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When Free Speech and Foreign IP Law Collide
segphault writes "Ars Technica has an interesting look at a recent intellectual property case where foreign copyright law conflicts with American freedom of speech rights. In this particular case, Sarl Louis Feraud International v. Viewfinder Inc., American enforcement of the French court's judgement on the basis of comity could establish a dangerous legal precedent that could lead to extensive censorship of the Internet. The article includes analysis of a relevant friend of the court brief filed by the EFF."
So what percentage of this one did Ars Technica plagiarize from wikipedia?
Push Button, Receive Bacon
Does this mean that if I read out copies of Harry Potter over the radio (someone was sued for doing that some years ago), it's within my rights, since I have a right to free speech?
Don't jump to conclusions about this just because this is about France! This isn't really about free speech, it's about definitions of intellectual property. Under French law, fashion designs are considered to be protected intellectual property, but not under American law.
Personally, given the current intellectual property landscape, I don't think the French case is unreasonable - no less unreasonable than much of the intellectual property law the USA is trying to force the rest of the world to agree to.
American copyright conflicting with foreign freedom of speech laws? That's happened too.
For instance in the Zenon Panoussis case, where the US government officially lobbied Sweden to amend their constitution just to protect some copyrighted Scientology documents.
Under the current legal system, no. Harry Potter falls clearly under US copyright law, and the radio reading would be considered a public performance. (My thoughts on how that -should- be are not really on-topic here.)
It does mean that if you put up a website with information a foreign government finds objectionable, they cannot stop you unless what you're doing would also be illegal under US law. This is where the right to free speech is implicated-since websites are by definition viewable worldwide, if it's decided here that foreign judgments are applicable against US site owners, the most repressive governments in the world could submit a judgment against a US site owner, pass it along, and force them to shut down their website exposing, say, the atrocities that government has committed (since of course it is illegal to do so in many countries.) The French would raise hell if we tried to exercise a US law against a French citizen, and rightfully so. Similarly, French law does not and should not apply to those outside France's borders.
To fight the war on terror, stop being afraid.
Apparently you cannot take and publish a picture you take of certain Chicago buildings either because the designers of the buildings have a copyright on the design. So the French law is not that crazy compared to Amerikan Copyright law. http://www.boingboing.net/2005/02/06/chicagos_publ ic_scul.html
any opinion, or law, has no validity, unless it can also be enforced
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
does any one else think that the EFF has kinda fell off to a degree, or am I just looking in the wrong place.
http://www.pspbrew.com
Free speech? In the USA? You're kidding me right? You must be thinking about some other place.
Let's consider these points:
1.From TFA: " Viewfinder took numerous photographs at a fashion show..." one would imagine the show was in France, and local laws would apply.
2. Just because the server is hosted elsewhere... should not mean the laws of the 'hosting' nation should apply.
3. In case the 'server' is violating local laws of the 'source' of material hosted, the server ought to make the content invisible in source nation.
4. It should not be the job of the aggreived party to foot the bill for the arrangements in 3.
Actually, this case seems another reason why an international entity like the UN needs to regulate the internet. One suspects the responses would be stronger if the opposite had happened... would the EFF defend other nation's rights?
If you keep throwing chairs, one day you'll break windows....
How wonderful this situation is:
Either the americanos accept, that treaties work both way and they will have to accept foreign rulings. If this happens often enough, smart companies will set up in countries with favourable laws and get athe rulings they like without the american justice being able to say much about it.
Or they refuse to honour those international treaties America forced down everybody's throat to allow american corporations to circumvent local laws. In this case, even better and Disney and its henchmen will have a harder time suing foreign grannies for dowloading movies.
In any case, the fallout will be interesting.
And what about this ominous free speech all those americanos seem to be so hang up upon? Well, good riddance to that travesty of a human right. Everytime a fat american doesn't like it to be told to shut up, he comes with the free speech mace to club all opposition into submission. Why else do you think the USA rank only on place 22 in the Freedom of the press index while most European countries with a much saner approach to personal freedoms come first. Even Canada is ranked before the USA.
You have a right to free speech, but that's not your speech.
It's official. Most of you are morons.
Freedom of speech is a guaranteed as one of the fundamental rights of the constitution of the United States, but international IP law is by definition a treaty, which becomes the binding law of the land as well. I would think that the constitutional protections should have precedent, especially since that is the guarantor of the status of treaties in the republic. This sounds like an excellent Supreme Court case in the making.
'The plaintiff protested the ruling, arguing that publication of the photographs doesn't "possess sufficient communicative elements to bring the First Amendment in to play."'
Maybe there wasn't enough detail to constitute a violation of copyright either.
Actually, this is a place where the copyright law is severely defective and needs to be fixed. If I'm a videographer doing an interview with someone and there is music playing in the background, the people who own the copyrights to the music can prevent me from using the interview without paying them $10,000.
Reporters should have the right to report. The fact that someone's copyrighted work is embedded in the report shouldn't prevent the report from reaching the public.
When Free Speech and Foreign IP Law Collide ...something like SCO remains a US phenomenon...
"...where people like to shit on each other"
(SouthPark 10x04)
No seriously, Free speech is great - after you made sure you have no TV and no Radio.
Just how many nations are bullied by the US into accepting their copyright laws and current view on media copyright (i.e. the Mickey Mouse laws). It is only just that the US suffer a bit from this legal shit, ain't it?
