Climate Change Bill Includes IP Protections

moogsynth writes "Buried in section 329 of the Foreign Relations Authorization Act (H.R. 2410), voted in recently, are measures to oppose any global climate change treaty that weakens the IP rights in the green tech of American companies. Peter Zura's patent blog notes that 'the vote comes in anticipation of the upcoming negotiations in December as part of the U.N. Framework Convention on Climate Change. ... Previously, there was sufficient chatter in international circles on compulsory licenses, IP seizures, and the outright abolition of patents on low-carbon technology, that Congress felt it necessary to clarify the US's IP position up front.'"

Comments

I'm so sick of the American Congress

[Anonymous Coward]

Why can't a bill about something be only about something?

"We will bone you hard but we will give you a reach-around..."

Re:I'm so sick of the American Congress

[fuzzyfuzzyfungus]

Unfortunately, that is a messy one. It is easy to suggest(and very likely desireable) that bills not include bundling to sneak things through. However, since it is strategically desirable to do so in many cases, you would actually have to prohibit the practice to keep it from happening. Trying to draft a workable definition of "about something, and only about something" that excludes abuses without excluding legitimate conduct, and doesn't rely on "good faith"(a commodity known to be in short supply near most legislative chambers) is virtually impossible.

In a case like this, it would be trivial to argue that, since technology is almost certainly a component of any viable response to climate change, and since IP is arguably connected with technological development, IP protection is arguably related. If you are subtle enough, you could easily slip in broad enough wording that your climate change bill has ramifications for all kinds of IP, while ostensibly remaining "on topic".

It might be possible, and would certainly be desirable, to curb the worst abuses; but there is essentially no way to attack the (large) grey area.

Re:I'm so sick of the American Congress

[Darkness404]

What really needs to happen is a line-item veto type thing for congress. Where they can choose to support only part of legislation, if that part passes, the bill passes, if that part fails, that part of the bill fails.

Re:I'm so sick of the American Congress

[FiloEleven]

A topical anonymous first post is a rare occurrence.

The American Congress looks out for the political class (i.e. themselves) and for whoever lines their pockets. This is very hard to change.

Congress's preferred method for doing so is to attach unrelated unpopular measures to popular multi-hundred page bills. I don't believe that this clause is such a case, but it happens often enough and there are probably other unsavory tidbits hidden within this bill.

The only way Congress will stop such a practice is if we force them to. To that end, DownsizeDC has drawn up the One Subject at a Time Act. This bill would force Congress to bring every measure to a vote instead of burying them inside some behemoth legislation named "Rekindle The American Dream Act of 2009."

Public pressure works: see for example the 224 co-sponsors (over half the House) of The Federal Reserve Transparency Act of 2009, which you may not have even heard of yet. But the Campaign for Liberty organized a call-in campaign that has been running for a month, maybe a little longer. C4L has around 100,000 members, easily less than a thousandth of the population, and they've already got half the house behind their bill. The phone call is the most effective means of public pressure. OSTA will law by this time next year or sooner if you call your congressmen and get four friends to do the same.

OSTA is a bitter pill for Congress to swallow, yet you'll be hard pressed to find 10 average Americans against its principles. If just a hundredth of those who say "it sounds like a good idea" were to actually call and ask their congressmen to support it, the congressmen would have no choice.

Seriously. Call. Slashdot 'em.

Re:I'm so sick of the American Congress

[realmolo]

The problem with line-item veto, or any kind of system that tries to minimize the practice of "sneaking things into" a bill, is that the party in power (majority party) can simply choose to remove any part of the bill they don't like, or ADD whatever they want to any bill, confident that they will be able to pass it.

Basically, you have to be careful about any kind of legislative system that does to much to increase the power of the majority. The current system makes sure that EVERY bill is a compromise on multiple issues. Yeah, that means that most bills have all kinds of ridiculous things attached that we could probably live without, but it some of those attachments are GOOD, but would never manage to get passed if they weren't part of some larger bill with wide support.

Re:I'm so sick of the American Congress

[icebike]

Except that line item vetoes, as we know them, apply only to appropriations bills, allowing the executive to strike specific expenditures.

No one has proposed a line item veto allowing the editing out of specific words or phrases other than appropriations. ,

The kind of line item you imagine might allow the executive branch to change the meaning of a law which disallowed a specific act/event into one that specifically required that same act/event.

So, be careful what you wish for.

