The Anti-Counterfeiting Trade Agreement (“ACTA”) is similar to the whack-a-mole counterfeiters it purports to fight; it just keeps randomly popping up everywhere.
Two years ago, under what some describe as a cloak of secrecy, the Obama Administration partook in the construction of ACTA with a handful of other countries behind closed doors. Over several meetings on several continents, ACTA, as it now stands emerged. Along the way, it picked up more supporting countries and set a minimum standard of rules in the fight against counterfeit goods. Countries that signed ACTA agreed to be bound to these minimum standards and to enforce them via their judicial, police and border patrols.
This was very troubling to many legal professors for various reasons. First of all, the Obama Administration campaigned upon a promise of transparency in government- a somewhat dig at the Bush Administration who many felt were not at all forthcoming with the American public regarding their dealings behind closed doors. Arguably, this promise of transparency was one of the main reasons Obama was elected. Guantanamo Bay, WMDs and the Wars in Iraq and Afghanistan were all fresh in the American memory. Many felt the Bush Administration had duped them into believing / supporting certain presidential policies and reasoning without being provided with the full set of facts first.
ACTA, while originally a Japanese idea, quickly drew the support of the US Trade Office of Ron Kirk, an Obama appointee and an office under the Executive Branch. Over time, the Obama Administration sent delegates around the world for the various meetings held to draw up ACTA as an international agreement without giving much notice to the American people what was going on. (For more information on this process, please read "A Case Against the ACTA" ) Long story short, ACTA was signed by the Obama Administration and essentially became a treaty that they US was internationally bound to enforce via executive order. By doing this, a group of distinguished law professors, claimed that ACTA served to bypass the Legislative Branch, something necessary in order for an international treaty to be binding on the US. Thus, ACTA, as it stands now, is arguably unconstitutional according to the group.
Today on formidable fashion law blog Law of Fashion, a letter signed by the law professors was posted. In the six-page open letter to the members of the US Senate Committee on Finance, the group argues:
As previously mentioned, I worked with Prof. Kenneth Port, William Mitchell College of Law professor, as a research assistant for on his paper against the ACTA. Prof. Port, was one of the distinguished law professors who signed this letter. I say that ACTA keeps appearing like the whack-a-mole counterfeiters because this is not the first time Prof. Port or any of the other professors listed on the letter have attempted to contact the Obama Administration regarding their ACTA concerns. As InfoJustice.org points out:
While Prof. Port and I were, and still are, at odds regarding the goals, helpfulness and policies behind ACTA, I do admit, the professors make a very strong point in their letter. In my desperate attempts to bring Prof. Port to the “dark side” of fashion law protection, I did have to research this aspect of the ACTA formation and how it ties into the constitutional powers our country relies on. While I do not think ACTA is necessarily a 100% absolute legislative decision only- many executive orders are made by presidents and they can be struck down at any time by sitting or future presidents- I must agree that the lack of transparency in this matter is troubling. Not in so much that I think ACTA is corrupt but rather, I would like to see greater IP protections afforded to designers without the stigma of things being done under cloak and dagger. It makes the public more suspicious, especially when juggernaut retailers like LVMH stand to profit greatly from such policies and they are in essence given the power to hold public governments responsible for supporting private business property rights.
I encourage readers to form their own opinions and share their own thoughts in the comments section.
Below is the letter sent today by the law professors to the Senate Finance Committee:
Dear Members of the United States Senate Committee on Finance:
We write as legal academics with expertise in Constitutional, international, and intellectual property law to encourage you to exercise your Constitutional responsibility to ensure that the Anti- Counterfeiting Trade Agreement (ACTA) is submitted to the Senate for approval as an Article II treaty, or to the Congress as an ex post Congressional-Executive Agreement. It is our studied opinion that the administration has failed to identify ex ante authorization of ACTA by Congress, and that these are thus the only Constitutional bases for U.S. entry into ACTA. It is clear that other ACTA negotiating parties – including the EU, Australia, Mexico, and others—are treating ACTA as a binding international agreement requiring legislative ratification under constitutional standards similar to our own. We encourage you to demand the same element of public process in our own country.