I know a picture is worth a thousand words, but is it really speech? Well if it's OK, can I post any picture on my website? For the sake of free speech. Let's say, pictures I took in a theater (so I have the copyright on the pictures themselves). Let's say a screener without the sound. Isn't the video part of a screener just tons of pictures taken of copyrighted work?
:)
Well I guess the problem is the difference in what is considered "copyrighted" work. Then, it's not a matter of free speech anymore. Either the court decides to adhere to the principle of comity the article speaks of, or decides that since fashion designs aren't "copyrightable" in the US, the french ruling shouldn't be applied.
The true problem here is the EFF (which I usually support) who's doing too much and jumps on the gun whenever they feel someone's trying to mess with the first amendment when the matter isn't really the first amendment. However, when courts have no problem telling us that blogging isn't journalism and don't fall under the First Amendment (e.g, the ThinkSecret lawsuit), I don't see how one can argue that posting a picture falls under it, no matter what's on it. Well the EFF has battled for the blogging case too, so I guess they're just being themselves
As for the matter of the ruling itself, who cares?
Let's see. One is a constitutional right. One is a simple law.
At least in our country, a "constitutional" law (we don't have a constitution, but something similar) kicks a simple law's nuts any day. Worse, it has the power to nullify the "weaker" law, actually wiping it out of existance if the ordinary law contradicts it.
How 'bout in the US? Can a law survive that contradicts the constitution?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
From wikipedia :
In his defense, Panoussis invoked a Swedish Constitutional Right known as offentlighetsprincipen. This is a provision of the Swedish Constitution that guarantees access to public documents in order to prevent corruption and fraud, and it is considered a basic civil right in Sweden. Panoussis turned over a copy of the NOT documents to the office of the Swedish Parliament and, by law, copies of the documents were available for anyone from the public to see, at any time he or she wished They really put some thought behind this Right , and this was exactly what the people that wrote it had in mind . Copyrighting the NOT (New Era Dianetics for Operating Thetans)document and forbidding it from being published holds little difference from copyrighting a Nigerian scam letter in order to prevent the public from knowing about the scam .
My Starcraft 2 Blog
Many of these pictures even show other people photographing the sculpture, hehe.
If indeed it's forbidden to photograph that huge hunk of metal, that's one heck of a toothless law if I ever saw one ;)
The american way is to enforce their intellectual property rights world wide via WIPO.
Now you americans don't like it?
Please tell me why other countries have to like it?
BTW: "intellectual property" is an other word for "brain fart"
Grundgesetz * 23. Mai 1949 - 30. November 2007 - http://www.vorratsdatenspeicherung.de/
Another point of view. Censorship in action ...Suppose a US citizen works for a firearms manufacturer in the US, making guns. One of those guns turns up here in Amsterdam and is used to commit a crime. This person takes a holiday over here in Europe, and is arrested for violating the Dutch firearms laws because he helped manufacture the gun in the US...
you have not read teh berne convention have you?
http://en.wikipedia.org/wiki/Berne_convention
OMG Ponies!!! with Glitter!!!! I miss Pink
And if they let crackpot nations like China and Saudi Arabia get in on the act, you can kiss your porn goodbye.
No. The Constitution is Supreme. What they're really deciding in this case is if the photographs constitute "fair use" and if they do, then it's free speech and it's legal to host them in the US and no one will care. But if those photos aren't fair use, perhaps they must create their own sketches of the garments in the photos, then they're infrininging on another entities copyright which is protected in the United States. Things proceed normally according to the law of the land. The invoking of the First Amendment is just to get attention (effective!) as well as sympathy, allies and support (mission accomplished).
it seems to me that the U.S. do not need the help of any foreign countries to pass laws that restrict freedom.
Take a look at what did Bush's administration
Unfortunately, this is not as simple as that. There are many cases where such geographical separation does not work and where both laws collide, where precedence of one law above the other are/should be enforced: children care in case of divorce between binational couples, heritages, fiscal matters for companies, etc... This is one case in the grey area of "international law". The right of the sea is in very murky waters too...
I am not Remy Mouton, unfortunately: http://remy.mouton.free.fr/art/
You forget that the owners of those websites paid money to the creator of the sculpture in order to obtain the rights to publish those photos. Had they not, they would have been rightly sued by the sculptures creator. (and very likely have lost - barring sites that host outside the US)
Stupid is as stupid dies.
Wouldn't it be much easier if French IP laws were applicable only in France?
The same way as it is for Real Stuff: If you want to keep something out, keep it out. This is clearly not the responsability of the US. It's the responsability of France to block this site at the border, if they think it's illegal. This would be totally within their rights. If they choose not to do that, well they really have no point bitching about it in the US.
Just my 2(euro)cts..
One of Australia's fair dealing provisions is reporting the news. In your scenario, if the music was picked up by the camera during an interview, thats 'reporting' the news, as much as having a poster or some other copyrighted material in the background of the person being interviewed. By the same token, if the subject matter *is* music, i.e. a music festival, then the reporter has a right to use it as part of their report.
There are limits on how much, and news-worthiness.
But if a reporter has added music to the report, for no other reason than background noise or ambiance, then thats a breach of copyright as its not the *news* per se.
Anyone got any idea about fair use/dealing provisions in US copyright law?