Re:I'm so sick of the American Congress

[demachina]

"see for example the 224 co-sponsors (over half the House) of The Federal Reserve Transparency Act of 2009"

That is a pretty easy bill to garner widespread support. After the last year of shenanigans out of the Fed and Treasury I think just about everyone is realizing fiat currencies are bad, as is letting a hand full of people who don't really answer to anyone control it.

A week or so ago a couple Japanese nationals were caught in Italy trying to smuggle what appear to be $135 billion in U.S. Treasury bearer bonds in to Switzerland, in $500 million and $1 billion denominations. Either Japan was trying to quietly dump their vast T-bill holdings in Switzerland because they don't trust the U.S any more and didn't want to be too conspicuous about it, or there are some other shenanigans going on. If they are genuine Italy may have erased a big bunch of their deficit thanks to a customs checkpoint who found the false bottom in a suitcase.

There are strong suspicions Bernanke and Paulson intentionally froze up the credit markets to coerce $700 billion out of Congress and transfer to Wall Street. The hundred plus billion that went to AIG went in one door and out the other to a number of large firms who desperately needed payoffs on their credit default swaps that AIG couldn't pay. Paulson's old firm Goldman Sachs got billions of dollars with no strings attached from U.S. tax payers through AIG, and chances of AIG paying it back are slim. The firms who had credit default swaps through AIG on their toxic mortgages came out smelling like a rose thanks to the U.S. tax payers and Paulson pulling strings to protect his old firm.

There are also rumors the Fed has been using their printing press to intervene in the stock market at the end of the day to manufacture the unusual rally of recent months. One sure way to break the psychology of a depression is to make the stock market always go up. Unfortunately doing it by printing funny money makes the entire U.S. economy a sham.

Its not even a rumor, its a fact Bernanke has been using the Fed to print money to buy U.S. treasury bills to prop up the massive U.S. government debt and to try to keep treasury and mortgage rates down. That stinks no matter how you look at it, the U.S. fed printing money to bankroll U.S. government debt, and since T-bill rates are spiking lately it doesn't seem to have even worked.

Everyone thinks its a wacko's rant but fiat currencies really are inherently dangerous. They are fine when responsibly managed and there is no stress, but as soon as a crisis develops and irresponsible managers start printing money to get out of it, they can wipe out people's life savings in no time through hyperinflation.

Re:America is full of itself

[thedonger]

Not any more. The climate may have been changing for the last 5 billion years, but the buck stops here! As a nation we officially oppose any changes in the climate. We are one people for one season, indivisible, with liberty and justice for all! Mostly.

Re:America is full of itself

[hedwards]

But, I don't want summer, can't we go back to worrying about nuclear winter?

Re:America is full of itself

[DigiShaman]

America seriously has attitude problems...

Because we would be the nation most punished by the Kyoto. Duh!

America is many things. Being sadomasicistic isn't one of them.

Re:America is full of itself

[thedonger]

I miss those days. Commies were red, beer was cold, and homosexuals were flaming! These days I work with two guys from former eastern block countries, some beer is supposed to be served less-than-ice-cold, and everyone is gay. Where is W.O.P.R. and a game of thermonuclear war when you need it? Hell, the government probably hosts it on EC3...

Re:America is full of itself

[Martin Blank]

Search "Kyoto Protocol" in wikipedia and see what you get, a Map with all countries green except for the US.

That's the "signed and ratified" map, not the map of countries which are going to make their goals. The same article includes a chart showing that a significant portion of the industrialized nations not only failed to reduce their CO2 output from 1992 to 2004, but increased it dramatically. Most of the nations increased their emissions to at least a small degree. Of the nations listed, only Denmark, Germany, and the UK unambiguously reduced their emissions, and Australia and Norway are only included as decreasing when land use and forestry are taken into account.

I would suggest that it's not only the United States that is having problems with the protocol.

It's a token law.

[tjstork]

Pretty much the Congress is covering its rear over what will likely be a huge fight over the economic cost of global warming compliance. Let's be real, it's going to be expensive and its going to mean a dramatic reduction in our standard of living, and so everyone is looking to say they were against it, right up until they vote for it.

Bottom line is, a Treaty is the Law of the Land and it trumps other law. In the pantheon of things, a Treaty ranks just below the Constitution and below that is other law. Shrewd critics, on both sides of the aisle, have long noted that the Treaty is a pretty good way to subvert the Constitution, because it only needs the Senate to approve, not the house, and a treaty carries so much force.

