Law Professors Ask for Public Input on ACTA
Law Professors Ask for Public Input on ACTA
Law Professors Ask for Public Input on ACTA

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    Seventy Five law professors including, Prof. Yochai Benkler, Prof. Susan Crawford, Prof. Lawrence Lessig, and Prof. Pamela Samuelson, have written a letter to the President expressing their concerns with the Anti-Counterfeiting Trade Agreement (ACTA) and calling upon the administration to seek public input and Congresssional approval for the agreement.

    Here is a copy of the letter:

    October 28, 2010
    President Barack Obama?1600 Pennsylvania Avenue NW?Washington, DC 20500
    Dear President Obama,
    As academics dedicated to promoting robust public debate on the laws and public policies affecting the Internet, intellectual property, global innovation policy and the worldwide trade in knowledge goods and services, we write to express our grave concern that your Administration is negotiating a far-reaching international intellectual property agreement behind a shroud of secrecy, with little opportunity for public input, and with active participation by special interests who stand to gain from restrictive new international rules that may harm the public interest.
    Your Administration promised to change the way Washington works.  You promised to bring increased truthfulness and transparency to our public policy and law, including the Freedom of Information Act.  You promised that wherever possible, important policy decisions would be made in public view, and not as the result of secret special interest deals hidden from the American people.
    Your Administration’s negotiation of ACTA has been conducted in stark contrast to every one of these promises.  In the interest of brevity, we’ll focus here on the three principal ways in which your Administration’s negotiation of ACTA undercuts the credibility of your previous promises.
    First, ACTA’s negotiation has been conducted behind closed doors, subject to intense but needless secrecy, with the public shut out and a small group of special interests very much involved.  The United States Trade Representative (USTR) has been involved in negotiations relating to ACTA for several years, and there have been drafts of portions of the agreement circulating among the negotiators since the start of negotiations. Despite that, the first official release of a draft text took place only in April, 2010. And following that release the USTR has not held a single public on-the-record meeting to invite comments on the text.  Worse, in every subsequent meeting of the negotiating parties, the U.S. has blocked the public release of updated text.  The U.S. often has acted alone in banning the distribution of the revised text, contrary to the strong majority view of other negotiating partners to promote public inspection and comment. Because the negotiations have operated on a consensus basis, the U.S. vote against transparency has been dispositive.
    This degree of secrecy is unacceptable, unwise, and directly undercuts your oft-repeated promises of openness and transparency.  Rather than seeking meaningful public input from the outset, your Administration has allowed the bulk of the public debate to be based upon, at best, hearsay and speculation.  Yet, ACTA is a trade agreement setting out a range of new international rules governing intellectual property; as the G-8 called it, a “new international framework.”  It is not (the claims of the USTR notwithstanding) related in any way to any standard definition of “national security” or any other interest of the United States similarly pressing or sensitive.  The Administration’s determination to hide ACTA from the public creates the impression that ACTA is precisely the kind of backroom special interest deal – undertaken in this case on behalf of a narrow group of U.S. content producers, and without meaningful input from the American public – that you have so often publicly opposed.
    Second, the Administration has stated that ACTA will be negotiated and implemented not as a treaty, but as a sole executive agreement. We believe that this course may be unlawful, and it is certainly unwise.
    Now that a near-final version of the ACTA text has been released, it is clear that ACTA would usurp congressional authority over intellectual property policy in a number of ways. Some of ACTA’s provisions fail to explicitly incorporate current congressional policy, particularly in the areas of damages and injunctions.[1] Other sections lock in substantive law that may not be well-adapted to the present context, much less the future.[2] And in other areas, the agreement may complicate legislative efforts to solve widely recognized policy dilemmas, including in the area of orphan works, patent reform, secondary copyright liability and the creation of incentives for innovation in areas where the patent system may not be adequate.[3] The agreement is also likely to affect courts’ interpretation of U.S. law.[4]
