[A2k] Obama Administration rules texts of new IPR agreement are
statesecrets
Paul Lehto
lehto.paul@gmail.com
Mon Mar 16 14:03:00 2009
A couple of quick thoughts, pardon me if they're old hat since I'm
fairly new to this list:
(1) Patents are the "new form of currency in the knowledge-based
economy." The identity of corporate benefactors is likely part of
what they want to hide.
(2) It may be a stalling strategy for later disclosure at a point when
it is all claimed or actually a fait accompli.
(3) Part of the negotiation intent involves modifications of legal
superstructures for IP law, so if they're going to "turn the
kaleidoscope" of IP law in some way and rearrange it, there will be
inadequate time to understand the implications of how all the IP chips
of the kaleidoscope rearrange themselves and get the word out
(presuming a late disclosure here), much less assemble the best
coalitions of affected and interested parties that might otherwise be
assembled.
(4) I'd write back to them, or consider doing so, and state that the
objection is not well taken, reassert production is demanded under the
same request, and in the alternative have them specifically state what
classification was assigned this material, by whom and on what date,
and what specific reasons were given for the classification as
required to meet the terms of Executive Order 12958.
(5) By way of Introduction, I'm a former business law and consumer
fraud attorney who spent my last few years of practice in election law
from 2004-2007 (a form of consumer protection law in a way). In that
time I sued to invalidate government contracts that purported to
create trade secret property interests in the very vote counts of our
democracy itself, including claims by corporate vendores to own the
electronic images of the paper ballots, or the electronic ballot data
(if a touchscreen). I was successful in removing one corporation's
touch screens from my former home county by attacking the contract
that purported to cfreate the ownership of the heart of democracy.
Think of it this way: There's selling out your country, then there's
paying vendors millions to take the very heart of democracy (the vote
counts) as their own private property upon which we are literally, as
with any property interest, considered the functional equivalent of
trespassers.
Even a congressional election contest I was lead counsel in located in
the state of California was noted by international election monitors
as of significance for democracy, but there in order to avoid my
discovery of the vote counts, they swore in the Rep only 7 days after
the election with 68.500 uncounted votes in a close race on the FIRST
count and thereafter claimed that exclusive jurisdiction had
transferred to the House of Reps in DC, thus making CA courts
powerless to look into their own elections or order a recount. The
direct implication of the Congressman's position is that every legal
act including the rest of the vote counting and the certification of
the election was void because the swearing in vested an 'exclusive
jurisdiction" in the House of representatives to declare and "judge"
its own members under Art. I secs. 4&5 of the US Const. It's almost
needless to say that this construction makes it unnecessary to even
HAVE an election at all, given that they assert the power to terminate
one by a premature swearing in and then decide their own membership
for themselves in WA DC.
Perhaps I'm too young on this particular list to say so, but I suspect
that with corporate-owned secret vote counts on optical scans or
touchscreens being the norm, and a Congress with an approval rating
between 10 and 20% nevertheless manages re-election rates well over
90%, that not all of this is due to gerrymandering necessarily. It's
certainly child's play, and I've had computer experts demonstrate
this, to change the vote counts in undetectable ways.
THe fact, in any case, that the property rights (IP trade secret
rights) that are claimed for the heart of democracy have twice in
nonprecedential trial court rulings been held to trump the truth
seeking process of the courts and the public interest in determining
the truth of a congressional election ought to bring to mind FDR's
definition of fascism: when private power exceeds public power. That
test seems to be met in these Congressional election contests, since
even routine car accident personal injury cases routinely get access
to trade secrets of automakers for example, though usually on
condition of signing an nondisclosure agrement. But not even being
able to look at the data at all is extraordinary since this is
directly at the focal point of freedom and democracy: without the
ability to kick the bums out, so to speak, at will, we are, put
simply NOT A FREE PEOPLE. Free peoples can change their politicians
at will and without question, especially when the incumbents are
corrupt, but the computerized ownership of the vote counts places us
in an especially helpless position as against corrupt incumbent
officials with any influence on election officials or access to a
single machine for ten minutes or less anytime in the year or two
prior to a given election...