Re:It's a token law.

[MobyDisk]

You should read this month's Scientific American cover story "The Top 10 myths about Sustainability", which discusses why the sustainable approaches do not lower the standard of living.

This is a point that always seemed obvious to me: investing in technology never lowers anyone's standard of living. The only reason it seems otherwise is because the proponents of such arguments ignore things like choking on car exhaust in their standard of living calculations, but make sure to point out that they will have to downgrade to a 43" TV from a 52" to save power. Nevermind the fact that it pays off the long term.

Re:It's a token law.

[tjstork]

You should read this month's Scientific American cover story "The Top 10 myths about Sustainability", which discusses why the sustainable approaches do not lower the standard of living.

Scientific American is wrong and by the end of this summer I'll have an open source computer model that explains why. The problem is increased efficiency demands increased complexity. This complexity implies that that the cost increase of a more efficient system is actually exponential, not linear, such that, going from 10% efficient to 50% efficient is pretty cheap, but it gets way more expensive after that.

This raises the price of the good, which in turn, causes some people to stop buying that product. Because there are less purchasers, while the complexity driven capital cost remains the same, the unit cost goes up. So, more people drop off, and the cost goes further up. Eventually, the good cannot be produced at all.

Right now, you see this in Health Care in the USA. Everyone can blame it on the lawyers or the capitalists but really a lot of it is just sheer complexity of care. Complexity drives the cost up, and a ton of people drop out of the system, driving costs up more for everyone else. For health care, the only way out is rationing of some sort, coupled with mandates to keep everyone in the system, but that doesn't really control costs as much as it does stave off the doom of complexity for a bit longer.

We'll see the same, though, as we exhaust our resources of any kind. You might have more complex systems that can use them more efficiently, but they will get so expensive that what will happen is that the resource will not get used at all. A drop in the standard of living is inevitable.

Re:It's a token law.

[drago177]

So I may be missing something, but it sounds like you're saying that if all the systems only got 50% more efficient, and everyone was forced to join, sustainability is actually possible without destroying demand?

I am a numbers guy, and I haven't seen them, so you may be right - we might have a lower standard of living here in the US. But if we don't curb global warming, I see huge refugee camps forming, where people starve to death and start wars (and the defense dept agrees). So be sure to include those factors in your program: the # of dead parents and starving children. And come to think of it, if New Orleans refugees in Texas were any indication, the US will not be a happy place either, although they'll probably be alive and fed well.

I'm not trying to troll, but its how I feel and can't figure out a less inflammatory way of sayin it. Please try to extract the logic part w/out the emotion :)

Re:It's a token law.

[Max Littlemore]

From my personal experience, a low emissions lifestyle can make for a much higher standard of living than a high emissions one. Good housing design is a good start, using passive solar desing techniques to make comfortable living spaces which don't require as much fuel.

When I was in my teens I lived on the verge of a rainforest with a small generator powered by the creek which fed us and about 10 other houses. We had stereo, TV, lighting and a computer (Amstrad CPC 464 it was), all of those cons, and a beautiful setting to boot. My standard of living was much higher than any I have experienced since.

Often higher efficiency can be achieved with lower complexity and a subtle shift of focus.

Scientific American is wrong and by the end of this summer I'll have an open source computer model that explains why.

Making statements like that silly. Your computer program modelling something within your narrow paradigm will be able prove absolutely that an article in a magazine is wrong? Give me a break.

You can make a model to explain just about any point you are trying to make but unless it takes into account the flies buzzing around the bullshit ~150 kms from where I am sitting, it will never be an accurate representation of reality and to assert that it is is pure arrogance.

Re:It's a token law.

[khallow]

The problem is increased efficiency demands increased complexity. This complexity implies that that the cost increase of a more efficient system is actually exponential, not linear, such that, going from 10% efficient to 50% efficient is pretty cheap, but it gets way more expensive after that.

Let me save you a summer. Your model utterly fails when you apply it to integrated circuits.

Re:It's a token law.

[sumdumass]

This is something that is somewhat contested still. I have read his argument/opinion and don't agree with it. I will go on to explain why later but,

The funny thing here is that congress's power to do anything because of the commerce clause was granted by the supreme court after it already ruled the programs unconstitutional. That's somewhat important because when the Rhenquist Court started showing signs of actually giving the Commerce Clause some meaning, they were actually reverting that movement away from the unconstitutional ways. Now what funny or interesting about this is that a future court could view the subversion of the constitution as a negative and reverse this previous ruling with treaties. So at best, it's possible that given the right treaty, it could be negated within a matter of time.

