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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.)
That must explain that provision buried within the DMCA that bans chewing gum, and also the penalties which can include caning.
Don't blame Durga. I voted for Centauri.
they do it all the time, constantly. The speed by which they implement it is up to them. Gun rights? We are under UN disarmament rules right this second, they just choose to do it slowly to avoid revolt. Kennedy signed it, IIRC. I could google for it-the actual obligations- now but need to go to work, late as it is. There's probably someone from CATO or wherever here who recalls the exact details.
And the supreme court DOESN'T have to take any cases they don't want to,ever, and gunrights cases-and some other political hot potatoes- are always noticeably lacking in their schedule, and have been for years now.
Now personally I think the over-all "treaty" aspect with the UN is seriously illegal and flawed, but that sure doesn't matter to them, it's in place, up and running, and both major parties support it,which is the MAIN point, and beyond just a small handful of Reps,centered around ron Paul, there's no move to remove us from the UN.
We're also under several overlapping "states of emergency" which skew and blur the distinctions of "constitutional government" severely.
It goes all the way back to Lincoln, and tons of other shenanigans, but it's in place, up and running, some serious inertia there. Originally, the main idea was severely limited and delineated powers to the federal government, now it's totally reversed, the federal government ACTS as all-powerful, and gives it's "permission" to the states and local governments and individual people to even have any "rights", just very few people really want to acknowledge that fact in reality, it's too easy to cling to any notions that you have "rights".
Want easy to see proof? Asset forefeiture with no crime conviction, or even an arrest in a lot of cases. Get caught with many thousands cash on you, it can be seized, you must "prove" it's yours and garnered lawfully, and it's up to any individfual cop to decide on the spot, and you ain't saying boo to them about it, that's easy enough to find many cases of. Random "courtesy checkpoints". Try saying "no you don't,I don't have to stop for you and get searched with no probable cause, I have a 4th...", that's as far as you'll get before you get pepper sprayed in the face in a lot of cases, and if you attempt to drive away they will ram you with their cruiser or shoot you or something. A large standing army. Private bank debt notes being used as legal tender by the government. Lots of examples.
IIRC the constitution allows for treaties - article 6:
and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
In fact, one of the classic tactics used, is if you can't pass it in the US, pass it abroard, and sneak it into a treaty! A lot of countries are looking to relax their "war" on drugs, but cannot, as they are tied in to Hague and Geneva drug conventions passed back in 1912/1925.
--just as an intellectual exercise, for your information, this is what it's called "assymetrical warfare". In unnamed country-x, with overwhelming weapons and logistics, etc superiority over their own oppressed people or some nation they have invaded, it's still easy (relatively speaking if war is ever easy) to "fight" against this or that. There's whole libraries of books about it and all the nations teach it as well. Here's a total random example, their jet fighters. Your side identifies the bars and whoehouses the swaggering fighter jocks hang out at, you blow that bar one night. At the same time you use your "puny" weapons to take a small unit with some mortars perhaps, you nail the jets on the field with the mortars. They (the bad guys in this example, the oppressors or occupiers) up the ante, retaliate, mass hangings and shootings and torture, so the guerrillas take out the oppressors families or local areas with poison in the water or food, etc. They ship in more troops, you blow the bridges as they cross, or nail the fuel supply way in the rear. It's really just how far do you want to take it. Armies need at least (these are generic figures spoken by people other than me, professionals at it) a 10 to 1 numerical superiority to be successful occupiers if the civilian population doesn't want them there and engages in guerrila warfare against them, that and they need to be ruthless, and it's a never ending spiral if they go that route. Witness israel and the palestinians right now, if mere ownership of the superior tech was "enough", there wouldn't be any fighting there. They will have to engage in complete and total genocide to be "victorious" and even then it's still a crap shoot until the last opposing human is dead.
I would not negate the effectiveness of millions of people who are working inside the infrastructure, who have access to small arms and tools, and who would have cross overs who would decide working for the regime is a bad idea. Not saying it would be easy, but impossible? No, it's quite possible. I don't care how much high tech you got, millions of snipers (deer hunters) alone would be a formidable force. It's one thing to have enough bombs to drop to smash a few small cities in a small nation over in whoknowswhereistan,but talking about thousands of cities over millions of square miles? It doesn't exist,you couldn't build enough conventionals, especially if you had to use slave labor and guard all the thousands of roads and rail lines that are necessary to *build* the stuff, to transport all the pieces, to supply the food and fuel and water, and nuking your own nation is sort of counter productive, it wouldn't happen.
The US fights external wars, the last time we had an internal was the civl war, it was pretty nasty. Neither side had all that much tech compared to what is available now. And the only reason we are winning foreign wars is we fight relatively weak nations, with very much older technology. If you notice, we never went into serbia on the ground. the reason is, it would not have been easy, even with total aircap. We are still losing guys weekly in ashcanistan, and will contiue to do so as long as we have guys there. I imagine it will start up again in iraq as well.
Most of the tech we have faced even with "higher"level tech, has been warsaw pact weaponry, and none of the top of the line stuff has been exported from russia, they only ship grade B or C level weaponry for the most part. And by some accounts, even their grade B anti armor man portable rockets were starting to "work" against abrams,and the reason why the war ended so soon is because the top level iraqi generals got bribed off, and they quit fighting. They (US spooks) flew them out, no idea where they are now.
No, people having a born with right to self defense and to be armed is a good idea, and for exactly the possibility of a junta takeover of the government.
They interviewed some japanese general from world war 2 once, they asked him why japan never really made any serious invasion moves, paraphrased his reply was "there is a man with a rifle behind every blade of grass in america".
I would not like to be part of any occuping force if the bulk of the US armed population got annoyed with them. No I wouldn't.