It seems to me that this is more a case of "imagine a foreign law could exist that would possibly affect a US company !!" As mentioned in other comments, there are enough cases of the inverse.
Sig (appended to the end of comments I post, 120 chars)
By your reasoning you could just as easily say an internationally accessible server with web sites about democracy should be subject to Chinese censorship laws even if the server is physically in America and operated by an American company.
I seem to remember having read about this sort of a dilemma before concerning jurisdiction in a libel case. If I remember correctly that case ended up in a debate about how you define the concept of 'publishing' vis-a-vis the Internet. Going by the result in that case the act of uploading the material to the server where it was displayed to the public via a web server constituted an act of 'publishing'. So due to the physical location of this server the material was published in the USA and US law applies. In view of this, if the USA doesn't define fashion designs as IP, then these guys are shit out of luck no matter what French law stipulates. The only thing the French can really can hope for is to achieve some sort of an internet equivalent to recalling or banning the import of a certain issue of a foreign printed paper magazine. They could possibly hope to succeed in compelling this party to deny access to the disputed material on their site from IP numbers located in France and even that would presumably have to be implemented via systems on French soil. That being said what Viewfinder did may be legal but they are really shooting them selves in the foot since this isn't exactly a good way to make friends in the fashion industry any more than if, say, an automobile magazine was to publish unauthorized pictures of a new prototype sports car. The result is that you get universally shut out of the loop and ignored by the industry. Publications like this are considered analogous to those trash papers and magazines who publish paparazzi pictures of celebrities.
Only to idiots, are orders laws.
-- Henning von Tresckow
I highly doubt that the wikipedia would pay money to publish this photo. At least there's no mention about any such fee paid on the photo page. And the "creative commons" license refers to the copyright of the photo, not of the sculpture.
Also, Flickr has many of these too, and I somehow doubt that Flickr would pay the sculpture's creator (or coerce the uploaders of such photos to pay the sculpture's creator).
Oh, and here some enterprising photographer has found a way to violate two copyright's in one go, the sculptor's and the painter's, hehe ;)
When we can finally agree that someone's emotions are not protected by law, then we have a great start. All of these laws that raise religion, culture, or reputation over the free expression of thought are harmful and should be avoided at all costs, and their proponents be shunned from human society. The middle ages are over, and so are the 60's. Peace comes when people can speak freely and as equals, not when imposed by a government. Look what happened when General Tito died, and all of that pent-up hatred was released.
Interresting story:
The Swedish National Radio Broadcaster P3 (Sveriges Radio P3) was in a conflict with the publisher of Harry Potter, and all staff was strictly told not to mention any parts of the new book in any way what so ever in the radio.
As usual when people are told not to do certain things, they promptly decided it must be done.
So they phoned the publisher and claimed they had spilled coffee over the first page in the book. This spilling act meant that the broadcasters daughter had become very sad since she couldn't hear the story from the very beginning of the book, and thus asked the publisher to read them out loud. This was obviously recorded and later broadcasted all over Sweden.
Priceless.
PS mind my english.
Except the point of the article is that fashons are NOT copywritable in the US.
Stupid is as stupid dies.
Similarly, French law does not and should not apply to those outside France's borders.
I'm really not worried about the French coming to get me, but I would be concerned if I was planning on traveling to France and didn't know my site would get me in trouble there.
"Only one thing, is impossible for god: to find any sense in any copyright law on the planet." Mark Twain
That's more flexible. A court might buy the argument that a fashion is a sculpture in fabric. It'd have to be the supreme court, but stranger shit has happened. Of course there's still the argument over whether Veiwfinder is "press" and they probably are. Hell "a limited time" is longer than the span of a human life under copyright law. Never underestimate the willingness of lawyers to stretch symantics past all useful understanding.
The French would raise hell if we tried to exercise a US law against a French citizen, and rightfully so. Similarly, French law does not and should not apply to those outside France's borders
Correct me if I'm wrong - but isn't this the other side of the coin that everybody got so pissy about just a few weeks ago, when yahoo co-operated with the Chinese government regarding activities taking place in China?
The US government has historically tried to use laws regarding the behaviour of FOREIGN companies (owned wholey or partially by American companies) to extend it's foreign policy abroad.
I can't remember the number of times the American government has passed laws like that to try to affect the behaviour of CANADIAN companies who have the *temerity* to try to do business with Cuba, for example.
That being said, inter-governmental agreements and/or treaties between governements agreeing to respect each other's laws in specific areas is no more an abridgement of free speech than *american* copyright laws are.
That's the impression I got.
Stupid is as stupid dies.
Can I say auction of nazi memorabelia made available to french citizen ?
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
Then the "Fair Use Doctorine" might give you an affirmitive defence against a charge of copyright infringement. However, the nature of the infringement, the nature of the photos you used, and the purpose to which they were used would all need to be evaluated during the proceedings to determine if your use of the photos was in fact, "Fair Use" or whether they did infringe.
"Fair Use" isn't a get out of jail free card, it is evaluated on a case-by-case basis as a defence against a charge of copyright infringement.
Italy wanted a show trial for "justice". The US refused to allow it and militarily always has, both on foreign turf and at home. US civilian courts cannot try military cases. And te US extends the same privilege to the militaries of other countries. This policy has been recently abused to prevent foreigners designated "soldiers" from any access to civilian courts for but the general policy is sound.
