Is the US Senate going to put a stop to ACTA?

Last Updated on 2022-07-08 by Joop Beris

The sad and dreary tale concerning ACTA continues, unfortunately. While the European Court of Justice is examining ACTA to see if it possibly conflicts with existing EU laws and treaties, it seems that across the pond in the USA, the Senate is apparently waking up to what ACTA means, following a White House statement that ACTA is legally binding for the United States. This is a complete reversal of earlier statements that proclaimed that the agreement was not binding for the United States.

In a response to Senator Wyden, the US State Department admits that ACTA is in fact binding under international law for the United States as well. According to the US State Department:

Under international law, the ACTA is a legally binding international agreement. By its terms, the ACTA enters into force when at least six parties have deposited instruments indicating their consent to be bound. Accordingly, once in force for the United States, the ACTA will impose obligations on the United States that are governed by international law. As in the case of other international agreements, it is possible that Congress could enact subsequent changes in U.S. law that are inconsistent with U.S. international obligations.

This is of course what many opponents of ACTA, including myself, have been saying all along. ACTA will impose obligations on any nation that has signed the treaty. Otherwise, what would be the point of making and signing the treaty in the first place? Saying that an international trade agreement will not impose obligations is utter nonsense.
Another important thing to note is that only six parties indicating consent are needed for ACTA to come into force. That’s rather odd, because six is not even half the number of negotiating parties. Democracy, we’ve heard of it…
Congress would apparently have the option to enact laws or changes to existing laws that run counter the intentions of ACTA. However, this would mean that the US would have to convince the other signatories that ACTA needs to be amended or the US could withdraw from the treaty.

Another very interesting section of this letter is below:

Apparently, ACTA does impose obligations once it is in force, in the fields of border enforcement, criminal penalties for property offenses and such. Could this be taken to mean something along the lines of extensive screening of passengers at airports, for instance? This has been mentioned by opponents of ACTA in the past. And what are these “civil remedies” exactly? A civil remedy refers to the remedy that a party has to pay to the victim of a wrong he commits. This is different from a fine for criminal offenses. For example, if an individual steals something, he has broken a criminal law and is subject to criminal prosecution. The person he stole something from is also entitled to bring a civil lawsuit in order to recover for the loss of the item that was stolen. Civil remedies are most often monetary. They may include actual damages, such as lost wages or lost valuables, as well as pain and suffering (definition and example taken from wisegeek.com).
The victim in this case would of course be the owner of the copyright or intellectual property and the other party would be the infringing party.  The available ACTA text fails to specify if home users could be infringing parties because it does not specify a minimal level of infringement. ACTA does specify that the victim of the infringement can set the amount of damages suffered. And we all know that the entertainment industry sets extreme amount of damages in terms of lost profits for sharing as little as a single music track.

The letter doesn’t contain any further surprises but confirms that ACTA is the direct result of the US Congress’ desire for “international cooperation to enhance enforcement of intellectual property rights”. Where US intellectual property is concerned, of course.

What is surprising is this sudden turn of 180 degrees and the confirmation of suspicions that ACTA will have consequences for US domestic laws and those of other signatories, of course. This is something that ACTA supporters have long denied. ACTA would not change a thing, they said. Even our own Minister Verhagen has made such claims.  The US has had a fairly relaxed view when it came to ACTA, but now that the State Department has made it clear that ACTA will affect Congress and its powers, it is probably high time that the US Congress got its act together and speaks up because as it stands, the Obama administration could not even ratify, let alone implement, ACTA without Congressional support. More about this on Techdirt!

What all of this means for the future of ACTA is highly unclear at the moment. Especially the part where the letter says that only “six parties have deposited instruments indicating their consent to be bound” would be enough to put ACTA in force. I don’t know how that sentence is supposed to be interpreted. It could mean six parties who signed ACTA, six parties who ratified ACTA or simply six parties who have agreed to sign and ratify, such as the Netherlands has done.
So what happens if the US Congress should put a stop to ACTA? That would mean the initiator and largest supporter of ACTA falls away. The probability of this happening is not unlikely, thinking about how SOPA changed US public opinion. Should that happen, any verdict by the EU Court of Justice may be purely academic and ACTA may die a quiet death. We’ll all be the better for it!