NationStates Jolt Archive

This article (http://www.smh.com.au/news/perspectives/digital-copyright-its-all-wrong/2008/06/09/1212863545123.html) should scare you if you're worried about it coming to pass, or at the very least annoy you if you're not.

A draft treaty proposes draconian measures to protect copyright.

THE forces of reaction are fighting back. As they often do, they are carrying out their planning in secret, in the knowledge that if more people knew of their activities they would not be allowed to get away with it.

The US (surprise, surprise) has circulated a draft "Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement" (ACTA) for the next G8 meeting, in Tokyo in July. The full text of the document has been published on Wikileaks (wikileaks.org).

The ACTA draft is a scary document. If a treaty based on its provisions were adopted, it would enable any border guard, in any treaty country, to check any electronic device for any content that they suspect infringes copyright laws. They need no proof, only suspicion.

They would be able to seize any device - laptop, iPod, DVD recorder, mobile phone, etc - and confiscate it or destroy anything on it, merely on suspicion. On the spot, no lawyers, no right of appeal, no nothing.

The draft contains other draconian measures. It proposes a governing body for copyright protection that would operate outside organisations such as the World Trade Organisation (WTO) and the UN. In short, it proposes a global police force, answerable to no one, with intrusive powers that vastly exceed those currently available to adherents of the concept of intellectual property.

Thoughts?

Thoughts?

That no treaty can go contrary to the constitution, and if US customs officials want to confiscate my property, then as a US citizen you best believe I'll be demanding my due process of law, as gaurenteed by the 5th amendment.

That no treaty can go contrary to the constitution, and if US customs officials want to confiscate my property, then as a US citizen you best believe I'll be demanding my due process of law, as gaurenteed by the 5th amendment.

I had similar thoughts. In my mind's eye I envisioned one of these thugs trying to confiscate my laptop while I waved a US Airport Security agent over to settle things.

What I find distasteful is that it comes from US Congresspeople (who just happened to have received large donations from the recording industry). These are the people we're supposed to be relying on to NOT shit on the Bill of Rights.

I had similar thoughts. In my mind's eye I envisioned one of these thugs trying to confiscate my laptop while I waved a US Airport Security agent over to settle things.

What I find distasteful is that it comes from US Congresspeople (who just happened to have received large donations from the recording industry). These are the people we're supposed to be relying on to NOT shit on the Bill of Rights.

well I learned long ago not to trust media reports when it comes to the fair reporting of legal news, and, having not read the thing myself, I can't comment on what it actually does, only what it can't do.

well I learned long ago not to trust media reports when it comes to the fair reporting of legal news, and, having not read the thing myself, I can't comment on what it actually does, only what it can't do.

I guess it's their hope to bypass the Constitution by establishing this as an organization that's not directly answerable to anyone and would be considered "higher" than our own Government.

Extended running joke?

Extended running joke?

You mean the RIAA? Absolutely.

You know, I think I'd have less hostility toward the RIAA if it weren't for their insistence that somehow their media is "Special." Here's what I mean.

If I go out and by a book, I can give that book to Neo Art if I wanted to, legally. I could loan it to Dyakovo if I wanted to, legally. I could sell it to Nanatsu if I wanted to, legally.

Can I do *any* of that with a song I download from iTunes? Not according to the RIAA.

While I disagree with the whole no-lawyers thing, a nation can check your electronic devices for copywritten material. For example, I would not be allowed to bring my external HDD into Japan because I have several fan-subbed animes. Which is perfectly legal outside of Japan because they are not licensed here. But they are in Japan, and they have every right to confiscate my HDD if I'm stupid enough to bring it.

However, depending on the nation's constitution, most nations probably need some kind of probable cause and due process blah blah.

While I disagree with the whole no-lawyers thing, a nation can check your electronic devices for copywritten material. For example, I would not be allowed to bring my external HDD into Japan because I have several fan-subbed animes. Which is perfectly legal outside of Japan because they are not licensed here. But they are in Japan, and they have every right to confiscate my HDD if I'm stupid enough to bring it.

However, depending on the nation's constitution, most nations probably need some kind of probable cause and due process blah blah.

