How TPP Would Put Massive Burdens On Those Accused Of Infringement

from the flipping-the-equation dept

Thu, May 17th 2012 8:05pm — Mike Masnick

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 While this might be out of date, we really don't know what's changed because of the USTR's obnoxious refusal to let the public know what it is pitching in their name.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.

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

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chelleliberty (profile), 17 May 2012 @ 8:22pm

Expectations
"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."

Well, no I really wouldn't think that, but I may have become cynical. It's not good enough to do it via takedowns and some semblance of due process with the DMCA, leaving it to the private companies to do the dirty work; that leaves too many loopholes, at least for some...

So that makes it almost a given that this was the next step. Isn't it just a given that the government will do anything it can to agglomerate power to itself?
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chaogomu, 17 May 2012 @ 8:38pm

Hopes that will be dashed.
I would love to see this get signed by Obama and then have the courts ignore it because congress never saw it. That would pretty much force it (and acta) to the senate for a 2/3 vote.

Sadly I don't have that much faith in the court system.
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Anonymous Coward, 17 May 2012 @ 8:41pm

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. Either you are or you're infringing. Either it's in the public domain or you're infringing.

Further, why do US legal precepts have to be the guiding doctrine for international agreements?
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Anonymous Coward, 17 May 2012 @ 8:43pm

But the Public is our NUMBER ONE ENEMY!
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Anonymous Coward, 17 May 2012 @ 8:52pm

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.

What is your understanding of how the law will change. Are you suggesting that by virtue of this agreement that existing statutes in the US will have to be re-written as a result of this agreement?
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Anonymous Coward, 17 May 2012 @ 8:59pm

The most vile aspect of TPP is that it undermines democracy,
excluding the majority of society to create a law is not a democratic process, where you expose what you want to do to everybody and it gets hammered by all sides until it is mold into something that fits inside it.
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Anonymous Coward, 17 May 2012 @ 9:01pm

Re:
LoL
A 100 judges wouldn't be able to agree on what is infringing or not and you think anybody else can?
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sophisticatedjanedoe (profile), 17 May 2012 @ 9:13pm

...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.

Unfortunately, this happens here and there in porn bittorent cases today. Many of these cases are based on bogus copyrights, plus myriad of other problems, and judges assume that trolls don't blatantly lie. It's up to defense to prove that a scumbag is a scumbag.
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Anonymous Coward, 17 May 2012 @ 9:31pm

Re:
Everything is copyrighted at the moment of creation. It isn't a problem of proving that a copyright exists, because it does. It's proving that they own the copyright and can go forward with the case. Example, music industry regularly sued people over music they did not have the copyright to. They assumed they had it, but it was proven they didn't. Where this gets muddled is it's pretty damn hard to prove the other side doesn't own the copyright without a hoard of legal briefs asking for access to the plaintiffs records on the matter. When in reality, they should have to have proof that they own something to even bring a case forward in the first place.
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Anonymous Coward, 17 May 2012 @ 9:37pm

Re: Hopes that will be dashed.
How valid do you think a constitutional challenge would be on those grounds? I'm genuinely curious. I've never seen an unratified treaty challenged in the courts directly, and goodness knows we have enough unratified treaties we abide by anyway that there ought to be at least one case.
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Dr Evil, 17 May 2012 @ 9:38pm

is this your copyright?
didn't find it registered, therefore its not subject to copyright. I win. My friend over here says its his, you say its yours. I believe my friend. I win. I see a new business model....
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Anonymous Coward, 17 May 2012 @ 9:48pm

Re:
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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Anonymous Coward, 17 May 2012 @ 9:55pm

America is run by fascist tyrants and has been for many many, years. You have no say, as this and so many other things continuously prove.

Your job is to obey, period. Fascists are your master and your only real enemy.

Who the current puppet figure head is (in this case, Obama and Bush before him) is irrelevant. After November, it could be Romney or it could be Joe Sixpack. It doesn't matter - they are just the hand that the fascist magicians allow you to see. Its all misdirection.

I often wonder when American fools will wake up to this - I hope its before the planet is set on an irrevocable path to destruction.
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Anonymous Coward, 17 May 2012 @ 9:55pm

Re:
Answering only for myself, but that is generally how treaties work. National laws and regulations must be brought in line with the treaty agreements or the country may face penalties from its co-signatories. Hence why that 2/3 bar is so hard to overcome, rather than being a rubber stamp.