Of course that would depend on whether the supreme court interpreted the constitution or thought of it as a living document and decided that "freedom of speech" as you mentioned, was only reletive to what society thought at that time.

Now, here is my objections to his ruling and it happens to be most of the controversy surrounding it that others have expressed. Article VI of the constitution says "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;". (it actually says more but this is what we need to work with.

Here is says that all treaties made, and which shall be made, under the authority of the united states. Two problems with the anything goes in treaties argument. First is that both congress and the president are sworn to uphold and protect the constitution. The president is sworn with "will to the best of my ability, preserve, protect and defend the Constitution of the United States." but congress has no leniency (also, congress's oath is not mentioned in the constitution.) So it would seem that either by constitution or congressional rules, that the treaty would have to be in line with the constitution in the first place or they aren't allowed to adopt it. However, when we look at the supremacy clause, it makes a distinction between treaties already made and treaties that will(shall) be made. It says made under the authority of the united states.

To me, and quite a few others, this should mean that the president nor congress have the power to only create treaties within the limits of the constitution because the participants authority is only derived from the constitution which prohibits prohibits certain actions and only allows others. To this extent, It is where I disagree with the Holmes opinion. In it, he says "The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed." he then goes on to talk about the living document in how we can't rely on what the framers meant 100 years ago and need to breath our own experiences into it. I don't buy the living document idea as not only could it be used to expand the powers of congress, it could also be used to allow indefinite detention of terror suspects, warrant-less wire taps or searches, and so on. As soon as we break away from the intentions of the founders, we are more or less making crap up as we go. The constitution allows for changes and it should be the only way it can be changed (as long as the amendment is constitutional).

Anyways, a constitutional court with a strict constitutional interpretation would most likely reverse the idea of a treaty trumping the constitution.

Re:America is full of itself

[malchus842]

When the rules apply equally to all countries, no problem. When China and India get a pass and the US would get economy destroying limits, well, then it's a major problem.

I have news for you - the US is a drop in the bucket compared to China and India.

Kyoto is broken.

Re:geo engineering

[Anonymous Coward]

If your actions don't negatively affect my health and well being in any significant way, you can do anything you want.

As soon as your behavior leaves your realm and affects mine, I'll try to be tolerant, but it gets bad I might need to defend myself.

Live and let live.

Re:America is full of itself

[znerk]

... a Map with all countries green except for the US.

... unless you're not color-blind, and notice the handful that are gray (indicating not only that they have not ratified it, but haven't even signed it). The U.S.A. seems to be the only country that has signed but not ratified it. I won't even go into how well most of the other "large nations" are doing at actually meeting the protocol.

In other words, thanks for the inflammatory comments, now get back under your bridge.

Re:Whats wrong with that?

[SanguineV]

Imagine your (parents') house has a small electrical fire threatening to burn it down. The fire brigade will licence you a fire extinguisher for twice the cost of the house. Your options are:
- a house with a small scorched area and be bankrupted
- live in a burnt out foundation with your savings

Sounds like a great solution to making "green power technology more profitable it's really not that bad is it?"

(Yes I am ignoring insurance etc.)

Re:America is full of itself

[Rakishi]

The US is the single largest carbon emissions producer in the world by a decent margin. China is second and India is far away in fifth place.

On a per capita basis it's even worse as the US produces five times as much co2 as China and sixteen times as much as India.

So no, it's only a drop in the bucket if your intelligence makes our previous president look like nobel prize winner.

Re:America is full of itself

[siddesu]

"Punished"? And I thought it was about "leadership" and "taking responsibility".

Re:America is full of itself

[tpgp]

Because we would be the nation most punished by the Kyoto. Duh!

You're also one of the nations most likely to be punished by climate change (although losing Florida is probably more reward than punishment).

A win for big Oil?

[MrKaos]

Considering that the oil companies own a lot of energy technology patents it's quite possible that this is a bad thing because they still control when that technology will be released and use those patents offensively for any one re-inventing a technology that is actually effective.

Unintentionally, this bill could be consolidating the oil companies control of the energy market because viable technologies are not being allowed to make it to market.

Re:A win for big Oil?

[MrKaos]

I'm probably lost here, but I'm confused why it is bad.