Is that a bad thing?

And consider this: I have a bunch of mp3s I downloaded legitimately from iTunes. I have a few TV shows too. How do you know the difference between a pirated file and a legally downloaded one? These thugs can't know the difference and yet they'd be empowered to delete all my files on just the suspicion alone.

They need to stop living in the past and realise that the honour system is actually working okay, and there's not much they can do. All they'll achieve is making everyone hate them even more than they already do.

Stupid irrelevant organisations throwing tantrums at lashing out because not as many people want them, need them or care about them.

Is that a bad thing?

And consider this: I have a bunch of mp3s I downloaded legitimately from iTunes. I have a few TV shows too. How do you know the difference between a pirated file and a legally downloaded one? These thugs can't know the difference and yet they'd be empowered to delete all my files on just the suspicion alone.

That's why we need the lawyers and such. I agree that they should be allowed to check (if there is reason to suspect a person), and I agree that if you do have copywritten material illegally that they should have the right to remove it from your possession. But I also agree that there has to be a process to show conclusively that the material is illegally obtained.

This article (http://www.smh.com.au/news/perspectives/digital-copyright-its-all-wrong/2008/06/09/1212863545123.html) should scare you if you're worried about it coming to pass, or at the very least annoy you if you're not.



Thoughts?
I wonder how much money this cost the MPAA.


I wonder how much more money the MPAA/RIAA would have if they wern't spending thousands, or millions of dollars, on inane and/or draconian anti-piracy measures worldwide.

OK and here's why I don't trust regular media to discuss law. The problem is, law means things, it has legal terms, which might sometimes mean different things than normal.

For instance, the treaty allows governments to seize things suspected of being used to violate intellectual property. That seem sinister, but it's not really. If I go through customs and they open my suitcase and see bags of white powder, have they PROVEN it's cocain? No. Are they going to take it? Yes.

Because articulable suspicion is sufficient. It doesn't mean that customs agents can seize every Ipod and laptop that comes their way, and it doesn't claim that it does. Likewise it doesn't say destroy materials SUSPECTED of infringing on IPR, but rather "IPR infringing goods", IE those that are not merely suspected, but proven. And again, once they prove that it's cocain, what are they going to do? Destroy it.

No difference. Law enforcement agents have ALWAYS been able to seize those things they suspect, with articulable suspicion, are being used in furtherance of a crime and, once that fact is proven, to destroy them.

This treaty does not allow, and at no point claims to allow, destruction of private goods merely suspected of being involved in IPR violations

That's why we need the lawyers and such. I agree that they should be allowed to check (if there is reason to suspect a person), and I agree that if you do have copywritten material illegally that they should have the right to remove it from your possession.

Why should we have a standard higher for IPR violations than we do every other crime? Do we require the police to PROVE it's cocain before removing it from your posession? No, largely because to prove that it's cocain they need to test it, which requires removing it from your posession.

Probable cause based on articulable suspicion has always been sufficient. They don't need to PROVE it's cocain in order to remove it from your posession, they need reasonable suspicion as to its illegality.

But I also agree that there has to be a process to show conclusively that the material is illegally obtained.

Of course, and nothing in this treaty proports to override such a process.

These thugs can't know the difference and yet they'd be empowered to delete all my files on just the suspicion alone.

Here (http://file.sunshinepress.org:54445/acta-proposal-2007.pdf) is the text of the treaty. Show me where such empowerment lies. Because the ONLY time the word "suspicion" or a varient thereof appears in the entire text is this line:

authority for customs authorities to suspend import, export, and trans-shipment of suspected IPR infringing goods

That's the only time anything dealing with the term "suspicion" shows up. It means they can stop good from entering, leaving, or crossing through the country if they have suspicion those goods are used to violate IPR. Well ya know what, they can stop, from entering, leaving, or crossing through the country goods they suspect to be cocain too. It's no different.

As for destruction, you are perhaps thinking of this section:

measures to ensure the seizure and destruction of IPR infringing goods

Notice the conspicuous absence of the word "suspected"

You mean like how they can now seize your laptop at the airport?

http://travelsecurity.blogspot.com/2007/05/airport-security-can-confiscate-your.html

A court ruled that it was unconstitutional, but the government is appealing the case.

