by Mike Masnick

Filed Under:
ron kirk, tpp, transparency, ustr

Still Plenty To Be Concerned About With TPP

from the being-more-public-would-be-good dept

While we are encouraged by the USTR's supposed recognition of the importance of limitations and exceptions in copyright law in their latest TPP draft proposal, there are still significant concerns about the TPP agreement, as a whole, including with the very specifics of the language around exceptions and limitations. Already, a few folks who have been burned before by the USTR are worried that the language being used is so narrow as to only allow fair use-like exceptions in a very narrow set of circumstances. Furthermore, as Sean Flynn lays out, there are many other key issues at stake in the specifics of the text around the IP provisions, way beyond just the limitations and exceptions. These include questions about the copyright status of "temporary copies" (think cached copies), parallel importation ("gray market"), copyright term extension, digital locks and a few other things as well.

You know what would make it so that people weren't so damned concerned about all of this? Opening up the proposed text so that the public can comment on it and give feedback. The fact that the USTR was willing to reveal that it's included a section on limitations and exceptions was nice... but, in part, helped to show the problem: that the USTR only gets to reveal little bits of info it wants to reveal, rather than presenting the document in an open fashion for public comment. That's not transparent at all. We're encouraged to hear that the USTR did share the "exceptions and limitations" language with some who weren't part of the formal "advisory committee" process, but we're still not talking about an open and transparent process -- and without that there are all sorts of opportunities for problems to arise.

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  1. identicon
    Anonymous Coward, 9 Jul 2012 @ 12:52pm

    Re: Re: Re: Re: Re: Re:

    Why not try reading the Supreme Court holding before launching off on yet another self-indulgent diatribe about your legal expertise? Let me make this one issue easy for you.

    From the syllabus published with the decision in MercExchange v. eBay:

    Held: The traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. That test requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved
    by a permanent injunction. The decision to grant or deny such relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion. These principles apply with equal force to Patent Act disputes. [A] major departure from the long tradition of equity practice should not be lightly implied. Weinberger v. Romero-Barcelo, 456 U. S. 305, 320. Nothing in the Act indicates such a departure. Pp. 26.

    The above articulates the longstanding "four-factor test". Note that not one portion of the test is changed. The only thing that has changed is the court notes permanent injunctions in patent cases should not almost automatically be awarded to a prevailing patentee. The test must be applied in each instance. You might want to also take a look at the concurring opinions and how they relate this holding to then current practices within the CAFC

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