To give one example, Japan is not permitted to have an offensively-capable military under the treaty it signed with the Allies after WWII. There were questions about whether their non-combatant personnel in Iraq were actually a violation of that obligation.
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RonKaminsky (profile), 17 May 2012 @ 9:57pm

Re: Hopes that will be dashed.
Sadly I don't have that much faith in the Senate.
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RonKaminsky (profile), 17 May 2012 @ 10:02pm

Re: is this your copyright?
The problem with your theory is that you are already bankrupted by lawyer's fees by the time you are able to file your first filing in Federal court.

OTOH, I see a shining future for all kinds of infringing material being disseminated while claiming to be licensed. (This was thought of, already, and made into a separate crime, if I am not mistaken.)
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Anonymous Coward, 17 May 2012 @ 10:49pm

Re: Re:
to quote Mike: "that the accused has to prove that the other side does not hold the copyright or that the copyright is invalid" - this is totally false.

This isn't such an odd concept. The "burden" you speak of isn't very high, either you had permission from the copyright holder or you do not. The rights holder already has the confirmed right. It's up to the end user to prove that they have the rights to use it.

Think about it as in terms of a hotel room. The owners of the hotel have the rights (they own it). If you are staying in the room, either you can show your room rental proof, or you cannot. It isn't up the hotel to prove you are their illegally, beyond showing they have the right and know of no contract. As the end user, the "burden" would be on you to prove your assertion of rights to the room for that night.

Mike (and you) are trying to push the burder to the rights holders, forcing them to repeatedly and without end assert their already granted rights, with little or no penalty against those who clearly abuse them. That is an unfair burden.
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Anonymous Coward, 17 May 2012 @ 10:50pm

Re:
If you really think that, you need to move to a country really run by fascist tyrants, then you might know how good you have it here.
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Anonymous Coward, 17 May 2012 @ 11:02pm

Re: Re: Re:
>Think about it as in terms of a hotel room. The owners of the hotel have the rights (they own it).

Your comparison of ownership over physical property is far easier to prove than intangible property. And in the event that the rightsholder doesn't actually hold the copyright in question? You are trying to push the burden to the defendants based on the faith-based claims of plaintiffs. That is an unfair burden.
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Anonymous Coward, 18 May 2012 @ 12:13am

Re: Re: Re: Re:
Really, there is no difference. Do you or do you not have the rughts to that movie you are sharing with your friends? If you cannot say "Yes, I have the rights from the owners" then you just don't have the right.

It's nowhere near as complicated as the piracy apologists would like to make it out to be.
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Mike Masnick (profile), 18 May 2012 @ 12:32am

Re:
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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Mike Masnick (profile), 18 May 2012 @ 12:37am

Re: Re: Re:
This isn't such an odd concept. The "burden" you speak of isn't very high, either you had permission from the copyright holder or you do not. The rights holder already has the confirmed right. It's up to the end user to prove that they have the rights to use it.

No. You are misreading what I wrote. This is not about the stage concerning permission to use the copyright. This is earlier in the process. It's about the burdens and what needs to be satisfied as you move forward in a trial. Again, it's not about showing you have permission. That's something totally different. This is about putting the burden on the accused to show that the *other* party does not have the right to the copyright, which is very very different.

Think about it as in terms of a hotel room. The owners of the hotel have the rights (they own it). If you are staying in the room, either you can show your room rental proof, or you cannot. It isn't up the hotel to prove you are their illegally, beyond showing they have the right and know of no contract. As the end user, the "burden" would be on you to prove your assertion of rights to the room for that night.

Again, this is wrong. I don't know how familiar you are with the way burdens work in the legal system, but you've got this one mixed up. To use your analogy, this would be a case where *anyone* could accuse you of illegally being in the hotel room, and YOU would have to PROVE that they did not own the hotel. If you failed to meet that burden, then you could be found to have broken the law even if your accuser does not, in fact own the hotel.

Mike (and you) are trying to push the burder to the rights holders, forcing them to repeatedly and without end assert their already granted rights, with little or no penalty against those who clearly abuse them. That is an unfair burden.

Again, this is totally wrong. You really should read the specific details of how these burdens work. We're not talking about the stage where anyone has to prove whether or not a copyright was abused. This is at the early stages -- where the *initial* burden on the rights holder is merely to show that they actually hold the copyright. The question of abusing rights is not even discussed at this stage, so I'm not sure why you'd even bring it up, other than to do a misguided attack on something I did not say.
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Rikuo (profile), 18 May 2012 @ 12:37am

Re: Re: Re: Re: Re:
I can't believe that someone is actually stupid enough to praise guilty until proven innocent.

