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 While this might be out of date, we really don't know what's changed because of the USTR's obnoxious refusal to let the public know what it is pitching in their name.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. icon
    Mike Masnick (profile), 18 May 2012 @ 12:32am


    Is it really as simple as someone accused of copyright infringement need only prove that they are the copyright holder or no copyright exists? That doesn't seem so difficult or arcane.

    I'm not sure you understand how burdens of proof work under the law. Different sides have different burdens to prove, or the other side "wins." It makes sense the way the burden is set up now, because the holder of the copyright has to first show that they hold the copyright and that it's valid.

    This came up in the Georgia State case we just wrote about -- where some of the copyrights were rejected because the publishers could not prove they held the copyright.

    But if you flip the burden, then if the accused -- often someone who cannot afford legal help -- fails to meet the burden of proving the copyright is invalid or that the accuser does not hold the copyright, then the copyright is assumed valid and it is assumed they infringe. That's a massive change.

    Take the Georgia State case, for example. Unless the school could somehow *prove* that the publishers *did not* hold the copyrights, then the assumption is that they did (even if they have no proof). That's very problematic.

    Further, your statement doesn't even make much sense. Why would the *accused* have to show that they are the copyright holder or that no copyright exists?

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