New IP Treaty Looming?

An anonymous reader writes "According to an article by James Boyle in the Financial Times, the United States is helping push a Treaty that would create an entirely new type of intellectual property right in the US, in addition to copyright, covering anything that is broadcast or webcast. (Regardless of whether the work was in the public domain, Creative Commons Licensed etc, the broadcaster would control any copies made from the broadcast for 50 years.) Boyle argues that this is dumb, unconstitutional, and anyway should be debated domestically first."

Comments

Come on...

[bombadillo]

Boyle argues that this is dumb, unconstitutional, and anyway should be debated domestically first."

Having debates on U.S. Policy is sooo pre-2001. Try again in January 2009...

Our country...

[grasshoppa]

Our country is run by lawyers. No where is this more obvious than when seeing the lawmaking process. Greased palms, closed door deals.

I have a solution, however. The problem is there are too many lawyers. They have no natural predator, as it were. I propose,then, a lawyer hunting season. Say, from Sept to March. Trophies are based on bank account size.

Of course, mounting your kill is perfectly acceptable.

So who's the broadcaster?

[Short Circuit]

The guy who owns the server, the guy who paid for an account on the server, or the ISP the server colos at or is connected to?

Stupid

[neonprimetime]

What if only Fox or CBS has the footage of a particular public event? Do we let the broadcaster eviscerate the ideas of fair use, prohibiting other networks from showing fragments so as to comment on the events, or criticise the original coverage? The proposed treaty text allows for fair use-like exceptions but does not require them. Once again, we harmonise upward property rights for powerful commercial entities, but leave to individual states the discretion whether and how to frame of the equally crucial public interest exceptions to those rights. Increased property rights for broadcasters are required. The public interest in education, access, and free speech is optional. (Among other things, most of the recent drafts would outlaw home recording of TV and radio unless a special exception was put into the law, state by state.)

Well written article. This sounds like a poor idea ... that will more than likely pass simply because of the big company backing ... of course it would be almost impossible to enforce at the individual level ... nobody has the resources to check such things as recording tv or radio programs on your home pc, tape deck, etc.

You're missing the whole point...

[dubmun]

It is our policy to push our ideas on as many nations as possible.

It helps distract from the fact that the people of our country have no say of their own...

Re:You're missing the whole point...

[$RANDOMLUSER]

Are you referring to our short-sighted government, our greedy corporate overlords, or our apathetic fellow citizens?

Here's the scam

[HaeMaker]

The theory is that both copyright and treaty-making are in the constitution. The RIAA and the MPAA are whispering in the ears of congress, "If you pass a law giving us new rights, it can be constitutionally challenged and we lose, but if you make it part of a treaty, then we can contend that overturning the new treaty is just as unconstitutional as granting us a new right. We can contend that the Supreme Court does not have the power to overturn a treaty."

Ka-ching!

Re:Here's the scam

[Kadin2048]

No, that's not accurate at all. Treaties entered into by the United States Congress on behalf of the United States have the full force of law behind them. In fact at various points in our history there has been contention as to whether they are above or below the Constitution in terms of weight (personally I find the assertion that any treaty can possibly come before the Constitution to be a both ridiculous and dangerous).

Here's the short, short version. The Constitution discusses treaties in its "supremacy clause,"

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; 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, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

Now, this seems pretty clear to me that the order of precedence is Constitution->Laws->Treaties, but for some reason, others have disagreed.

The problems all got started in 1918 with Missouri v. Holland, where the Congress, seeking to regulate bird hunting (which it doesn't have a clear way in the Constitution to do -- this was before the courts expanded Interstate Commerce to include everything you could possibly imagine), entered into a treaty with the U.K. to regulate bird hunting. Basically, this eventually went up to the USSC, which declared that treaties entered into by the USA overpower States' rights under the 10th Amendment.