    The use of a sole executive agreement for ACTA appears unconstitutional.[5] The President may only make sole executive agreements that are within his independent constitutional authority.[6] The President has no independent constitutional authority over intellectual property or communications policy, the core subjects of ACTA. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.[7] ACTA should not be pursued further without congressional oversight and a meaningful opportunity for public debate.
    The USTR has insisted that ACTA’s provisions are merely procedural and only about enforcing existing rights. These assertions are simply false. Nearly 100 international intellectual property experts from six continents gathered in Washington, DC in June, 2010 to analyze the potential public interest impacts of the officially released text. Those experts – joined by over 650 other experts and organizations – found that “the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.” The expert statement notes that:
    ·         Negotiators claim ACTA will not interfere with citizens’ fundamental rights and liberties; it will.[8]
    ·         They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.[9]
    ·         They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.[10]
    ·         And they claim that ACTA does not require “graduated response” disconnections of people from the internet; however, the agreement encourages such policies.[11]
    Academics and other neutral intellectual property experts have not had time to sufficiently analyze the current text and are unlikely to do so as long as there is no open public forum to submit such analysis in a meaningful process. Rather than create such a forum, the USTR has released text accompanied by the announcement that the negotiations are finished and the time for public comment, which was never granted in the first instance, is over. This is not meaningful, real-time transparency, and it is certainly not the kind of accountability that we were expecting from your Administration.  We know enough to know that ACTA’s provisions are of significant interest to the general public, because they touch upon a wide range of public interests and are likely to alter the substantive law governing U.S. citizens.  It is clear that before ACTA negotiations proceed further, Congress must be involved.
    Third, and finally, we are concerned that the purpose that animates ACTA is being deliberately misrepresented to the American people.  The treaty is named the “Anti-Counterfeiting Trade Agreement”.  But it has little to do with counterfeiting or controlling the international trade in counterfeit goods. Rather, this agreement would enact much more encompassing changes in the international rules governing trade in a wide variety of knowledge goods – whether they are counterfeit or not – and would establish new intellectual property rules and norms without systematic inquiry into effects of such development on economic and technical innovation in the U.S. or abroad. These norms will affect virtually every American and should be the subject of wide public debate.
    Our conclusion is simple: Any agreement of this scope and consequence must be based on a broad and meaningful consultative process, in public, on the record and with open on-going access to proposed negotiating text and must reflect a full range of public interest concerns. For the reasons detailed above, the ACTA negotiations fail to meet these standards.
    While you cannot go back in time, you still have the opportunity to allow for meaningful public input, even at this late date.  Accordingly, we call on you to direct the USTR to halt its public endorsement of ACTA and subject the text to a meaningful participation process that can influence the shape of the agreement going forward. Specifically, we call on you to direct USTR to:
    1.       Signal to other negotiators that the U.S. will not sign ACTA before the conclusion of a meaningful public participation process and another round of official negotiations where public participation is encouraged;
    2.       Hold a meaningful open, on-the-record public hearing on the draft text, the results of which will be used to determine what proposed changes to the agreement the administration will propose;
    3.       Renounce its position that the agreement is a “sole executive agreement” that can tie Congressional authority to amend intellectual property laws without congressional approval and instead pledge to seek congressional approval of the final text;
    4.       Consider reforms to the USTR’s industry trade advisory committee (ITAC) process that would allow for a wide range of official advisors;
    5.       Propose new language for the creation of the ACTA Committee that would require open, transparent and inclusive participation that takes into account the viewpoints of other stakeholders, including inter-governmental organizations (IGOs) and non-governmental organizations, in line with the principles of the World Intellectual Property Organization’s development agenda.[12] 