The only thing Capt. Ashby (and his navigator, Capt. Schweitzer) are guilty of is obstruction of justice for the disappearance of the video tape. Why did they ditch it? Probably because of the barrel rolls that Ashby did -- not dangerous in themselves nor in any way the cause of the mishap but banned by the US Air Force as dangerous and unnecesasry manoeuvres except during a dogfight or practice for one. They probably also bad-mouthed a few colonels or generals. An obstruction of justice charge beats the hell out of a Court Martial for showing disrespect for superior officers.
woof.
Interesting.. This US citizen's right to free speech outweighs the commercial rights of the foreign plaintiff in this case, but Jon Lech Johansen's right to free expression should be subordinate to the needs of the DVD Copy Control Association..
See how it works in this case : fashion design is protected by WIPO ; but the scope of protection in the actual laws of various states bound by WIPO differs. The aim of WIPO is to enforce the harshest possible IP protection, so states are required to cross-apply judgements from other members of the treaty. Here, the USA say : "oh well, we don't like it, but ya know, it's good for economy so, what's a constitutional amendement between friends ?". Take other matters (DMCA), and see how it's reversed : we french had an exception of copyright comparable to fair use, called "exception de copie privée" by wich anybody was entitled to make any number of copies from any copyrighted work he may came by, restricted to his home use. This exception was wiped away and now is much closer aligned on your US fair use.
My point is that the problem isn't in the "OMG LOOK HOW THOSE ALIENS ARE TAKING OUR GOD GIVEN RIGHTS FROM US !!!", but in the uncontroled discussion, adoption, transposition and enforcement of WIPO upon citizens of the world without them having been informed of the consequences, and the political will to give industry an edge over the physical persons who should have decided because they are the citizens of the bound states, while corporations do not vote ! And WIPO is only one such treaty, among others.
If we do not put corporations under the law, soon, laws will be issued at an international level by the corporations and enforced on us. This is clearly not something we should be looking forward.
"And what about this ominous free speech all those americanos seem to be so hang up upon? Well, good riddance to that travesty of a human right."
What idiots modded THIS up?
What the hell is wrong with you people that you AGREE with garbage like this?
"The government grants you rights, not the other way around."-- beav007. Yes, these people really exist...
If cameras were allowed at this fashion show (and I can't imagine one where they wouldn't be), then it is reasonable to expect that the images will be distributed in some way. If this distribution is something that you would like to restrict, then why not print these restrictions on the back of the admission ticket? It seems much easier (and cheaper) than running to your lawyer...
I haven't got my login info at work, so you will have to make do with an anonymous answer. I am not the original poster, just a guy reading /. at work.
You have not read your own link have you? This is a quote from the wikipedia page you linked to:
"[...] which means that, for instance, French copyright law applies to anything published or performed in France, regardless of where it was originally created."
I assume that the opposite is also true.
No dichotomy there. If the officers and decision-makers are citizens of or visitors to the US, they should be every bit subject to US law. If those in charge of Yahoo come to the US, they can and should be arrested for crimes against humanity.
Same thing here. If this guy wants to visit France again, they'd be well within their rights to deny his entry until he pays the outstanding judgment. But if he -doesn't-, they're not within their rights to enforce their law over here. Same thing there-if the Yahoo officers with veto power (and spawning off a "subsidiary" is meaningless) live here, they should be held fully accountable for their actions-under US law, -where they reside-.
To fight the war on terror, stop being afraid.
This isn't always the case. In the UK, there is a law that allows the UK legal system to prosecute people for certain offences committed abroad. It's aimed at child molesters and other sexual offenders.
Any such person cannot be tried in a foreign court, but they can be arrested etc the moment they land on UK soil even if the entire crime took place on the other side of the world.
bang goes my karma... again...
"In the present case, it's not as if the infringer had published the cut-out pattern (or whatever) used to make those garments, they just published photos of people wearing them."
For the average ameteur sewing one or two pieces of clothing each year for their child, a photo is probably not enough.
For my wife - a skilled, trained and experienced professional - a photo is enough to duplicate a piece of clothing. More than once she's seen something in a store or a catalog and made one for one of our daughters, usually without even making a pattern first. (She thinks that patterns are a waste of time, since she doesn't like making the same thing more than once.)
Exam 4/C again. Maybe I'll do better this time.
http://www.law.duke.edu/cspd/comics/
Three law professors have created a comic book that does a good job of describing fair use as it applies to documentary film makers. It's much more entertaining than some of the other, much drier sources out there. The book itself has many examples of the fair use of copyright and trademark materials.
One of the problems is that, even if you completely comply with the law, distributors may not take your work because they are afraid of being sued. We have a culture of entitlement over here and people are more than willing to enter the lawsuit lottery. Sometimes it pays off big. (RIM was just forced to pay more than half a billion for infringing invalid patents.) The net result is that people will bend over backwards to avoid even the fair use of copyrighted material.
did microsoft not force websites to remove screenshots of vista, did apple not force websites to remove pictures of their unreleased products. It happens all the time here in the states. Why is this case so different?
You're ignoring (intentionally?) my point. It is not a claim that the guy should be charged with "crimes against humanity" in the USA. We're not talking about criminal law here.
.... "we'll respect your copyrights in our country, if you respect ours in yours". That's it. That's all. There's nothing criminal, there's nothing about freedom of speech, nowhere.