I accuse you of murdering my next door neighbour. With your mindset, the burden is on you to prove you didn't. Enjoy the media witch hunt and the stress of trying to prove your innocence.

Idiot.
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Mike Masnick (profile), 18 May 2012 @ 12:38am

Re: Re: Re: Re: Re:
Really, there is no difference. Do you or do you not have the rughts to that movie you are sharing with your friends? If you cannot say "Yes, I have the rights from the owners" then you just don't have the right.

This has nothing to do with the above question. It would be good if you would take the time to understand what we are talking about, rather than making up something entirely different.
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Mike Masnick (profile), 18 May 2012 @ 12:39am

Re:
What is your understanding of how the law will change. Are you suggesting that by virtue of this agreement that existing statutes in the US will have to be re-written as a result of this agreement?

Yes. That is often how treaties work.
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The eejit (profile), 18 May 2012 @ 1:16am

Re: Re: Re:
How can you prove that I do not, in fact, exist?

What is being asked is that you can prove a negative.
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grumpy (profile), 18 May 2012 @ 2:37am

Re: Re: Re: Re: Re: Re:
And this is exactly why I don't understand this issue popping up again and again. Do the law makers not see the massive potential for Denial of Service attacks in this kind of legislation? Anonymous etc. can have a field day bombarding inboxes everywhere with accusations and fake cease-and-desist letters. The cleanup costs will be tremendous. But maybe that's exactly what the lawyers are banking on...
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orbitalinsertion (profile), 18 May 2012 @ 2:47am

Re: Re: Re:
No, that is circular. The accuser should have to prove that they are, in fact, the rights holder, which is the question here. You are automatically assuming that the accuser is the rights holder.
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The eejit (profile), 18 May 2012 @ 3:02am

Re: Re:
Would it be better if the US was labelled as "oligo-fascist"?
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Anonymous Coward, 18 May 2012 @ 3:32am

Re: Re:
Fair claim, but that's no excuse for refusing to improve.
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G Thompson (profile), 18 May 2012 @ 3:35am

Re:
Both the doctrine/maxim of presumption of innocence (the Romans referred to it as Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who denies) and the doctrine of natural justice (procedural fairness) are absolutely NOT USA legal precepts.

They are in fact doctrines of legal concepts that have been around for millenia, even before the EU ratified the UN HR decleration, before the Declaration of the Rights of Man and of the Citizen (France, 1789), Magna Carta, Blackstone's ratio, etc etc.

For the TPP to actually have this in it and expect any country to uphold that part would and should be struck down as ultra vires by all higher courts.
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Anonymous Coward, 18 May 2012 @ 3:36am

and from what i understand, every country involved in this would be subject to the changes except the USA. meaning, that once everyone else was in the position of having to do what the USA says, with no recourse, the USA could then start doing something different that was more beneficial to it and more detrimental to everyone else. everyone everywhere would be guilty unless able to prove innocence, which would be almost impossible because of the ridiculous costs involved, if nothing else. i dont fucking think so!
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G Thompson (profile), 18 May 2012 @ 3:36am

Re: Re: Re:
Bingo!
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drew (profile), 18 May 2012 @ 3:52am

Re: Re: Re:
"either you had permission from the copyright holder or you do not"
Ummm, 'fair use' anyone?
You'd think there was enough court cases around now to show that it is rarely this black and white.
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The eejit (profile), 18 May 2012 @ 4:32am

Re:
Treaties do not work that way, at least in theory. The US would then be liable to all trade and economic sanctions listed in the treaty.
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quawonk, 18 May 2012 @ 4:49am

They don't tell the public because they know full well what the public would tell them: to go ... themselves. They are against the public and for the corporations and won't stop until the corporate government has full control of the Internet.
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abc gum, 18 May 2012 @ 4:59am

Past "you must be a criminal" campaigns have resulted in significant collateral damage based a rule of law where the accused is innocent until proven guilty.

How will this new "prove you're not a criminal" mantra play out in a world where business and scammers alike run carpet bombing campaigns based upon little to no evidence?

The threat letter business model is a bad idea and should be illegal, therefore I predict it will be promoted as the best thing since sliced bread.
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Chargone (profile), 18 May 2012 @ 6:17am

Re: is this your copyright?
... your first sentence...

it implies a much saner and more reasonable system than actually exists.
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Josh in CharlotteNC (profile), 18 May 2012 @ 6:37am

Re: Re: Re: Re: Re:
Do you or do you not have the rughts to that movie you are sharing with your friends? If you cannot say "Yes, I have the rights from the owners" then you just don't have the right.