ACTA’s subjects – including intellectual property and foreign trade – are matters delegated to Congressional power under Article I of the Constitution. The larger part of ACTA contains dozens of pages of new international law requirements on the shape and scope of domestic intellectual property enforcement legislation, including what types of infringement must be addressed through criminal law, when third party intermediaries may be civilly and criminally liable for infringement by others, and the scope of damages and other remedies that must be available for different classes of infringement. Regardless of whether ACTA requires changes in U.S. law (many claim that it does), these are matters subject to the legislative power vested in the Congress, not in the sole executive province of the President.
The Constitution dictates that the U.S. can bind itself to international agreements within Congress’s Article I powers through one of three mechanisms:
An agreement may be ratified through the Treaty Clause, requiring approval by a two-thirds vote of the Senate;
Congress, through a law passed by both houses of Congress and signed by the President, can grant the Executive power to craft and enter the agreement through an ex ante authorization (the end product of which is referred to as an ex ante Congressional-Executive Agreement); Congress can approve the agreement ex post, by passing an Executive-negotiated agreement, subject to amendment, through both houses of Congress and signed into law by the President (the end product of which is referred to as an ex post Congressional-Executive Agreement).
Initially, the Executive maintained a position that ACTA could be entered as a Sole-Executive Agreement in letters from United States Trade Representative Kirk to Senator Wyden and in public statements. The latest communication on this issue, from Department of State Legal Advisor Harold Koh to Senator Wyden, abandoned the Sole-Executive Agreement justification for ACTA and instead described the agreement as an ex ante Congressional-Executive Agreement. ACTA was authorized, the letter claims, by Section 8113(a)(6) of the 2008 PRO-IP Act.
This argument fails on closer inspection.
May 16, 2012
First, the plain language of Section 8113(a) of the PRO-IP Act1 does not authorize USTR to bind the U.S. to any international agreement. Rather, the section merely describes the purposes of a “Joint Strategic Plan against counterfeiting and infringement,” to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). The purposes of the Plan include “working with other countries to establish international standards and policies for the enforcement of intellectual property rights.” Nowhere in Section 8113 does the PRO-IP Act mention the negotiation of international agreements. Rather, subsection (f), which describes specific means for “enhancing enforcement efforts of foreign governments,” requires only “programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement.”2 Read in its context, the language cited by Koh as justifying ACTA does no more than require a multi-agency plan to provide technical assistance to foreign governments. Indeed, the cited passage is not addressed to USTR.
Second, the PRO-IP Act cannot be an ex ante authorization for ACTA because it was not temporally ex ante. The ACTA negotiation began in 2007. PRO-IP was not passed until 2008, and was passed at a time Congress was being told that ACTA would be entered as a Sole-Executive Agreement – requiring no Congressional approval at all. The administration did not seek, and Congress has not
1 Sec. 8113 is part of a larger Subchapter providing for “Coordination and Strategic Planning of Federal Effort Against Counterfeiting and Infringement.” The subchapter creates, in Section 8111, the office of the Intellectual Property Enforcement Coordinator and mandates that the Office “coordinate the development of the Joint Strategic Plan against counterfeiting and infringement” by an advisory committee of federal agencies. Section 8113 describes the purpose and content of the strategic plan. Section 8113(a) states, in relevant part:
The objectives of the Joint Strategic Plan against counterfeiting and infringement that is referred to in section
8111(b)(1)(B) of this title (in this section referred to as the "joint strategic plan") are the following: .. .
(6) Working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.
