Trans-Pacific Partnership Agreement (TPPA) is a global effort to create a Free Trade Agreement between international communities. Currently led by the United States corporate political action groups the secretive process involves 11 countries at this time with hopes of involving international groups as large as China. The process of developing the legislation is done in secret. Consumers and protestors only have leaked parts of the agreement for concrete information.

Currently the United States is working with representatives from Mexico, Canada, Vietnam, Peru, Singapore, New Zealand, Chile, Malaysia, Brunei, and Australia to draft the agreement. Negotiations began in 2007 and the 14th meeting is scheduled for September 2012. Corporations meet with the trade representatives to lobby for policy at the TPPA meetings. Members of Congress and the public are not allowed at TPPA meetings.

The Trans-Pacific Partnership Agreement places restrictions on national and international trade. Current copyright laws are re-written to benefit corporations. The agreement creates a model for regulation of Asian markets and attempts to neutralise China’s influence on Asian economies.

Price controls, tariffs, and trade restrictions are aspects of the TPPA that cause consumers to be alarmed. Human rights groups and other protest groups believe that the TPPA will endow foreign investors with special rights, eliminating national economic autonomy.

What are the threats of TPPA implementation?

The threats perceived by human rights groups and international market managers are numerous, including restrictions on innovation and intellectual property. The current congressional status in the United States regarding commerce regulation is complete and exclusive. Under the new trade agreement, Congress and other governments would have to abide by foreign regulations and tribunals.

The Internet is a global communications device. It does not currently have national boundaries. TPPA rules create liabilities in some countries, meaning a company may be committing infringement in one nation and be liable while still remaining legal under another other national laws. The company is held responsible for both legal situations under TPPA law. The net effect is to reduce national sovereignty in international trade transactions. Areas of mining, tobacco control, genetic food development and labelling, pharmaceuticals, imports, exports, and currency are regulated under the TPPA.

Why are the Trans-Pacific Partnership Agreement negotiations secret?

Foreign control of rights to information, science, and innovation, are fears of human rights groups who monitor the secret policy negotiations led by the office of the United States Trade Representative (USTR).

Fears that corporate interests will outweigh the welfare of the citizens have groups demanding Ambassador Kirk, head of the USTR delegation release the full text of the proposed trade agreement. Members of Congress and the public are denied access to the proposed document while corporate advisors have full access to the draft documents through the USTR.

Many trade negotiations are held privately during the drafting of new policies and international agreements. The Trans-Pacific Partnership Agreement offers policy changes that will affect services, production, and information across the world.

Many groups are concerned that important and relevant stakeholders have been left out of the process. These groups include consumers, health and patient groups, students, and more. The non-transparent government actions to legislate international trade are contrary to the American ideal of transparency in government.

Representative Kirk defended the secrecy of the trade talks with a reference to past secret trade agreement negotiations. The current negotiations will create international law, which is a different affair than setting tariffs. The impacts of TPPA will last for generations with corporations holding an unbalanced role in policy development by virtue of excluding consumers and interest groups.

What are the possible impacts of the Trans-Pacific Partnership Agreement?

• Restricted Internet trade

o Copyright infringement will stifle creative use of the Internet and cause numerous legitimate websites to be persecuted and restricted.

o Copyright law will infringe on private and individual cultural rights.

o Internet Service Providers (ISPs) will be held responsible for copyright protection, restricted payment processing and more.

• Intellectual property provisions

o Endless copyright terms create undemocratic conditions for development and trade. Traditional copyright law does not address modern digital content markets. The TPPA does not acknowledge the openness of the Internet and attempts to restrict access to copyrighted material instead of capitalizing on consumer use.

o Patent protections and intellectual property copyrights may be unlimited, stifling research and development of science.

o Establishes criminal punishment of trademark infringement and charges ISPs with excluding websites and domains from restricted areas.

• Patent extensions on medications and other products

o Life-saving medications remain costly for longer periods under the proposed legislation. An effect of this is to stifle innovation and competition.

o Some nations will be forced to restructure social models of health care.

• Foreign investment will encourage outsourcing of American jobs to emerging economies.

o Other nations will be forced to restructure entire models of trade such as Australia’s Pharmaceutical Benefits Scheme.

o Trade in Asia would be restructured and other nations would be forced to restructure national polices to accommodate TPPA provisions.