We're talking about treaties, freely entered into by all countries involved, designed to encourage & facilitate commerce between economies.
Most favored nation trading status in the USA - "we won't charge you duties on this stuff and you won't charge us duties on THAT stuff". It's a reciprocal agreement, and good for business for both parties.
NAFTA - same thing. You may agree with it or not, but that's why it's there, and that's the intention.
And then *this* case
In practice, what you're talking about is a technical difference in what is considered to be copyrightable in France as opposted to in the United States. There are examples, I'm sure, of the reverse, but that's beside the point. If an American copyright holder in one of those areas was having his American IP rights violated in France, he would be just as capable of suing and gaining satisfaction.
You cannot claim that it goes against free speech unless you're willing to say that all copyright is a violation of free speech.
You may, in fact, think that - and it's certainly your right to have that opinion. But given that that Supreme Court has yet to strike down copyright in general, they have no basis to to rule that a reciprocal agreement between two soverign nations violates free speech any more than the domestic equivalent.
Excellent point... Dmitry Sklyarov, anyone? But this has to already exist in some capacity. My pro-Nazi website (it's a hypothetical, people) may land me in trouble when I travel over to Germany I would think...
Excuse my speling.
Making The Bar Project
Ok, in that case, I think the IP of clothing designers is really unprotectable. What when those clothes hit the stores, are bought and worn by many people, which appear as the subject or even as innocent bystanders in many tourist's photos?
Oh, and a really competent software engineer can create an app that acts similarly by reading a magazine description of it and see a couple of screenshots.
In every battle, overwhelming effect (strength and/or boldness and/or speed and/or surprise) wins.
Right now, pro I"P" side has overwhwlming power of money and media (they for most part ARE media) on its side, while pro freedom side doesn't have even a wide recognition among the masses (which would be significant, but utterly insufficient).
To crush the I"P" law, someone (actually, a lot of them) with great but unsatisfactory power has to profit big P without "" from that change, otherwise we can whine all day long about injustice and lack of freedom. Whenever you feel like revolution, remember that it always has its price: the rise of some new kind of tyrants (with hope that one day after transition period they'll firmly hold each others' throats, giving us little ones a breathing space). Anti-monarchistic revolutions of 18th century were pulled by masses, but those masses were organised by people with personal agendas, people whose striving for power was blocked near the top by artificial barriers of the system of their time. Likewise, communist revolutions benefited the communists themself in the first place. Every gratitude payed to masses for their spilled blood in form of new freedoms and equalities are quietly and stepwise taken away as time passes.
Nevertheless, my friend, probably not in your lifetime, IP laws will first get worse to the point where there will be a social layer of somewhat wealthy, but held-down upstarts who will be opressed by perpetuated "IP gentry" (aided by "lawyer clergy") and naturally, they will be willing to do something, to wake and move the masses. That will be the time when time is right. I can bet it won't pass without spilling blood, as none neither gives up nor gains privilleges without it. Our time will be regarded as time of sowing, of philosophers who first criticized injustice of I"P". Well, what awaits beyond... is hard to predict and if history teaches us anything, perhaps disappointing. New elite will probably establish new taboos and many of those who create I"P" will feel injustice of beeing ripped off daily (the seed of next after next revolution?). The face of business will change - not that many litigations any more, but much harsher security, secrecy and novel ways to ensure them. The face of entertainment will change - live shows only, with much higher admitance price for famous ones, but also many more entertainers and unique programms then today - after the age of prevalence of peasants, age of prevalence of factory workers, age of prevalence of office workers, perhaps we are approaching age of prevalence of entertainers?
Similarly, French law does not and should not apply to those outside France's borders.
Unfortunately, the U.S. government opened the door when it pursued the Skylarov case.
Sure I'm paranoid, but am I paranoid enough?
I for one welcome our new French Fasion Overlords.
Sorry
Similarly, French law does not and should not apply to those outside France's borders.
Did the photographs occur inside or outside of France? If inside France, then the laws of France probably are applicable here. Now the posting may not be the problem, but the pictures themselves may be (the fact that they were taken possibly in violation of French law).
Jim
What if you (or parent poster) weren't planning to travel to france, but rather the U.K. and due to circumstances beyond your control the plane landed in France (weather, bomb threat, etc). Now you get arrested and thrown in gaol.
By the way, that happens often enough for travelers not intended to stop over in the U.S. but who get directed there for other reasons.
Anyone who has delved into the copyright issues on Wikipedia is aware of the significant differences between US and foreign laws. The English Wikipedia tends to take the more liberal approach - there are a number of images which are included which are legal in the US but not legal in other countries (relying on fair use is the most common example, but there are many others including the French protections of fashion designs). A ruling against Viewfinder here would likely have a huge chilling effect on the encyclopedia, even if it were narrowly tailored to uses which lack "sufficient communicative elements".
Was anyone else expecting this thread to be about $cientology?
We're talking about treaties, freely entered into by all countries involved, designed to encourage & facilitate commerce between economies.
Treaties don't really come into play here, because the Berne Convention is not self-enacting.
If an American copyright holder in one of those areas was having his American IP rights violated in France, he would be just as capable of suing and gaining satisfaction.
