[A2k] 75+ Profs Call on Obama to Halt ACTA

Sean Flynn sflynn at wcl.american.edu
Thu Oct 28 18:48:01 PDT 2010

Over 75 Law Profs have signed a sharply worded letter to president Obama calling for the opening of the process for considering ACTA.

The letter calls on the President 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."

The original letter was drafted and circulated by

Chris Sprigman, University of Virginia, 434-249-4345

Dave Levine, Elon University, 336-279-9298 

Sean Flynn, American University, 202-294-5749

This afternoon at a public consultation on ACTA and the right to health, the UN Special Rapporteur on the Right to health commented that the process for creating acta appears to violate international human rights obligations for ensuring participation in law making affecting access to medicines and other health issues. 

Blog version:


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. Other sections lock in substantive law that may not be well-adapted to the present context, much less the future. 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. The agreement is also likely to affect courts' interpretation of U.S. law. 

The use of a sole executive agreement for ACTA appears unconstitutional. The President may only make sole executive agreements that are within his independent constitutional authority. 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. 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.
*	They claim ACTA is consistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS); it is not.  
*	They claim ACTA will not increase border searches or interfere with cross-border transit of legitimate generic medicines; it will.  
*	And they claim that ACTA does not require "graduated response" disconnections of people from the internet; however, the agreement encourages such policies.  
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.   



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

Brian W. Carver
UC Berkeley School of Information

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

 Michael Davis
CSU College of Law

Alexander S. Dent
The George Washington University	

Alex Feerst
Stanford Law School Center for Internet & Society

Giusella Finocchiaro
University of Bologna

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 School

Amy Kapczynski
UC Berkeley School of Law

Alex Leavitt 
Comparative Media Studies, MIT

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

Ira Nathenson
St. Thomas University School of Law

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

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

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 - Boalt Hall

Deborah Tussey
Oklahoma City University School of Law

Jennifer M. Urban
UC Berkeley - Boalt Hall

Yousuf A Vawda
University of KwaZulu Natal, South Africa

Jonathan Weinberg
Wayne State University

Darryl C. Wilson
Stetson University College of Law

Jane K. Winn
University of Washington School of Law

Mark Wojcik
John Marshall Law School

Peter K. Yu
Drake University Law School

Diane L. Zimmerman
New York University School of Law

Jonathan Zittrain
Harvard Law School

The Honorable Max Baucus
Senate Committee on Finance

The Honorable Chuck Grassley 
Ranking Member
Senate Committee on Finance

The Honorable Ron Wyden
Senate Committee on Finance
Subcommittee on Trade, Customs, and 
Global Competitiveness 

The Honorable Mike Crapo
Ranking Member
Senate Committee on Finance
Subcommittee on Trade, Customs, and 
Global Competitiveness 

The Honorable Sander Levin
Acting Chairman
House Way and Means Committee 

The Honorable Dave Camp
Ranking Member
House Ways and Means Committee

The Honorable John S. Tanner
Acting Chairman
House Ways and Means Committee
Subcommittee on Trade

The Honorable Kevin Brady
House Ways and Means Committee
Subcommittee on Trade

The Honorable Patrick Leahy
Senate Committee on the Judiciary

The Honorable Jeff Sessions
Ranking Member
Senate Committee on the Judiciary

The Honorable John Conyers, Jr.
House Committee on the Judiciary

The Honorable Lamar Smith
Ranking Member
House Committee on the Judiciary

The Honorable Hillary Rodham Clinton
Secretary of State

The Honorable Gary Locke
Secretary of Commerce

Victoria Espinel
U.S. Intellectual Property Enforcement Coordinator

David Kappos
Under Secretary of Commerce for Intellectual Property
Director, U.S. Patent and Trademark Office

Alan Hoffman
Deputy Chief of Staff
Office of the Vice President

Cameron F. Kerry
General Counsel
Department of Commerce

Geovette E. Washington
Deputy General Counsel
Department of Commerce

Marc Berejka
Senior Policy Advisor
Office of the Secretary
Department of Commerce

Quentin Palfrey
Deputy General Counsel for Strategic Initiatives
Department of Commerce

Andrew McLaughlin
Deputy Chief U.S. Technology Officer

Phil J. Weiser
Deputy Assistant Attorney General
Department of Justice

Miriam Sapiro
Deputy U.S. Trade Representative

Lisa Garcia
Assistant U.S. Trade Representative for
Intergovernmental Affairs 

Daniel Weitzner
Associate Administrator
Office of Policy Analysis and Development

Andrew Reynolds
Acting Science and Technology Adviser to the
Secretary of State

Sean Flynn
Associate Director
Program on Information Justice and Intellectual Property
American University Washington College of Law
202 274 4157

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