29 March 2010

US - Anti-counterfeiting agreement raises constitutional concerns

(Washinton Post)
by Jack Goldsmith and Lawrence Lessig. The much-criticized cloak of secrecy that has surrounded the Obama administration's negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken. The leaked draft of ACTA belies the U.S. trade representative's assertions that the agreement would not alter U.S. intellectual property law. And it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States. The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law. ACTA could, for example, pressure Internet service providers -- such as Comcast and Verizon -- to kick users offline when they (or their children) have been accused of repeated copyright infringement because of content uploaded to sites such as YouTube. It also might oblige the United States to impose criminal liability on those who "incite" copyright violation. The draft more generally addresses "IP infringement" and thus could extend some of its rules to trademark and possibly patent law in ways that, after inevitable international compromises, will depart from U.S. law. It also contemplates creating an international "oversight council" to supervise (and possibly amend) aspects of the agreement. See also The Anti-Counterfeiting Trade Agreement by Margot Kaminski. See leaked text of ACTA dated 18 January 2010 (PDF) and in text format.