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Getting DMCA Locked In Through The Backdoor
pugugly writes "Findlaw's Writ has an interesting editorial (By a student) on the quietly signed Singapore-U.S. Free trade agreement, set for fast-track approval (Limited debate, no amendments). It has a clause in it requiring the signatories abide by DMCA provisions. Among other things, this could theoretically this would remove that annoying judicial oversight from the picture."
The article is a little thin on actual textual references, so I spent a few minutes actually reading the treaty. Iâ(TM)m not a lawyer, but Iâ(TM)m fairly well educated in legal theory.
I would first point out that a treaty with Singapore does not greatly restrict the United States. Should the Congress change its mind, this treaty would not create a substantial barrier to reform legislation. Its purpose is to prevent the manufacture and design of circumvention technologies in Singapore to protect U.S. copyright holders. It seems unlikely that Singapore worries much about Americans pirating their movies and music.
The section of the treaty mentioned is the copyrights section.
There are indeed comprehensive rules in the treaty very similar to that of the DMCA. It requires the prohibition of circumvention devices, defined as
- marketed for circumvention
- donâ(TM)t do much else
- are primarily designed for circumvention
It has exceptions for legal reverse engineering to achieve interoperation, academic security research, filtering content to protect minors and private investigations to determine security problems. It also seems to exclude public entities, nonprofits and libraries who might access data for archival purposes.Thereâ(TM)s also an amusing section on patents which suggests that non-obvious is synonymous with inventive step; useful is synonymous with capable of industrial application.
It also prohibits the retransmission of TV and broadcast streams (on the Internet).
Congress can't just wave away the need for judicial oversight, and that includes signing treaties. Congress does not have the power to wave away judicial oversight, and thus technically is not able to sign such treaties in good faith, even when they wrote them.
This is one of the things that tends to annoy Europeans, which is that with the way our Constitution is written, they can't merely propose a treaty, slip an anti-capital punishment or gun banning clause in there, and whammo, "educate" us nasty, dirty Americans in the ways of psuedo-civilization. Our Supreme Court can still strike down any attempts to enforce such provisions.
Note that the EU increasingly depends on the ability to override its member countries, indeed that was a lot of the point, and I think over the next 10 years you'll see the wisdom of not granting Congress, or anybody the power to so trivially override the Constitution.
(Another lawsuit-waiting-to-happen on a similar topic are those PATRIOT act provisions for the secret courts; Congress doesn't have the power to declare the existence of new courts not under the Supreme Court. Someday they'll annoy somebody powerful enough to sue on that issue and the Supreme Court will wipe out the whole secret court system.)