No, you either misspoke or don't understand. Who the copyright holder is doesn't matter. What matters is where the alleged infringement takes place. When an American (or anyone) distributes copyrighted material in the US, they are under US law. When they distribute copyrighted material in France, they're under French law. Of course, getting a ruling in France based on French law for a US company with none of its assets in France, isn't very useful, unless you can convince a US court to enforce the ruling. Under the principle of comity, US courts will usually do this. Then, once the US court makes its ruling, it can be enforced, using injunctions, attachments, liens, and levies, if necessary.
You cannot claim that it goes against free speech unless you're willing to say that all copyright is a violation of free speech.
The claim is that a law granting copyright protection to fashion designs would be an unconstitutional violation of the First Amendment. That's not saying that all copyright protections are unconstitutional, only this one. It's essentially saying that copyright protections in the US have already been extended to their Constitutional limit, and argument I'd pretty much agree with.
I am not the parent poster. I am actually his boss, and I saw him reading /. at work. Rest assured, he is FIRED!
You think Germany's bad for a Nazi? Try travelling to Israel!
Does this mean that if I read out copies of Harry Potter over the radio (someone was sued for doing that some years ago), it's within my rights, since I have a right to free speech?
Free speech - sure. In the US the government can't exercise prior restraint.
Copyright violation - the owner of the work can sue you into oblivion - free speech has nothing to do with it, at least in the US.
I'm a consultant - I convert gibberish into cash-flow.
1. Wander the streets of New York, or Hong Kong, and you'll easily find lots of "knockoffs" that are copies of designer clothes. Hint: Don't imagine that your spiffy new duds by Georgio Armanie and Tommy Hilfinger are all that exciting.
Exam 4/C again. Maybe I'll do better this time.
Treaties don't really come into play here, because the Berne Convention is not self-enacting.
You're right there - no treaty has *any* affect untill it's been ratified by the signatory. But I'm willing to bet that the USA *has* ratified the Berne Conventions. Whether or not it's "self-enacting", as you say, doesn't seem to have a lot to do with anything, and does nothing to counter my arguments. If it's been signed, and ratified, whether or not it's "self-enacting" is moot.
Who the copyright holder is doesn't matter.
Agree
What matters is where the alleged infringement takes place.
Yes and No. It would be more correct to say here that what matters is where it takes place in a signatory country to the Berne (or other applicable) Conventions
When an American (or anyone) distributes copyrighted material in the US, they are under US law. When they distribute copyrighted material in France, they're under French law.
Agreed
Of course, getting a ruling in France based on French law for a US company with none of its assets in France, isn't very useful, unless you can convince a US court to enforce the ruling. Under the principle of comity, US courts will usually do this. Then, once the US court makes its ruling, it can be enforced, using injunctions, attachments, liens, and levies, if necessary.
Agreed - and this is where we part. When the USA signed the conventions (and any other aplicable treaties, they don't sign it and say "..... when it's convenient". A treaty is kind of an all or nothing deal - you agree to it, or you don't. That why you sigh and ratify them.
a) The USA has copyright laws that protect certain types of IP, and is a party to a treaty
b) France has copyright laws, very similar in detail & scope, that protects the same types of IP.
c) The Supremes have ruled in the past that copyright protection is constitutional
Whether or not fashion designs are considered to be copyrightable in France and not in the USA is (IMHO) a legal detail, and not something that the Supreme Count is going to be likely to consider to be any different from any other form of copyrightable artistic work.
Therefore:
Arguing that it's "freedom of speech" is bullshit, has no legal standing, and won't do anything other than slightly increasing the air temperature around the heads of the lawyers spouting this crap.
The courts may, in fact, find that it's unenforacable for some reason (fair use, maybe?) - who the hell knows. But I would bet you my mortage, my first born, AND my left testicle that "freedom of speech" has the square root of 0 chance of being the reason for it.
ok, now go stop world hunger and war ... right, i stand uncorrected
by validity, i am talking about making a difference in the world
saying "war is bad" is really nice, but it doesn't mean much. everyone thinks war is bad. everybody thinks hunger is bad
so fucking what?
what are you going to DO to stop it?
now we are talking: action speaks louder than words
if you think standing and saying "hunger is bad" is supposed to lend you validity and we're all supposed to clap and pat you on the back like you've discovered some amazinc concept we've never heard of, you have a problem: you live in an ivory tower
look out your ivory tower: there is humanity struggling in the mud. your words haven't made one tiny difference
in short, your words are invalid
there's no evil overlord standing there going "i love that everyone is starving!" or "yeah for war! it's a wonderful thing!"
but there IS a bunch of self-centered rich western children standing around patting each other on the back for saying the fucking obvious, and thinking that means they matter
no: you don't matter, and you matter even less for thinking saying the obvious is supposed to have value
what are you going to DO? then we're talking about validity
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I don't think the Berne convention is relevant here. It says that America must apply American copyright law to works even if they were authored in other nations, but American copyright law wouldn't hold the defendent guilty in this case.
The issue is comity, whereby a foreign judgement could be enforced here; and the question is whether the 1st ammendment should prevent that.
The key point seems to be the idea that our own Congress couldn't make it illegal for an American to do what the defendent did (because of the 1st Ammendment). But is that true? The U.S. Congress can indeed limit speech, as the "reading Harry Potter" example illustrates. Congress hasn't made a law that covers publishing fasion designs, and it probably won't, but are we sure it can't?
As for the "slipperly slope" argument: Even if comity is applied in this case, that doesn't equate to allowing a repressive regime to prevent an American site from publishing political dissent, because that is something our Congress clearly cannot impose on us.
