How TPP Would Put Massive Burdens On Those Accused Of Infringement

from the flipping-the-equation dept

Due to massive secrecy and a near total lack of transparency by the US Trade Representative Ron Kirk, we don't know for sure what the US is negotiating "in our name" as it advances through the negotiation stages of the Trans Pacific Partnership agreement. What little we do know comes from a leaked version of the US's IP proposal from last year. While this might be out of date, we really don't know what's changed because of the USTR's obnoxious refusal to let the public know what it is pitching in their name.

Thus, it's reasonable to look at what was in the original pitch. And, what we see is not good. Jodie Griffin from Public Knowledge is highlighting some of the problems with the proposal, including the fact that it appears to flip the burden on a number of things in copyright from the copyright holder having to prove the basics (that they hold the copyright, that the copyright is valid, etc.) to the reverse: that the accused has to prove that the other side does not hold the copyright or that the copyright is invalid. And this is for both civil and criminal infringement. That is, TPP takes the very basics of a system in which you are innocent until proven guilty, and effectively says that the courts should assume that the plaintiff doing the accusing is correct, and the entire burden falls on the accused to prove it did not infringe. That seems like a pretty massive change, and one that would severely alter current US law on the subject.

You would think that if the US was negotiating for such a massive change in US law it would be open to a public discussion about the matter. However, as we've noted repeatedly, for whatever reason the Obama administration and the USTR in particular, seem to have no interest in letting the public in on this little game. Instead, it huddles with Congress (the same Congress who for years has done the entertainment industry's bidding whenever possible) and directly with industry lobbyists -- and then declares that it is being "transparent." This is crony capitalism at its finest, and the public continues to suffer.

Filed Under: public knowledge, ron kirk, secrecy, tpp, ustr

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  1. identicon
    Anonymous Coward, 17 May 2012 @ 9:48pm


    It places an unreasonable burden of proof on what are often private citizens with limited funds to pay copyright lawyers and researchers to look up and prove the copyright with documented paper trails, which are required for court. There are many works which are in the public domain or under creative commons license, but there is no magic master list somewhere, nor do all public domain or cc works have the license directly on/in the file/work. There are other works which have had their copyright lapse or where copyright cannot be determined by current records (called "orphans" right now, though I like "hostages" better). It's not simply a matter of proving you own a work - many works are free for distribution even if you don't own them. Proving this to a court's satisfaction is harder than it sounds.

    Additionally, placing this burden of proof on the defendant allows for the creation of troll lawsuits, where a company that does not own the copyrights cheerfully goes around accusing as many people as possible of infringement in the hopes that proving their innocence becomes too much of a burden for the accused, so they settle for a smaller amount of money, even if innocent. If this were to happen, the troll companies would keep the money. The actual copyright owners would never see any of it.

    And finally, I don't think that "innocent until proven guilty" is one of those (many) terrible exports of the American judicial system. I think it's one of the rare gems. It weakens the power of governments and large companies to destroy the lives of private citizens out of vendetta, and it forces greater accountability on the court system itself. It also helps make the public defender system even potentially workable here, for all its (many) flaws. (Disclaimer: my sister in law is an overworked public defender.) It's imperfect, but "innocent until proven guilty" has a lot of good things going for it as a legal theory, and America is not the only country to have thought of it.

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