Do you, or do you not, have the correct documentation that shows you are in fact the copyright holder of the work you want to sue someone over sharing? If you cannot say "Yes, Judge, here is the correct documentation" then you just don't have the right.
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Anonymous Coward, 18 May 2012 @ 6:52am

Re: Re:
And if the 18 month old draft were accurate, which laws related to copyright would need rewriting? Or is it largely other countries that would be required to raise the bar domestically?
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Anonymous Coward, 18 May 2012 @ 6:59am

Re: Re:
And if the 18 month old draft were accurate, which laws related to copyright would need rewriting? Or is it largely other countries that would be required to raise the bar domestically?
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Rekrul, 18 May 2012 @ 8:10am

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.

It's not pitching anything in the public's name. It's pitching it strictly for the corporations.
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Anonymous Coward, 18 May 2012 @ 12:59pm

Re: Re: Re:
Ok, let me try this with no analogy whatsoever, because I think the analogies have gotten out of hand. I'm going to use an example instead.

I write. I'm not brilliant, but it's something I do. I hold the copyright for my stories, which I post on various sites. I give permission for my stories to be transformed into podcasts or to have art created based on them. No one has to tell me they did that, though they can let me know if they like.

What if I were to die, or remove my works from the web and disappear? A number of readers have created audiobooks/podcasts of my shorter works. Those are floating around. What if someone were to accuse one of those people of violating copyright because they don't own the original work? If I am out of contact and my works are missing, the reader is in trouble, because I didn't give a specific permission. The permission was attached to the original text, which is now missing. The Wayback Machine doesn't archive all my work, because some of it is posted to blog sites. Voil�! No proof of permission to use the work, the reader is open to litigation by people who have no connection to me whatsoever and can simply claim they own the right. Now it's not the claimants job to produce the paperwork (an easier task for them if they're right, since companies that intend to make money off their IP tend to keep better track of their paperwork). Now it's the accused's responibility, and that becomes quite problematic.

If copyright were typically a battle of the bands between big companies, it might not matter quite as much, but there are a number of companies that are still going after ordinary people, usually with the intent to make everyone roll over without a trial. Weakening regular people with regular bank accounts versus large corporations is always going to be a problem in our money-based legal system.
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Anonymous Coward, 18 May 2012 @ 1:05pm

Re:
Using the threat of tying someone up in a porn-related case is pure evil. Many people could lose their jobs or face major social impacts just for being in a case like that, even if they won later.
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Joe, 19 May 2012 @ 6:36am

Re:
1) You're not required to put a notice of copyright claims. Berne Convention
If you want to copy a photograph (even an obvious family photo with no watermark), you have to have negatives in most places. Of course, that might be a moot point when you can't process film in a few years. ;)

2) Presumption of guilt is a violation of a pretty old doctrine in criminal law in the USA. It goes back to way before the USA, actually. Look into European history.

Ergo sum, infringement by default. Defending yourself in court is not free and they will have practically an unlimited budget compared to you. Surrounded and pounded as the military saying goings.

3) Actually, the USA stole-err borrowed a lot of these rules from the French. The 'droit right' agreements coming soon to a country near you are from France.
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Zoidberg, 19 May 2012 @ 7:38am

Re: Re: Re:
"Think about it as in terms of a hotel room"

Your analogy is bad, and you should feel bad.
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Keith Rozario, 20 May 2012 @ 6:17pm

Facebook Anti-TPP Page
Hey Guys,

There's a small Anti-TPP page specifically targeting Malaysia. I'm not sure about other member countries, but as a Malaysian in Malaysia, there is a real lack of awareness among the general population on the implications of the TPP.

Just like most other member nations, nothing has been revealed regarding the real impact of the treat, and with the tight timeline it's unlikely the treaty would get the right amount of awareness before it is signed.

Please support by visiting and liking:
http://www.facebook.com/pages/Malaysians-Against-TPP/150403175084523?ref=tn_tnmn

Thanks.
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Seegras (profile), 21 May 2012 @ 5:35am

Laws to rewrite
- The declaration of human rights
- every constitution

Because what we have here is fundamentally incompatible with any state of law.

The proposal is nothing less than the abolishment of the fundamental principles under which any modern state of law is defined. The same as abolishing the right to vote and setting up a hereditary absolutist monarch in a democracy.
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