(7) Protecting intellectual property rights overseas by –
(A) working with other countries and exchanging information with appropriate law enforcement agencies in other countries relating to individuals and entities involved in the financing, production, trafficking, or sale of counterfeit and infringing goods;
(B) ensuring that the information referred to in subparagraph (A) is provided to appropriate United States law enforcement agencies in order to assist, as warranted, enforcement activities in cooperation with appropriate law enforcement agencies in other countries;
2 (f) Enhancing enforcement efforts of foreign governments
The joint strategic plan shall include programs to provide training and technical assistance to foreign governments for
the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement. With respect to such programs, the joint strategic plan shall -
(1) seek to enhance the efficiency and consistency with which Federal resources are expended, and seek to minimize duplication, overlap, or inconsistency of efforts;
(2) identify and give priority to those countries where programs of training and technical assistance can be carried out most effectively and with the greatest benefit to reducing counterfeit and infringing products in the United States market, to protecting the intellectual property rights of United States persons and their licensees, and to protecting the interests of United States persons otherwise harmed by violations of intellectual property rights in those countries;
(3) in identifying the priorities under paragraph (2), be guided by the list of countries identified by the United States Trade Representative under section 2242(a) of title 19; and
(4) develop metrics to measure the effectiveness of the Federal Government's efforts to improve the laws and enforcement practices of foreign governments against counterfeiting and infringement.
We thus conclude that the Administration currently lacks a means to Constitutionally enter ACTA without ex postCongressional approval. The present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers. If Congress allows the Executive to claim that ACTA was authorized by language that clearly does not authorize the agreement, it will be ceding unprecedented power to the Executive.
Remedying this state of affairs is uniquely within Congress’s province. Congress, and specifically the Senate, as the Constitutionally recognized chamber with responsibilities for the approval of treaties, should secure from the Administration a public pledge to send ACTA to the Senate as a treaty, or to the Congress as an ex postCongressional-Executive Agreement. Absent a pledge to this effect, we encourage the Committee to hold hearings and to pass legislation that would prevent the United States from binding itself to ACTA without express Congressional consent.
For further information, questions or correspondence, please contact Sean Flynn at email@example.com or Margot Kaminski at firstname.lastname@example.org.
Margot Kaminski Yale Law School
American University Washington College of Law
David S. Levine
Elon University School of Law
Christopher Jon Sprigman Virginia Law
Northeastern University Law School
Kevin Outterson Boston University
Frank A. Pasquale Seton Hall Law School
Ira Steven Nathenson
St. Thomas University School of Law
University of California Irvine Law
Pam Samuelson Berkeley Law
Yale Law School
George Washington University
David G. Post Temple University
Kenneth L. Port
William Mitchell College of Law
American University Washington College of Law
Oklahoma City University School of Law
Rebecca Tushnet Georgetown Law
Marquette University Law School
Suffolk University Law School
University of Maine School of Law
University of Wisconsin Law School
Jason Shultz Berkeley Law
Florida International University
Wayne State University Law School
George Mason University Law School
Cynthia M. Ho
Loyola University Chicago School of Law
Drake University School of Law
University of Idaho and Princeton University
Robert A. Heverly
Albany Law School of Union University
Mark P. McKenna
Notre Dame Law School
Lea Bishop Shaver
Maurice A. Deane School of Law, Hofstra University
Howard C. Anawalt
Santa Clara University Law School
University of North Carolina School of Law
Paul Edward Geller
General Editor, International Copyright Law and Practice
Lawrence Lessig Harvard Law School
Santa Clara University School of Law
Connie Davis Powell Baylor School of Law
Margo A. Bagley
University of Virginia School of Law
Llew J Gibbons
University of Toledo College of Law
North Carolina Central University School of Law
William S. Boyd School of Law University of Nevada, Las Vegas
Deirdre K. Mulligan
UC Berkeley Center for Law & Technology
David R. Johnson New York Law School
Elizabeth Townsend Gard Tulane University Law School
Tyler T. Ochoa
Santa Clara University School of Law
Timothy K. Armstrong
University of Cincinnati College of Law
Seattle University School of Law
Eric E. Johnson
University of North Dakota School of Law
Hiram A. Meléndez-Juarbe
University of Puerto Rico Law School
University of Oklahoma College of Law
Ron Kirk, U.S. Trade Representative
Jonathan McHale, Office of U.S. Trade Representative Harold Koh, Department of State
Alec Ross, Department of State
Chris Painter, Department of State
Bob Hormats, Department of State
Danny Weitzner, White House
Todd Park, White House
Tom Power, White House
Victoria Espinel, White House