Overwhelming opposition to similar legislation in the United States caused Congress to pull its pending legislation in early 2012. Lessons learned from the 10 million people who protested the Stop Online Piracy Act (SOPA) can be applied to the development of the TPPA.

The attempted globalization of trade by the framers of the Trans-Pacific Partnership Agreement is based on sound historical evidence and marketing theories. However, the internationalization of key social markets like medicine, science, and production, meets with resistance by the less powerful. There is overwhelming support for a free and open Internet by consumers and the public.

It is clear that any legislation regarding the Internet must not affect the infrastructure and current functioning of a medium that people have adopted as part of their everyday lives.

The power of corporations to determine the future of the world trade agreements must bow to the pressure of the consumers and users of the Internet.

Those who would protest against regulation and restriction of Internet trade must have the information to make an informed choice. Opening up the text of the Trans-Pacific Partnership Agreement for public scrutiny would save time as legislators would have real-time feedback from the people who can and who will speak up to stop lawmakers from passing an unfair trade agreement.

In this lawsuit, Oracle is charging that Google utilizes Java APIs in their Android operating system. Oracle is claiming that, even though the Java language is not copyrighted, the APIs are the protected property of Oracle. This charge brings into question the “copyrightability” of APIs. Oracle claims that Google Android’s use of Java APIs is an infringement on the copyright of Oracle’s APIs. Google argues that APIs, like various programming languages, may not be copyrighted.

Two questions arise from this copyright lawsuit. The first question “Can the Java APIs be copyrighted in the first place. In other words, are APIs in general copyrightable?” The second question is “Did Google infringe on Oracle’s ownership of the APIs by using the code without express permission?” Judge Alsup could possibly consider a partial verdict in the case that would not require him to rule on copyrightability of APIs.

Oracle originally asked for $1 billion in damages, but later disclosed that losses would amount to less than $100 million. The jury is in disagreement over one issue that is expected to be resolved to a unanimous verdict. The jury meets again on Monday to further deliberate.

Many experts are in disagreement about Oracle’s claim of ownership and copyright over the Java APIs. The APIs are made freely available to programmers who use the code to quickly enhance functionality in their own applications. Google utilizes several of these pre-written code APIs in the Android operating system. Oracle is essentially claiming that Google did not obtain permission to use the APIs. The search engine giant claims that use of the APIs is covered under the Fair Use licensing of open source software. A finding that APIs are copyrightable changes the fundamental landscape of what is freely available as open source software. The ruling will be a substantial one, should the Judge decide to rule on the issue. Judge Alsup stated earlier in the trial that he may rule on the copyrightability issue, but later indicated that a partial verdict is also possible.

A partial decision could be reached. Either the decision could come down that no judgment is made with regards to the copyrightability of APIs, while Google is found to have infringed specifically on Oracle’s copyright. A partial decision could potentially hurt Google’s standing in the patent litigation, which is forthcoming. Google’s attorneys are opposed to a partial decision.

A similar case was recently resolved in Europe. On Thursday, May 3, 2012, in the case of SAS Institute versus World Programming Ltd., the court found that neither functionality of an application, nor the format of data files is enough to elicit copyright protection. Though the case differs in some aspects, the court’s ruling favors the fair use licensing agreement for open source programming languages.

Deliberations will continue on Monday, May 7, 2012. The jury is expected to resolve the one outstanding issue and reach a unanimous decision. Should the APIs be found to be copyrightable, and Oracle owns the copyrights on the programs, the charge against Google for infringement by using the APIs in the Android operating system will be founded and Google will lose the case.

The API copyrightability issue may be kicked down the road for a decision to be made at a later time. However, if the court rules similarly to the European case, they may find that APIs are not copyrightable and therefore Oracle cannot own rights to the APIs. Google would be off the hook and may continue to use the APIs in their operating systems.

Sources indicate that the jury seems to be leaning toward the finding that Google is guilty of copyright infringement. With the Judge’s indication on Friday that he would accept a partial verdict, Google may be required to pay Oracle damages for the use of the API code.

source: http://www.informationweek.com/news/development/java/232901481

What And Who Does OCILLA Protect?

OCILLA allows copyright holders to ask online service providers (OSPs) to remove all access to copyright infringed material available through their platform — including any material available via an Internet Service Provider (ISP). This provision applies to OSPs located in the United States, but many foreign OSPs do grant the requests to avoid potential litigation in US courts.