Here again the problems of secrecy rear their ugly heads. Under such
conditions we are forced to theorize about missing information, and
risk being called "conspiracy theorists" but my answer always is:
Give us the damn information and there won't be any possibility of any
kind of theory at all, much less a conspiracy theory. (All theories
are educated hypotheses about missing information, but there's no
reason for the vote counts to be AWOL)
I have co-authored a chapter in an anthology with Robert F Kennedy Jr.
on Bush v. Gore and related issues, write encyclopedia articles on
law, especially election law and theorists of democracy, and have done
extensive research on the law of trade secrecy as applied to the
government in case anyone wants to compare notes. I've also drafted a
resolution called RollCall4Democracy that organizations with over 3
million collective members have approved (no opposition so far) that
is both very anti-secrecy and very anti-corporate IP, but the way I've
framed it is very successful in getting folks to adopt this position.
I've backed it up further with a Zogby poll in August 2006y showing
that 92% of Americans assert it is their right to observe vote counts
and obtain any information about vote counts.
The truth on the ground could hardly be further from virtually very
american can identify as their right even on a cold call from Zogby!
We live in interesting times.
If anyone's interested in taking a look at the resolution against
secret vote counting and corporate IP ownership of US elections,
please contact me and I'd be happy to send a copy on. In addition,
though I'm not wanting to be pushy about it, if any group or person
would like the join groups as diverse as the CA NAACP, unions,
Republicans, Mountain State Green Party, Libertarians, and the Latino
Congreso in endorsing the core principles of democracy, I'm happy to
sign up anybody interested if any one is in a position to endorse a
nonpartisan and yet powerful resolution indicting corporate IP
excesses.
Perhaps, if you're not all aware of this already, showing that the IP
cancer of nontransparency has spread all the way through the very
heart and brains of democracy will help you all emphasize the
seriousness of your IP issues. As many of you probably already know
"trade secrets" are especially egregious because they are not
disclosed at any time to the PTO or Copyright office, not even in
theory. Boiled down, they're nothing more than information, broadly
defined, that a corporation makes reasonable attempts to keep secret.
An element of "competitive advantage" is also there but always met
because corporations don't do anything except what they believe is in
their competitive advantage. THus, by a mere act of will and perhaps
contract and some efforts to retain secrecy, corporations can, at
will, create IP interests out of any compilation of information, and
have it protected on pain of state law punitive damages and attorneys
fees under the Uniform Trade Secrets Act.
I quit being an attorney after a weeklong stint in the hospital after
the 2006 congressional litigations nearly killed me, but now I work
absolutely as much as I can on IP/secrecy issues, especially when they
intersect with "public" (sic) elections, but I see the commonality of
issues here with many other A2K concerns.
Paul Lehto, J.D.
On 3/13/09, Jeffrey A. Williams <jwkckid1@ix.netcom.com> wrote:
> Paul and all,
>
> There is IMO no doubt that Jamie won allot here. Seems
> that the Europeans are also wanting/demanding transparency
> and accountability directed specifically or in particularly to
> ACTA documents as well.
> See:
> http://arstechnica.com/tech-policy/news/2009/03/european-parliament-to-eu-turn-over-acta-docs.ars
>
> also see:
> http://yro.slashdot.org/comments.pl?sid=09/03/13/1446206
>
> I don't believe the argument that the FOIA request was denied
> on legitimate grounds that the US would without a doubt significantly
> damaged as a result. In fact I believe it is much more likely that
> in the current national atmosphere the US government and especially
> the Obama Administration, will be at least somewhat damaged if the
> FOIA request is not fully complied with. As such, perhaps Jamie should
> resubmit it in a few days.
>
> Paul Lehto wrote:
>
>> Maybe you won something in this FOIA denial, specifically the ability
>> to make the following statement: "There's no significant doubt that
>> if these negotiation drafts were released, the position of the US
>> would be significantly damaged, since indeed that is only way that
>> Executive Order 129258 can be invoked: when damage to a US position
>> would occur from its disclosure. In a treaty about business law and
>> intellectual property law, what are they hiding?"