Because the patents that are owned by the oil companies can be used the same way software patents are being used, offensively, to block new innovations (or even old innovations) getting to market.

Fair warning: this post will make you think.

[znerk]

I'm generally against IP, but if this helps make green power technology more profitable it's really not that bad is it?

I'm generally against giving up my personal freedoms, but if getting implanted with a chip that allows me to be tracked accurately to within 3 meters will help stop the terrorists it's really not that bad, is it?

Uhm. Yeah. It is. Pork in your bill is always bad, and the IP laws are screwy enough, kthxbai.

Oh, and another thing... start substituting the word "expensive" when you read "profitable". It makes no sense to me to vote ourselves an automatic 400% increase in price for "green power" technologies, especially if we're excluding any ideas on making "green power" more affordable (read "more available") simply because they come from another country, and/or might step on copyright/patent toes in this country. (Do you really think China gives a rat's ass about violating American laws? Ask NEC about the counterfeit factories (yes, plural; 18, to be precise) they found because someone RMA'd a DVD player that NEC didn't even make. The workers thought it was a legitimate operation, they had NEC's name and logo all over the building and the uniforms, not just the products. Here, have a link.)

(Off-topic rant) My take on IP: 7 years (with a one-time extension of the same duration) was reasonable; 150 years is not. Let the mouse go already, I want my public domain works.

--
Please read and think before you respond or moderate. Thank you.

Re:America is full of itself

[icegreentea]

Yeah. I'm from Canada, and while I'm proud of my country, I wince everytime I read some halfassed newspaper editorial talking about how America has to act and ratify the Kyoto, like ever country ESPECIALLY CANADA *chest thump* has done, while ignoring that we've failed epicly. Suppose to have a 6% reduction, instead we have a 20% increase. Whoops. So now we're moving the goal posts.

Yeah, you guys have to get your act together (and we do too). But frankly, Kyoto at this point is a joke, even ignoring China and the US not signing. Shit sucks.

Democrats are just looking out for the envionment

[Anonymous Coward]

...as long as their big corporate donors are protected.

And then somebody will tell you the Democrats really are different than the Republicans. It would be funny if it wasn't so pathetic.

Re:America is full of itself

[Anonymous Coward]

here is the stats from 5 YEARS AGO
Over two years ago, China over took America. India is number 3 and will pass America in about 2 years. In terms of PER CAPITA, we are also down the list. In 2004, was our highest per capitia, and we were at #10. Since that time, we have gone down slightly, while many other nations have moved up and have surpasses us.
  And comparing China and india to America in terms of PER CAPITA is a joke. It is TOTAL pollution that matters.

The other issue that you forgot is that CURRENTLY China emits more TOTAL POLLUTION (ignoring CO2), then America has COMMULATIVELY. We NEVER allowed it to get anywhere near as bad as China has. Likewise, even india and Russia are major polluters in the world.

To balance this on the west's back is just plain wrong. The west MUST deal with this by encouraging all nations to think long term. To do this, we must impliment a tax on ALL CONSUMED GOODS BASED on CO2 emission and pollution that went into it. IOW, if something is consumed in Ill, and it was made in texas, than the amount of CO2 from its power plant, the trucks to transport it, and even the ingrediants that went into it should figure into it. OR, we can just say that Texas had ex amount of CO2 from there, and then apply a tax on it. Something from france which uses heavy nukes would have less tax due to power. OTH, China has LARGEST TOTAL AMOUNT OF CO2 and by far, the largest amount of pollution and should be hit the highest tax. This will encourage ALL major polluting countries to re-think how they are handling things. Hopefully EU will re-think kyoto which is proving to be WORTHLESS.

Re:America is full of itself

[MaskedSlacker]

No, but I can think of more than a few congressional cretins who would.

Re:America is full of itself

[MaskedSlacker]

No he's arguing that the only thing that matters is total global emissions, and that under the current Kyoto rules, any decrease in the US would be more than offset by the increases from larger outsourcing to China.

Maybe you're confused, but reducing carbon emissions isn't about being FAIR so that everyone gets to do just as much environmental damage as everyone else, it's about reducing carbon emissions.

Re:America is full of itself

[toQDuj]

True, but a bad start is better than not participating at all. At least it shows us (non-US) where you (US) stand. The annoying bit was that the treaty was heavily adapted that even America would join, then passed, and then mr new president decides it is not good for the industry (although Denmark has a thriving industry, thankyouverymuch). Really quite frustrating.

B.