[A2k] Geist: Battle over ACTA heats up

[Paul Lehto]

P.S.
The text below, authored by me, is Copyright 2009 by Paul R. Lehto,
All Rights Reserved. Should ACTA be enACTAd, willful or nonwillful
possession by any government or ACTA-loving corporate official without
my prior express written consent is a crime punishable by prison
sentence, and otherwise to the full extent of the law.  Of course,
prior to that enACTAment, public servants should read messages similar
to that below both every morning upon arising, and in the form of a
prayer immediately prior to retiring. Consent is hereby granted to
freely substitute paragraph 2 of the Declaration of Independence in
lieu of the text below.


On 4/8/09, Paul Lehto <lehto.paul@gmail.com> wrote:
> (Regardless of any recent selective/partial release of information by
> the USTR subsequent to the Canadian journalism starting this thread,
> the following reply post still applies in full:  partial transparency
> is like having half of the windows in one's car blacked out, the other
> half allowing some view.  Feel safe?)
>
> ---------
> The subintelligitur of ACTA controversy (the unstated premise),
> specifically as reflected in the journalism below, is that the various
> nations involved in this ACTA negotiation have duties to each other
> (of secrecy or non-transparency) that transcend either partially or
> totally their duties to their own people.
>
> In other words, their unstated operating assumption is that they deem
> themselves free to combine, ad hoc, and make promises of secrecy or
> non-transparency to each other, and thereby render themselves helpless
> to do anything to extricate themselves from these without the consent
> of the other parties to the conspiracy (I mean TREATY)  negotiations.
>
> In this light, it=92s amusing indeed to hear of Canadian officials with
> consciences strong enough to spot the issue and even fret about it,
> perhaps even wring their hands in moral dilemma, yet nevertheless they
> still presume or clearly appear to presume that without the consent of
> these other countries (which they never had the express authority to
> enter into secret negotiations with) they are helpless to extricate
> themselves from this binding, secret negotiation process.  Except
> maybe with a leak here or there, or a partial transparency of some
> sort....
>
> Think of this general rule:
> The non-transparent entity, to the extent of the non-transparency, is
> the master/boss/ruling entity.  (e.g. to the extent we enjoy any
> personal privacy, we are the =93masters=94 of our own =93castles=94; and =
to
> the extent the government is non-transparent, it is unaccountable to
> the public and master of its own affairs without check or balance.)
>
> Conversely, the transparent entity is always the servant/slave entity.
>  E.g. the employee can not legitimately hide information about the
> company from the boss or owners of the company...
>
> Perhaps the great extent to which our privacy has been destroyed in
> favor of =93transparency=94 of individuals in the name of fighting
> terrorism and other rationales, juxtaposed against the culture of
> secrecy that has exploded in government ought to be duly recognized as
> a tectonic shift in the relationship between governors and the
> governed.
>
> =93We the People=94 aim "to be our own governors" as John Adams put it,
> and those who are supposed to be our public servants, holding our
> power only by delegation and in representative fashion, now shun that
> term in favor of being called Public Officials or better yet,
> =93Authorities.=94
>
> We can not know all the details of the ACTA treaty negotiations, we=92re
> necessarily forced to speculate. But we can know with certainty the
> MANNER in which We the People are being treated.
>
> Standard law school or trial advice is to frame objections so that
> they occur when error is clear and harm to my interests is certain.
> Therefore, I object to ACTA=92s secrecy, because it bespeaks a form of
> governance that you can call whatever you like, as long as you don=92t
> call it a republic, a democracy, or a commonwealth.
>
> Paul R. Lehto, J.D.
>
> On 4/1/09, Sean Flynn <sflynn@wcl.american.edu> wrote:
>> This is a multi-part message in MIME format.
>> --
>> [ Picked text/plain from multipart/alternative ]
>> http://www.ottawacitizen.com/news/Battle+over+secret+treaty+heats/144636
>> 7/story.html
>>
>> The Ottawa Citizen
>>
>> March 31, 2009
>>
>>
>>
>> Battle over top-secret treaty heats up
>>
>>
>>
>> By Michael Geist
>>
>>
>>
>> Next week, the Department of Foreign Affairs will conduct one of the
>> stranger consultations in recent memory.  Officials have invited roughly
>> 70 stakeholder groups to discuss an international intellectual property
>> treaty that the U.S. regards as a national security secret and about
>> which the only substantive information has come from a series of
>> unofficial leaks.
>>
>>
>> Since then-minister David Emerson announced Canada's participation in
>> the Anti-Counterfeiting Trade Agreement negotiations in October 2007,
>> the ACTA has been dogged by controversy over the near-total lack of
>> transparency.
>>
>> Early negotiations were held in secret locations with each participating