    Brook Baker                                                         
    Northeastern University School of Law
    Derek E. Bambauer?Brooklyn Law School
    Mark Bartholomew
    University at Buffalo Law School
    Barton Beebe                                                       
    New York University School of Law                 
    Yochai Benkler                                                    
    Harvard Law School
    Heidi Bond?Seattle University 
    Denis Borges Barbosa
    Catholic University, Rio de Janeiro                                                    
    James Boyle                                                          
    Duke University School of Law                          
    Annemarie Bridy                                                  
    University of Idaho School of Law
    Dan L. Burk
    University of California, Irvine
    Diane Cabell?Berkman Center, Harvard University                 
    Michael A. Carrier
    Rutgers Law School-Camden
    Michael Carroll
    American University Washington College of Law
    Colleen Chien?Santa Clara University School of Law
    Andrew Chin                                                       
    University of North Carolina School of Law
    Margaret Chon
    Seattle University School of Law
    Susan Crawford?Cardozo Law School
    Prof. Michael Davis?CSU College of Law
    Alexander S. Dent?The George Washington University  
    Alex Feerst?Stanford Law School Center for Internet & Society
    William Fisher                                                      
    Harvard Law School                                            
    Sean Flynn                                                            
    American University Washington College of Law
    Dave Fagundes
    Southwestern Law School
    Jon M. Garon ?Hamline University School of Law
    Michael Geist
    University of Ottawa School of Law
    James Gibson
    University of Richmond
    Shubha Ghosh
    University of Wisconsin School of Law
    Debora J. Halbert?University of Hawai`i at Manoa
    Robert A. Heverly?Albany Law School of Union University
    Cynthia Ho
    Loyola University of Chicago School of Law
    Dan Hunter                                                          
    New York University School of Law                 
    Peter Jaszi                                                             
    American University Washington College of Law
    David R. Johnson
    New York Law Schoo
    Amy Kapczynski
    UC Berkeley School of Law
    Alex Leavitt
    Massachusetts Institute of Technology
    Lawrence Lessig
    Harvard Law School
    David Levine
    Elon University School of Law
    Jake Linford
    Florida State University College of Law
    Michael J. Madison?University of Pittsburgh School of Law
    Mark McKenna
    Notre Dame Law School
    Hiram Meléndez-Juarbe
    University of Puerto Rico Law School
    Gabriel J. Michael?The George Washington University
    Viva R. Moffat?University of Denver College of Law
    Michael R. Morris?University of Edinburgh
    Tyler Ochoa
    Santa Clara University School of Law
    Kevin Outterson
    Boston University
    Dr Luigi Palombi
    Australian National University
    Frank Pasquale
    Seton Hall School of Law
    Malla Pollack?co-author, Callmann on Unfair Competition, Trademarks, and Monopolies?(formerly Univ. of Idaho)
    Kenneth L. Port
    William Mitchell College of Law
    David G. Post?Beasley School of Law, Temple University
    Srividhya Ragavan?University of Oklahoma College of Law
    R. Anthony Reese
    UC Irvine School of Law
    Jerome H. Reichman
    Duke Law School
    Betsy Rosenblatt
    Whittier Law School
    Patrick S. Ryan
    University of Colorado at Boulder
    Pam Samuelson
    UC Berkeley School of Law
    Jason M. Schultz
    UC Berkeley School of Law
    Susan K. Sell
    The George Washington University
    Wendy Seltzer
    Princeton Center for Information Technology Policy 
    Jessica Silbey?Suffolk University Law School
    Brenda Reddix-Smalls
    North Carolina Central University School of Law
    Christopher Sprigman
    University of Virginia School of Law
    Elizabeth Stark
    Yale University
    Katherine Strandburg
    New York University School of Law
    Talha Syed
    UC Berkeley School of Law
    Deborah Tussey?Oklahoma City University School of Law
    Jennifer M. Urban
    UC Berkeley School of Law
    Jonathan Weinberg
    Wayne State University
    Darryl C. Wilson
    Stetson University College of Law
    Jane K. Winn
    University of Washington School of Law
    Peter K. Yu
    Drake University Law School
    Diane L. Zimmerman
    New York University School of Law
    Jonathan Zittrain
    Harvard Law School

    Max Baucus (Montana)
    Chuck Grassley (Iowa)
    Gary Locke
    Hillary Clinton
    Cameron F. Kerry
    Geovette E. Washington
    Quentin Palfrey
    Andrew McLaughlin,
    Phil J. Weiser
    Alan Hoffman
    Victoria Espinel
    Lisa Garcia
    Miriam Sapiro
    Daniel Weitzner
    Marc Berejka
    David Kappos