In exchange for removing the material, the OSP receives liability protection. They also are required to follow certain procedures for removing and restoring the material. The safe harbor provided under OCILLA protects against infringement claims and “duplicates the protection against copyright infringement liability provided by the Communication Decency Act.”

OCILLA Take Down Procedures Explained

The “take down” and “put back” provisions of the law are fairly straightforward. For example, John Doe places a story on his home page that he finds interesting. The author, while doing a random Internet search, discovers the story on Mr. Doe’s page. The author deems this a copyright infringement since he/she did not give Mr. Doe permission to publish the story on his web page. The author then sends a letter to the OSPs designated agent (i.e., an Internet copyright lawyer) with information pertaining to the post. The letter must include their contact information and a statement declaring a “good faith belief” that the material was not posted legally. They must also affirm that “under penalty of perjury,” the author can act as the copyright holder.

In response to the letter, the OSP must expeditiously remove the article from the site. While there is no hard and fast definition of “expeditious,” it is generally accepted that one business day suffices. Once the OSP removes the article, they notify Mr. Doe that the article has been removed because of potential copyright infringement. At this point, Mr. Doe can either accept the OSPs decision or he can send a letter protesting the removal. Mr. Doe must include a statement that “under penalty of perjury” he was acting under a good faith belief that the article was taken down in error. Mr. Doe must also state that he consents to the jurisdiction of the US Federal District Court in his area over the matter.

Upon receiving Mr. Doe’s letter, the OSP is required to wait ten business days in order for the author to have ample time to file a copyright infringement lawsuit in the US Federal District Court. If the author chooses not to file suit, the OSP can then repost the article without fear of being sued by the author.

OCILLA Safe Harbor Stipulation

In order for the OSP to be covered by the safe harbor provision, the OSP must not have any actual knowledge that the material infringes on a copyright. They must also be unaware of any facts or circumstances that would make such infringement apparent. In addition, the OSP can receive no financial gain as a direct result of the infringement activity.

OCILLA Designated Agent Stipulation (Internet Copyright Lawyers Needed)

The OSP must name a Designated Agent and file this with the US Copyright Office. The Designated Agent receives all notices of alleged infringement (or takedown notices), and has the responsibility for responding to these notices. Once the Agent responds, the OSP is considered to have “actual knowledge” of the alleged infringement and must “take down” the information.

OSPs must publicly identify a dedicated agent — usually the name and contact information of a copyright infringement lawyer –  on their website and make a reasonable attempt to inform subscribers of the policy under which their accounts can be terminated due to repeated infringement violations (512(i)(1)(A)). The OSP must also make accommodations and not interfere with customary measures used to “identify and protect copyrighted work (512(i)(1)(B)).”

“Why is Cybersquatting a Impending danger to Valid Trademarks?”

Domain names with a prominent name, brand or trademark in their address have turned out to be very valuable. Trademark owners have invested their time, energy and capital in establishing the standing of their “brands.” When clients are misdirected to an invalid domain address, many negative consequences can result, including confusion, loss of goodwill and dilution of revenue.

Derogatory information can hurt the reputation of the trademark owner. Invalid domains siphon off Net traffic that could have gone to the valid site. Pay-per-click advertising has allowed cybersquatters to profit from someone else’s onerous work.

“Proving Invalid Use of Domain Name”

Trademark owners must prove that they have registration and usage of the famous brand under the Lanham Act. Next, they must prove that someone else has registration and commercial utilization of a domain name that is comparable to their trademark.

The last hurdle is “bad faith” – the cybersquatter must have “known” of the popular trademark and sought to profit from infringing upon someone else’s brand. This “commercial” element is important for infringement and dilution charges.

If the trademark owner can’t prove all of these points, then the defendant wins the case.

“Legitimate Cybersquatting”

When a cybersquatter has a valid use for a domain name that he has registered, then he has the right to that site. If a woman is named Brenda Coke, she has the right to use her name for a domain name.

Because the Internet is worldwide, jurisdiction can be a problem. Kevin Spacey lost his initial claim because he didn’t file his claim with the proper court. Internet laws vary by country.

Some companies are not as famous as they wish they were. “Bad faith” is necessary for liability. If someone didn’t know of the brand, then bad faith can’t be proven.  It is important to hire an internet attorney to help you with your internet copyright needs.