Given the current people on the Supreme Court, I know which way this will go.

Am I the only one that thinks it's funny that the treaty-writers are blaming pirates for the loss of innovation and creativity in the movie and music industries?

Also "threatening consumer health and safety" *laughs*

Given the current people on the Supreme Court, I know which way this will go.

Yeah, down in flames. The conservative element of the court is not a fan of expanding the known limits of constitutional power, but they're pretty big on enforcing those limitations already agreed upon to exist.

And the 5th amendment is a pretty obvious thing there. The fact that it's a conservative court is somewhat helpful in that regard, as judges like Scalia and Roberts, while they dislike taking a more "living constitution view" tend to dislike it when the government violates the clear wording of the document.

I was under the impression that UK and US customs officials were already checking digital storage (http://www.guardian.co.uk/technology/2008/may/15/computing.security) devices when they felt like it. This just doesn't smell new.

Yeah, down in flames. The conservative element of the court is not a fan of expanding the known limits of constitutional power, but they're pretty big on enforcing those limitations already agreed upon to exist.

And the 5th amendment is a pretty obvious thing there. The fact that it's a conservative court is somewhat helpful in that regard, as judges like Scalia and Roberts, while they dislike taking a more "living constitution view" tend to dislike it when the government violates the clear wording of the document.

I was thinking more along the lines of the court telling the administration to ask for a new law, written in such a way as to make merely the security concerns of the airport and the fact that someone is a traveller INTO the US (i.e., a non-citizen), probable cause for search.

I was thinking more along the lines of the court telling the administration to ask for a new law, written in such a way as to make merely the security concerns of the airport and the fact that someone is a traveller INTO the US (i.e., a non-citizen), probable cause for search.

It's a good thing our constitution says "person" not "citizen" then huh? What's wrong DK, got bored pretending to be a lawyer?

It's a good thing our constitution says "person" not "citizen" then huh? What's wrong DK, got bored pretending to be a lawyer?

The Supreme Court didn't have a problem telling them to rewrite the laws governing surveillance, so that it doesn't really apply to people who aren't in the US.

Are you going to say that people talking on the phone to someone in the US have the right not to be listened in on?

They don't.

The Supreme Court didn't have a problem telling them to rewrite the laws governing surveillance, so that it doesn't really apply to people who aren't in the US.

Are you going to say that people talking on the phone to someone in the US have the right not to be listened in on?

They don't.

Irrelevant. It's not about the individual.

Correct me if I'm mistaken, Neo Art, but wouldn't this have more to do with the fact that the call is originating/connecting outside the US than with the person placing the call?

That no treaty can go contrary to the constitution, and if US customs officials want to confiscate my property, then as a US citizen you best believe I'll be demanding my due process of law, as gaurenteed by the 5th amendment.

Line up behind me. Those custom officials stole my bag of pot! With no compensation whatsoever!

Just password protect your laptop with a ridiculously long password before coming into the country, and encrypt your hard drive. Just because they can confiscate it doesn't mean you have to help them break into it.

Even better...

Just have this (http://www.thecleverest.com/countdown.swf) on your screen when they take it.

The waterboarding would totally be worth the look on the security guy's face.

Just password protect your laptop with a ridiculously long password before coming into the country, and encrypt your hard drive. Just because they can confiscate it doesn't mean you have to help them break into it.

Bad idea if you ever want to get your laptop back. The only way to travel to the US with a business laptop is to just have an operating system and some kind of remote access on it.

That no treaty can go contrary to the constitution, and if US customs officials want to confiscate my property, then as a US citizen you best believe I'll be demanding my due process of law, as gaurenteed by the 5th amendment.

Are you aware that treaties have the same legal significance as the United States Constitution? Scary stuff.

Are you aware that treaties have the same legal significance as the United States Constitution? Scary stuff.

What exactly od you mean by "same legal significance"? A treaty, if properly authorized, is law, it just can't supercede the constitution.

Is that a bad thing?

