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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.)
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.