Yet I find myself agreeing with the defendent's position. I suppose I think comity (at least as it's been explained here -- IANAL) is over-broad. If I do something here that's legal here, no other government should get a say in what happens. If I do something that would indeed be illegal here, then I can see applying a principle like comity.
If the French didn't want a U.S. company publishing these pictures, they should've prevented the pictures from being taken, or required an NDA of some sort...
"Either the americanos accept, that treaties work both way and they will have to accept foreign rulings."
That's pretty big talk from someone who normally takes care of "americanos" lawns during the day.
But no, really, just your sentence that I've quoted makes it clear you have no idea what the issue is here. It has nothing to do with treaties; it has everything to do with the definition of protected speech and how it differs between nations.
But expecting a gardner to understand is unreasonable on my part, so I'll refrain from telling you how stupid you sound.
...Bush (or any politico, really) sues in French court to block things posted by bloggers or whomever here in America? 30 seconds? 15?
... when they don't honor ours-- or our extradition treaty?
Gamingmuseum.com: Give your 3D accelerator a rest.
Is it possible for people in one country to publish what's legal for them to publish while preventing people in countries where it's not legal to consume it from doing so? Blocking entire countries by IP address would be pretty onerous, but perhaps a solution sort of like robots.txt would be reasonable. It would place the onus for obeying the law on the people whose law it was--those importing the restricted data--rather than on those publishing it somewhere where it's legal. The publisher would just be reponsible for updating their robots.txt-like-file when they became aware of issues.
Convert RSS to HTML - integrate webfeeds into your website
The court decided the case rightly. If it had been decided otherwise, the implications could extend beyond copyright law. Say you put a picture of Mohammad on your website. Because the site can be seen in Saudi Arabia, you've violated the laws of the Kingdom. Or say you publish a website in which you deny that the holocaust happened. Because your site can be viewed in Canada, the Canadian government could demand that the U.S. enforce their law on the matter. (It's illegal in Canada to state that the holocaust didn't happen.)
SARL is a French abbreviation denoting a corporation with limited capital, Societe Anonyme des Resources Limitees -- Anonymous Company with Limited Resources. Sorry for being off topic.
Our country is seriously fucked up if we can patent genes but not jeans.
...and France is just seriously fucked up. Period.
These photographs are not actual copying of the protected work, they are merely photographs taken at one event.
To insist that one cannot publish them is roughly equivalent to legally forbidding people to discuss a movie that they got to watch at a special "sneak preview". Hmmm... are movie critics illegal in France too (at least on opening day)?
File under 'M' for 'Manic ranting'
So, eventually, it'll be a moot point.
Those who fail to understand communication protocols, are doomed to repeat them over port 80.
If the argument is that it is not protected by the First Amendment because, "protection can be rescinded if the form of speech in question doesn't "convey a particularized message," or if the message conveyed isn't likely to be understood by the audience"
Then on that same argument it does not breach the intellectual property law because of that very same reason... didn't they just invalidate their entire case?
So are we just ignoring the fact that the US does this to other countries all the time? Or that even within the US we have the 'community standards' of the most backwards in-bred communities being applied to the broader internet?
We (the US) have consistently acted as though our viewpoint is the only valid viewpoint on the net. Another country does the exact same thing and we all start whining about free speech. I guess it's easy to see (or admit?) the totalitarianism when it comes from outside?
Gee, I haven't read the Berne Convention, although I love Robert Ludlam. [/Joke/]
> Enforcing the laws of a foreign nation should be impeachable as treason. Never mind "speech" issues.
> What about "survival"
Dude, you are a fucking idiot. We enforce foreign laws for the same reason they usually enforce ours, because otherwise the world would come to a big crashing stop. 90% of the time there isn't a problem because there isn't all that much difference between the basic laws governing Western Civilization and thankfully most cases that hit a US court involve another Western country. Murder is basically murder in any of them, fraud is fraud. Where things get tricky is the cases where the laws differ but that is why we have judges.
And now, just to be more ontopic, I'll say this case isn't going very far. Personally I'd settle it in ten minutes with a few pointed questions.
1. Mr. French lawyer, you assert the images shouldn't be protected as speech because they con't 'communicate.' Assuming I can swallow that, on what grounds to I disallow the site then, since they don't communicate they can't harm you, seeing as they can't communicate anything to your competitors.
2. Or we have the position of the website, that they are reporting on fashion trends, something that 'communicates' information, certainly looks like journalism and is therefore protected by the 1st. We kill millions of trees annually with print publications devoted to the subject of fashion so it certainly doesn't sound like they are doing anything new except publishing online. So Mr. French lawyer, care to poke holes in that logic?
Or perhaps you have a new and improved argument you would like to try? Didn't think so, case dismissed.
Democrat delenda est
designs of vessels:
http://www.copyright.gov/vessels/list/index.html
http://www.copyright.gov/vessels/
Vessel Hull Design Protection Act: Overview and Analysis:
http://www.copyright.gov/reports/vhdpa-report.pdf
It's interesting that some of the most obvious things about boats and small craft can be "registered and protected". **Seems** like the LibCong is/could be headed the same way the USPTO...
