003 @10:26AM (#5991257)
    That must explain that provision buried within the DMCA that bans chewing gum, and also the penalties which can include caning.
  • Once again the US is bullying the small countries into following their laws.

    "quietly signed Singapore-US Free trade agreement"

    Doing the dodgy so no one knows. 'Sign it or we will tariff you economy into the ground'

    I guess Oz will be up soon.

    • Oz? ...what next, middle earth? (Score:1, Funny)

      by Anonymous Coward
      "I guess Oz will be up soon."

      Fine with me if the U.S. imposes DMCA restrictions on trade with places like Oz, Neverland, Hogwarts, Grand Fenwick, and Gondor (keeps those pirated Palantir's off the market!)

      Won't do any harm there, keeps it from messing with real countries.

      • Fine with me if the U.S. imposes DMCA restrictions on trade with places like Oz

        I assume that you assume that "Oz" refers only to a fictional place described in the works of L. Frank Baum.

        In the "real" world, Oz is Australia.

  • So what's new (Score:2, Interesting)

    by royalblue_tom ( 557302 )
    IIRC the constitution allows for treaties - article 6:

    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, anything in the Constitution or laws of any State to the contrary notwithstanding.

    In fact, one of the classic tactics used, is if you can't pass it in the US, pass it abroard, and sneak it into a treaty! A lot of countries are looking to relax their "war" on drugs, but canno

    • Re:So what's new (Score:4, Interesting)

      by Dachannien ( 617929 ) on Monday May 19, 2003 @02:36PM (#5993028)
      Not exactly. This provision prohibits individual states from undermining the treaties made by the federal government. It says nothing about the federal courts (and definitely not the Supreme Court) making Constitutional rulings on treaty provisions.

      However, not being familiar with the Constitutions of other nations, I can't comment on the assertion that other nations are plagued with the problem of having treaties undermine their sovereignty.

      • To clarify: Both "the Constitution" and "or laws" apply to "of any State". So neither state laws nor state constitutions have precedence over federal treaties, but the US Constitution does.
      • It doesn't say anything about the states or anyone else undermining it, but w/r/t judicial scope, we have the following:

        Article III, section 2

        The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made ...

      • Not exactly. This provision prohibits individual states from undermining the treaties made by the federal government. It says nothing about the federal courts (and definitely not the Supreme Court) making Constitutional rulings on treaty provisions.

        But that's the whole point. If the Constitution does not give the power to the Supreme Court to declare a law unconstitutional, then it's up to the Legislature to give that power to the Supreme Court. The basis of judicial review is Marbury v. Madison, and t

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