Law Profs Take Action Against ACTA

The Anti-Counterfeiting Trade Agreement (“ACTA”) has long troubled electronic privacy advocates both substantively and because of its secretive negotiating process. After numerous leaks, an official draft was released on April 21, 2010 after the European Commission voted 633 to 13 to mandate public access to ACTA drafts. University of Ottawa law professor Michael Geist (a signatory to the letter) catalogues ACTA’s provisions on his blawg, while ArsTechnica provides a more practical look at ACTA’s consequences for consumers. This new letter, signed by over 70 law professors and other academics, argues that ACTA is harmful to American citizens and that its status as a “sole executive agreement” is unconstitutional.

Harvard Law School professors Jack Goldsmith and Lawrence Lessig (also a signatory to this latest letter against ACTA), wrote an op-ed in the Washington Post in March, 2010 criticizing ACTA negotiations. In their op-ed, Professors Goldsmith and Lessig focused on the ratification procedure, arguing that the Obama administration has exceeded its Constitutional authority by designating ACTA a sole executive agreement instead a treaty. The difference, of course, is that a treaty requires ratification by two-thirds of the Senate while a sole executive agreement requires nothing more than the President’s signature.

The letter lays out three major complaints with ACTA. First, the professors argue that the secrecy surrounding ACTA’s negotiation undercuts the Obama administration’s “promises of openness and secrecy.” Reports suggest that groups like the International Intellectually Property Alliance, a kind of meta-lobbying group, whose membership includes the RIAA and MPAA, and corporate stakeholders, had a hand in the initial drafting of ACTA.

Second, the professors pick up where professors Goldsmith and Lessig left off and argue that designating ACTA a sole executive agreement is unconstitutional:

Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA’s provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions. Other sections lock in substantive law that may not be well-adapted to the present context, much less the future. And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate. The agreement is also likely to affect courts’ interpretation of U.S. law.

Third, the professors argue that the name ACTA is itself misleading because the true focus of the agreement is not anti-counterfeiting, but instead systemic changes in American (and world) intellectual property law.

The remedies the professors seek are not new in the ACTA debate, but perhaps coming from such a chorus of academics they will give the Obama administration pause for thought. Many of these remedies (on-the-record public hearings, renouncement of sole-executive-agreement status, new language in ACTA reflecting the viewpoints of IGOs and other non-corporate stakeholders) have been suggested before with little action by the US. Unfortunately, it seems that if change comes to ACTA, it is more likely to come from the European Union than it is from the United States.

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