And consider this: I have a bunch of mp3s I downloaded legitimately from iTunes. I have a few TV shows too. How do you know the difference between a pirated file and a legally downloaded one? These thugs can't know the difference and yet they'd be empowered to delete all my files on just the suspicion alone.

Almost all mp3s from iTunes have DRM. The ones that don't have other markers, I believe. So yeah, it's easy as hell to tell the difference.

OK let me explain a little bit how treaties work, and how congressional power works. We all know that Congress can not enact laws that violate the rights of citizens. But in addition, congressional power is limited, they can only pass laws pursuant to Constitutional authority. In other words, they can only regulate those things that the Constitution says they can regulate, including: the collection and levying of taxes, the power to declare war, the regulation of interstate commerce, passing statutes to enforce the 14th amendment, and others.

So if Congress today passed a law that says “all cars manufactured in the United States must have a highway mileage of at least 30 miles per gallon of gasoline.” It was challenged and the Supreme Court found that Congress did not have the authority to pass this law, it went beyond the powers they have (ignoring what I think would be a very good commerce clause argument, but let’s just ignore that fact for now).

But instead of doing that, let’s say the US passed a treaty with Japan that said “the United States and Japan agree that all cars manufactured in the United States and Japan must have a highway mileage of at least 30 miles per gallon of gasoline.” The Supreme Court would likely uphold this.

”but” you exclaim “Neo Art, didn’t you JUST say Congress can’t do that?” Yes I did. Here’s how it works. SCOTUS has consistently held that along with explicit enumerated powers, Congress has implict powers as well. What powers are those? Powers that, in our traditional view of nations, Congress would be expected to have. For instance, our national flag is designed by federal statute. Nowhere in the constitution does it say congress can design a flag, but they have. Why? Because things like flags, anthems, pledges, national symbols, are the types of things that nations have, and we expect our national, federal government to be able to do those things that nations do.

And one of those things is engaging in international diplomacy. And engaging in international diplomacy requires nations to be able to create concessions and make agreements with other nations. So along with specifically enumerated powers, congress has the implied power to engage in international diplomacy and make agreements with foreign powers that are legally binding on the United States to pass legislation and regulation, even if they would not otherwise be able to under their specifically enumerated powers. The reason being, SCOTUS has held that if we force Congress to only ratify treaties that bind the United States to agreements that Congress could have otherwise passed on their own without a treaty, the limiting construction of the Constitution would severely hamper our ability to engage in international diplomacy, because it would only allow Congress to make consessions based on their limited powers, and that might be harmful to the United States if we are so hampered in our international diplomatic efforts.

So in other words, it is permissible for Congress to ratify a treaty regulating mileage per gallon, even though they have no explicit power under the constitution to regulate such a thing, because it is done pursuant to their implied power to engage in international diplomacy. HOWEVER there is a limiting factor. Congress CAN NOT, even by treaty, agree to restrict the rights of citizens. This was decided in Reid v. Covert, 354 U.S. 1 (1957). At heart in this case was a treaty between the United States and Great Britain. This treaty permitted US military tribunals to try American servicemen, or their families, for crimes committed in Great Britain. What happened was, the wife of a US soldier was charged with committing murder in Great Britain, where the husband soldier was stationed. She was charged by military tribunal, pursuant to the treat. The Supreme Court said no, can’t do this. She is a civilian, and US citizen. And ALL US citizens, if brought under the power of the American criminal courts, have a right to a trial by jury of their peers. Therefore no treaty, even if properly ratified, could allow the US government to try a US citizen in criminal proceedings without granting that citizen the right to a jury trial.

So that’s basically it. Congress can ratify treaties that create agreements by force of law, even if Congress could not otherwise pass such a law pursuant to any explicit constitutional power, but it CAN NOT pass a treaty that would violate the rights of citizens.

Just password protect your laptop with a ridiculously long password before coming into the country, and encrypt your hard drive. Just because they can confiscate it doesn't mean you have to help them break into it.

If you don't give them the passwords, keys, etc., they'll charge you with obstruction of justice on top of any other charges.

Then they'll break in anyway, and see what they want to see.