This, in time, started to make people rather nervous, since it meant that the executive and legislative branches of government could basically do anything they wanted, if they could enter into a treaty that required it. There were some unsuccessful attempts at revising the Constitution to prevent this, and make it clear that treaties weren't the supreme law of the land, but were rather limited by the Constitution itself: this was the failed Bricker Amendment. I happen to think this would have been a very good idea, and it's a shame it didn't go through.

The establishment of the current situation came with Reid v. Covert, where the USSC overturned the conviction of a civilian military dependent by a court martial, saying that a treaty doesn't overpower the Constitution in capital cases. (Why they limited it to capital cases, I have no idea, and one of the justices basically asks this in the opinion.) But basically it was seen as a clarification that you can't have treaties that blatantly violate the Constitution. (It also has interesting bearing on the current situation vis a vis Gitmo detainees and the WoT, but that's another story.)

There may have been more cases since then, but that's as far as I've read them. Basically, treaties right now have some effect which is greater than conventional Federal laws (or at least not bound by the traditional powers of Congress, apparently), but less than the Constitution. So it would still be possible, were the Court so inclined, for them to strike down a very bad WIPO treaty on Constitutional grounds. Whether you think the USSC would actually do that, in its current state and incarnation...well, I'll leave that for another comment.

Simple answer:

[schon]

The guy who owns the server, the guy who paid for an account on the server, or the ISP the server colos at or is connected to?

The one with the most money to spend on lawyers.

In related news, FedEx & UPS push for an IP ac

[MasterC]

In related news, FedEx & UPS join forces to get the FedUPS Act of 2006 passed that would give transportation companies intellectual claim to every copyrighted material they transport.

Seriously, why should FedEx or UPS lay claim on a book they transport? Why is a (TV) broadcaster any more special because they transmit a signal? Cuz they put there little logo in the bottom right? Or because they do all kinds of fancy pop-outs that advertise other shows?

Neither FedEx nor a broadcaster do anything original, why do they get protection from Big Brother?

Re:Unconstitutional?

[$RANDOMLUSER]

> Since the Constitution is the law of the land...

You misspelled "greed".

Re:Unconstitutional?

[Vancorps]

The constitution doesn't give us rights, its restricts what government can do. This is something that's been lost on most people for some reason. By default we're allowed to do whatever we want. The constiution merely says the government can do this to stop you because your freedom is interfering with the freedom of another citizen. That is the judge of whether something is constitutional or not.

Granted, I have not done an in-depth study of the constitution either, that was just how I was taught about it in school.

Of course, just because something isn't constitution doesn't mean it won't happen anyways.

Getting more alternatives

[jd]

It's tough to get more alternatives when the bar to entry is so impractically high as to essentially form a protected duopoly. Even Britain, where the bar is much lower, is struggling to form a third party with any significant influence. The Liberal Democrats - even when both Conservatives and Labour are discredited - actually LOST seats in the recent(ish) local byelections.

I have no idea how you could have a genuinely open, fair, multi-party system. It would presumably need to borrow some ideas from proportional representation, as that seems to be the only method of reliably getting multiple parties into politics. Italy, however, shows the risks of the opposite extreme - having too many parties. There, the former Prime Minister is actively working to bring down the current Government in an effort to pull off a coup and seize power. There very nearly wasn't a current Government, as he'd refused to step down even after losing the election.

My best guess at this time would be for the top two or three candidates to represent the constituancy in direct proportion to the percent of vote they received. So, a person getting 50% of the vote would have 50% of the voting block. This avoids the whole problem of what to do in a tie, as you'd simply have more than one person with the same voting strength.

I also think that the system needs a third, unelected house, where members are selected from the jury pool and who can place bills on trial, as per any other trial. The idea would be to have a group of anonymous people that lobbyists could not identify to corrupt, and who would retain any influence for such a short time that power itself could not corrupt them.

What I do not know is how you could implement either of these ideas within the framework of the US Constitution, or how they could be adapted to fit within the expectations of having a clear line of responsibility, or how they could be debugged on the basis of how political systems actually work in practice.

I guess that information, if anyone did have it, would be covered by this new IP treaty and could not, therefore, be divulged except at a great price.