>> country (Canada, the U.S., the European Union, Japan, and Australia
>> among them) offering nearly identical cryptic press releases that did
>> little more than fuel public concern.
>>
>> The participating countries conducted four major negotiation sessions in
>> 2008 and though the first session of 2009 was postponed at the request
>> of the U.S. (which was busy transitioning to a new president), the
>> negotiations are set to resume later this spring.
>>
>> When they do, negotiators will face two key challenges.
>>
>> The first involves the mounting disagreement over transparency and the
>> value of releasing the current draft text to assuage public mistrust.
>>
>>
>> According to documents recently obtained under the Access to Information
>> Act, Canadian officials favour a transparent approach that would lead to
>> an early release of the draft text.
>>
>> Marie-Lucie Morin, then the deputy minister of International Trade (and
>> now national security adviser to Prime Minister Stephen Harper), warned
>> International Trade Minister Stockwell Day in November that "should
>> there be no consensus among the ACTA partners to make the ACTA text
>> public, the Department will need to develop options to address Canadian
>> stakeholders' concerns about the lack of transparency in the ACTA
>> process."
>>
>> Further, a department spokesperson has confirmed that plans to establish
>> an ACTA advisory group comprised of a few lobby organizations -- which
>> was the initial intent in the summer of 2008 -- have not gone forward.
>>
>> Canada is not alone in supporting an open approach.
>>
>> Earlier this month, the European Parliament passed a resolution calling
>> for the public availability of all ACTA materials.
>>
>> Moreover, while the U.S. government has denied requests for access to
>> ACTA documents on national security grounds, reports indicate that it is
>> currently reviewing its approach.
>>
>> Assuming that the documents are ultimately released to the public,
>> negotiators will then face an even tougher challenge: Addressing
>> concerns over the substance of the treaty.
>>
>> While little has been officially confirmed, there has been a steady
>> stream of leaks in recent weeks that paint a picture of the treaty and
>> Canada's role in it.
>>
>> The proposed treaty has six main chapters: (1) Initial Provisions and
>> Definitions; (2) Enforcement of Intellectual Property Rights; (3)
>> International Cooperation; (4) Enforcement Practices; (5) Institutional
>> Arrangements; and (6) Final Provisions. In addition to drafting two
>> "non-papers" that focus on institutional ACTA issues and procedural
>> matters, Canada supplied the draft text for the Institutional
>> Arrangements chapter at the most recent ACTA meeting in Paris in
>> December.
>>
>> Most of the discussion to date has centred on the Enforcement of
>> Intellectual Property Rights chapter, which is divided into four
>> sections -- civil enforcement, border measures, criminal enforcement,
>> and the Internet. The first three sections were addressed in meetings
>> last year.
>>
>> Although there is still considerable disagreement on the final text,
>> leaked documents indicate that the draft includes increased damage
>> awards, mandated information disclosure that could conflict with
>> national privacy laws, as well as the right to block or detain goods at
>> the border for up to one year.
>>
>> Moreover, the criminal provisions go well beyond clear cases of
>> commercial infringement by including criminal sanctions such as
>> potential imprisonment for "significant willful copyright and trademark
>> infringement even where there is no direct or indirect motivation of
>> financial gain."
>>
>> Jail time for non-commercial infringement will generate considerable
>> opposition, but it is the Internet provisions that are likely to prove
>> to be the most controversial. At the December meeting, the U.S.
>> submitted a "non-paper" that discussed Internet copyright provisions,
>> liability for Internet service providers, and legal protection for
>> digital locks.
>>
>> The paper raised questions about damage awards, liability for hosting or
>> storing content, and the extent to which national digital lock
>> provisions mirror the U.S. approach.
>>
>> This indicates that the United States is feeling out its negotiating
>> partners on the potential for an international version of its
>> much-criticized Digital Millennium Copyright Act.
>>
>> The upcoming consultation demonstrates that Canadian officials are
>> working to address the transparency concerns. If the leaked documents
>> are accurate, however, public support for the treaty will require far
>> more than just greater openness.
>>
>> Michael Geist holds the Canada Research Chair in Internet and E-
>> commerce Law at the University of Ottawa, Faculty of Law. E-mail:
>> mgeist@uottawa.ca
>>
>> (c) Copyright (c) The Ottawa Citizen
>>
>>
>>
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>
>
> --
> Paul R Lehto, J.D.
> P.O. Box #1
> Ishpeming, MI  49849
> lehto.paul@gmail.com
> 906-204-2333
> 309-413-6541 fax
>


--
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul@gmail.com
906-204-2333
309-413-6541 fax