>>
>> Here's the details:
>>
>> Normally, in civil as opposed to criminal ("taking the 5th") contexts,
>> the failure to produce information where one would normally be able to
>> properly draw every inference against the party hiding the
>> information. This is the general doctrine of "spoliation" of
>> evidence, and in the civil, unlike the criminal, context, silence is
>> "probative" meaning that silence can be argued to prove one's
>> culpability. (e.g. taking the 5th in Bankruptcy court, a civil court,
>> will result in an order to compel and/or a dismissal of one's
>> bankruptcy)
>>
>> This inference is hardwired as fact in this case because they've
>> invoked Executive Order 12958. I'd consider this FOIA denial an
>> admission of the truth of your position --namely that disclosure of
>> these negotiating documents would damage the US position -- at least
>> until such time as the detailed documents are produced, for the
>> following specific legal reasons:
>>
>> 1. The damage that this FOIA would cause to the US position must be
>> taken as a fact, unless Executive Order 12958 was invoked in bad
>> faith, in which case the FOIA should have been granted. EXECUTIVE
>> ORDER 12958 states at
>>
>> Sec. 1.2. Classification Standards. (a) Information may be originally
>> classified under the terms of this order only if all of the following
>> conditions are met:
>>
>> [...] (4) the original classification authority determines that the
>> unauthorized *disclosure* of the information reasonably could be
>> expected to *result in damage* to the national security and the
>> original classification authority is able to *identify or describe the
>> damage.*
>> http://www.fas.org/sgp/clinton/eo12958.html
>>
>> 2. Moreover, under Sec. 1.2 (b) there's "no significant doubt" that
>> this damage to the US position would occur.
>>
>> Sec. 1.2(b) states that "If there is significant doubt about the need
>> to classify information, it shall not be classified."
>>
>> 3. Under normal contract law, a signed contract (if there is one
>> here) destroys all prior drafts and preliminary or even signed
>> agreements under what's called the parol evidence rule, or the
>> doctrine of "merger" -- unless the new agreement specifically
>> incorporates or provides for the survival of some past draft or
>> agreement. This "merger" into the document is purposed to keep the
>> meaning of contracts as certain as possible, reducing all negotiations
>> to the black and white on paper in the final draft only, and
>> minimizing the need for evidence outside the contract. (If language is
>> ambiguous, resort may be had to extrinsic evidence outside the
>> contract). The fact that these negotiation drafts are legally
>> inoperative to control the final signed copy weakens any claim that
>> there is a national security interest here that goes beyond mere
>> embarrassment, which, in the absence of more, is the classic example
>> of where transparency is most needed.
>>
>> 4. Under this executive order, there must be a classification of Top
>> Secret, Secret or Confidential, and there must be specific reasons for
>> it. I'd think, though I'm not 100% sure, that these classifications
>> and reasons should have been provided in the FOIA denial, but were not
>> provided.
>>
>> Regards,
>> Paul Lehto
>> Juris Doctor
>>
>> On 3/11/09, Jeffrey A. Williams <jwkckid1@ix.netcom.com> wrote:
>> > Jamie and all,
>> >
>> > I for one fully agree. There is no good reason to keep the IPR
>> > agreement secret, especially sense it's potential precepts will almost
>> > certainly have an effect on the general public. It transparency and
>> > accountability is a significant ethic of the Obama administration, we
>> > should all have access to the IPR and all documents in regard to
>> > ACTA.
>> >
>> > James Love wrote:
>> >
>> >> http://www.huffingtonpost.com/james-love/obama-administration-rule_b_174450.html
>> >>
>> >> Obama Administration rules texts of new IPR agreement are state secrets
>> >> James Love
>> >>
>> >> We have been seeking access to documents relating to negotiations on an
>> >> important new intellectual property enforcement treaty. The agreement,
>> >> misleadingly named the Anti-Counterfeiting Trade Agreement, or ACTA, is
>> >> thought to cover a wide range of intellectual property enforcement
>> >> issues -- including standards for granting injunctions for alleged
>> >> infringement of patents or copyrights, damages, seizures of goods in
>> >> transit, surveillance of Internet digital file transfers, searches of
>> >> personal property, and a dozen other topics.
>> >>
>> >> There are number of outstanding Freedom of Information Act (FOIA)
>> >> requests for key documents, by groups like EFF, Public Knowledge, and
>> >> KEI. In one of our FOIA requests, we asked for 7 specific documents,
>> >> referenced by the exact title and date of the documents. These
>> >> documents
>> >> are the proposals for the text of the agreement.
>> >>
>> >> The texts are available to the Japanese government. They are available
>> >> to the 27 member states of the European Union. They are available to
>> >> the
>> >> governments of Canada, Mexico, New Zealand, Australia. They are
>> >> available to Morocco, and many other countries. They are available to
>> >> "cleared" advisers (mostly well connected lobbyists) for the
>> >> pharmaceutical, software, entertainment and publishing industries. But
>> >> they are a secret from you, the public.
