IP Law Professors: Obama Secret Anticounterfeiting Treaty Unconstitutional Without Congressional Approval

Still the best explanation out there of how a bill moves through Congress to become a law, although it omits the role of lobbyists and corporations in initiating laws. But lots of law professors think that the Obama Administration's forgotten the Schoolhouse Rock video many of us grew up with.

Thirty law professors think that the Anti-Counterfeiting Trade Agreement ought to work the same way - by going through Congress and that ACTA is unconstitutional because it purports to be and will be a binding treaty internationally under the doctrine of pacta sunt servanda (agreements must be kept), but without Congressional approval, is not enforceable domestically and thus requires Congressional approval.   But according to the 30 professors, other countries will be able to punish US noncompliance with countermeasures consistent with international law.   The professors point out that even the most radical exponents of unilateral Presidential action don't believe that the President can act unilaterally where powers are specifically reserved to Congress by Article 1, Section 8 of the US Constitution.

The professors urge that if President Obama signs ACTA, he should reserve the right of Congress to approve it before it becomes binding.  This, according to the professors, would protect us under international law in the case of non-implementation.

More on ACTA and the Obama Administration's IP Czar here.

The EFF's take on why you should care here.

International IP and the Public Interest call for IP law professors to sign on here.
Final text of ACTA via the United States Trade Representative here.

Article I, Section 8 of the U.S. Constitution gives Congress the power to regulate IP.

U.S. Constitution - Article 1 Section 8

Article 1 - The Legislative Branch
Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


The 30 professors opposing ACTA below, their position paper here.

Sean M. Flynn
(Counsel of Record)
American University Washington College of Law
4801 Massachusetts Ave NW
Washington D.C. 20016

Brook Baker Northeastern School of Law

Dan L. Burk University of California, Irvine School of Law

Brian W. Carver University of California, Berkeley School of Information

Anthony Falzone Stanford Law School

Eric Fink Elon University School of Law

Michael Geist University of Ottawa School of Law

Llewellyn Joseph Gibbons University of Toledo School of Law

Leah Chan Grinvald Saint Louis University School of Law

Amy Kapczynski University of California, Berkeley School of Law

Dennis S. Karjala Arizona State University College of Law

Julian Kinderlerer University of Cape Town Department of Private Law

Lawrence Lessig Harvard Law School

David Levine Elon University School of Law

Jamie Lund St. Mary‟s University School of Law

Michael J. Madison University of Pittsburgh School of Law

Dr. Jeremy Malcolm Consumers International

Mark P. McKenna University of Notre Dame Law School

Michael Morris University of Edinburgh School of Law

Ira Nathenson St. Thomas University School of Law

Kevin Outterson Boston University School of Law

Frank Pasquale Seton Hall Law School

Varun Piplani George Washington University

Kenneth L. Port William Mitchell College of Law

Srividhya Ragavan University of Oklahoma College of Law

Wendy Seltzer Princeton Center for Information Technology Policy

Jessica Silbey Suffolk University Law School

Christopher Sprigman University of Virginia School of Law

Yousuf A. Vawda University of KwaZulu Natal Faculty of Law

Peter K. Yu Drake University Law School


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