>> >>
>> >> Today we received this letter from the White House, Office of the
>> >> United
>> >> States Trade Representative. Our FOIA request was denied on the grounds
>> >> that the documents are "information that is properly classified in the
>> >> interest of national security pursuant to Executive Order 12958."
>> >>
>> >> Here is a link to a PDF of the denial of the FOIA request.
>> >>
>> >> http://www.keionline.org/misc-docs/3/ustr_foia_denial.pdf
>> >>
>> >> The original FOIA request is here:
>> >> ----------------
>> >>
>> >> January 31, 2009
>> >>
>> >> Dear Stan McCoy
>> >>
>> >> As U.S. co-chair of the TACD working group on intellectual
>> >> property,
>> >> and the Director of Knowledge Ecology International, I request, under
>> >> FOIA, electronic copies of the following documents. I believe these
>> >> documents are being widely circulated to corporate lobbyists in Europe,
>> >> Japan and the U.S. There is no reason for them to be secret from the
>> >> American public.
>> >>
>> >> James Love, Director, KEI
>> >>
>> >> 1. JAPAN - U.S. JOINT PROPOSAL
>> >> Anti-Counterfeiting Trade Agreement
>> >> Discussion Draft: October 16, 2008
>> >>
>> >> 2. JAPAN - U.S. JOINT PROPOSAL
>> >> Anti-Counterfeiting Trade Agreement
>> >> May 20, 2008, and the EU proposals for modifications of the Japan
>> >> U.S. proposal, dated 7 July 2008
>> >>
>> >> 3. Anti-Counterfeiting Trade Agreement, EU proposal: September 23,
>> >> 2008
>> >>
>> >> 4. Anti-Counterfeiting Trade Agreement (ACTA)
>> >> Non-Paper on institutional issues under the Agreement. June 9, 2008
>> >>
>> >> 5. Anti-Counterfeiting Trade Agreement (ACTA), summary of comments
>> >> on Border Measures
>> >>
>> >> 6. JAPAN - U.S. JOINT PROPOSAL
>> >> Anti-Counterfeiting Trade Agreement
>> >> Discussion Draft July 23, 2008
>> >> Comments added September 26, 2008
>> >>
>> >> 7. Anti-Counterfeiting Trade Agreement
>> >> [Definitions]
>> >> Discussion Draft: May 8, 2008
>> >>
>> >> --
>> >> James Love, Director, Knowledge Ecology International
>> >> http://www.keionline.org | mailto:james.love at keionline.org
>> >> Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile
>> >> +41.76.413.6584
>> >>
>> >> _______________________________________________
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>> >
>> > Regards,
>> >
>> > Spokesman for INEGroup LLA. - (Over 284k members/stakeholders strong!)
>> > "Obedience of the law is the greatest freedom" -
>> > Abraham Lincoln
>> > "YES WE CAN!" Barack ( Berry ) Obama
>> >
>> > "Credit should go with the performance of duty and not with what is
>> > very often the accident of glory" - Theodore Roosevelt
>> >
>> > "If the probability be called P; the injury, L; and the burden, B;
>> > liability depends upon whether B is less than L multiplied by
>> > P: i.e., whether B is less than PL."
>> > United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
>> > ===============================================================
>> > Updated 1/26/04
>> > CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
>> > div. of Information Network Eng. INEG. INC.
>> > ABA member in good standing member ID 01257402 E-Mail
>> > jwkckid1@ix.netcom.com
>> > My Phone: 214-244-4827
>> >
>> > _______________________________________________
>> > A2k mailing list
>> > A2k@lists.essential.org
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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
>
> Regards,
>
> Spokesman for INEGroup LLA. - (Over 284k members/stakeholders strong!)
> "Obedience of the law is the greatest freedom" -
> Abraham Lincoln
> "YES WE CAN!" Barack ( Berry ) Obama
>
> "Credit should go with the performance of duty and not with what is
> very often the accident of glory" - Theodore Roosevelt
>
> "If the probability be called P; the injury, L; and the burden, B;
> liability depends upon whether B is less than L multiplied by
> P: i.e., whether B is less than PL."
> United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
> ===============================================================
> Updated 1/26/04
> CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
> div. of Information Network Eng. INEG. INC.
> ABA member in good standing member ID 01257402 E-Mail
> jwkckid1@ix.netcom.com
> My Phone: 214-244-4827
>
>
--
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-2333
309-413-6541 fax