Seems that if you design and sell or display a "boat" SOMEbody can sue you for even common, prior-art stuff. Somewhat to its credit, though, the boating industry doesn't want to see a series of expensive and industry-crippling lawsuits rising up. But, at the same time, I find it a bit disturbing that many of the boats depicted are not unique, special, innovative, or the like.
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
I gues we better outlaw anyone buying such protected clothes then, since if they did, they might be able to copy them. In fact we should outlaw even making any designer clothing because someone might see it and dublicate it, and we can't have that. I wonder what the designer would then be happy, he might be starving but his precious intellectual property is locked safely inside his head :).
Hmm... RIAA, MPAA and GNAA, I think you would be excellent next beneficiaries of this policy >:]. Simply outlaw making music or movies that can't be freely shared, then they can't be pirated anymore, and the problem is solved.
Forget magic. Any technology distinguishable from divine power is insufficiently advanced.
simple example. I say on my websight. "communism is bad". China declares me to be insighting a riot and engaging in terroristic activities. Finds me guilty in court and tries to shut down my web site. same genral thing going on here. stupid that the courts even looked at it. The FBI should have been smarter.
âoeTolerance applies only to persons, but never to truth. Intolerance applies only to truth, but never to persons.
Actually, you're an idiot, while the previous poster was right on target.
A self-enacting treaty is one that becomes law upon ratification. If a treaty is not self-enacting, then the local legislature simply has an obligation to enact the appropriate laws so that the treaty is complied with. If they don't, they may not be in compliance with the treaty, but the treaty doesn't help anyone in that country.
Berne is not a self-enacting treaty. It has no legal force or authority in the United States. If you try to sue someone for violating your rights under Berne, you will simply be laughed out of court, because you have no case. The only copyright law in force here is that written and enacted by our own government. Berne may provide us with a set of (immensely awful) standards to meet, but that's basically all it does. To anyone other than Congress, it's basically irrelevant.
Congress was even quite clear on this issue, having written the following at 17 USC 104(c):
When the USA signed the conventions (and any other aplicable treaties, they don't sign it and say "..... when it's convenient".
Actually, that happens all the time, with lots of treaties. It isn't at all uncommon to see treaties entered into with various reservations and conditions tacked on.
Whether or not fashion designs are considered to be copyrightable in France and not in the USA is (IMHO) a legal detail, and not something that the Supreme Count is going to be likely to consider to be any different from any other form of copyrightable artistic work.
No. It's at the heart of the matter. Congress has said that these sorts of works are not copyrightable. This means that here, they are in the public domain. And if someone wants to publish them, in the total absence of any copyright issue (since there is no US copyright), it's entirely a free speech issue.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The US constitution explicitly allows free speech to be limited by copyright restrictions, if I remember correctly. So I don't see how it can be used to trump a copyright law.
The French would raise hell if we tried to exercise a US law against a French citizen, and rightfully so. Similarly, French law does not and should not apply to those outside France's borders.
Interesting point, too bad the US Government doesn't play that way. Are you aware that there are Canadian businessmen that are forbidden from entering the US? Why? Because they do business in Cuba. That is their only offense. They do business with a country the US doesn't like, so they are prevented from entering the US. How is that right?
Oh, and what about all this RIAA and DMCA crap? Did the US not flex its political muscle to have "DVD Jon" arrested for breaking US copyright law?
Did you also know that Canadians pay a levy on all blank media (CDs) that they buy? The reason, so that they can legally copy songs from a music CD to a blank CD. But the US enforced copyright and security measures attempt to prevent that. Something that is completely legal in Canada and again the US is trying to protect its "intellectual property".
So why shouldn't France and companies in France be allowed to protect their intellectual property?
Uhhh, or states like Tennessee, who extradited and prosecuted two people from California for sending porn over the telephone lines (BBS days) as part of a pay service.
> The claim is that a law granting copyright protection to fashion designs would be an
> unconstitutional violation of the First Amendment. That's not saying that all copyright
> protections are unconstitutional, only this one. It's essentially saying that copyright
> protections in the US have already been extended to their Constitutional limit, and argument
> I'd pretty much agree with.
What if it was Constitutional? What if Congress could allow dress design copyrights (or patents or trademarks or servicemarks or whatever, "look" of packaging is something-rightable, I believe) but simply chose not to (or never considered it)? Then what?
I'd argue that this cannot be allowed to stand because Congress, and the Constitution, cannot reasonably expect American citizens to be aware of every law all over the world that might fall under this umbrella. Cities are supposed to post local Bizarro-world parking laws on every street that enters the city so people can't claim they never knew about it as it's unreasonable to expect people to know every strange driving law in every community they drive through. This is that, multiplied by every government at every level around the world, and applies while "driving in your own city, so to speak.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
> They do business with a country the US doesn't like, so they are prevented
> from entering the US. How is that right?
The US has its foreign policy agenda, whether you like it or not. Among other things, it allows Cubans in the US, who have had their property, ummmm, "taken for the betterment of The People" to sue companies that do business in the US and in Cuba for financial loss.
I have no problem with that. If you're a big business, and the business in Cuba is as important as the business in the US, you'd better be prepared to treat that as a cost of doing business. This doesn't apply to US businesses since they're flat-out banned from Cuba.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
If all they were doing was reading the first page, or even the first few pages, I doubt that would have been a problem. Heck, the publishers would probably jumped for joy at the free advertising, the radio station trying to get people hooked on the story, with no money spent by them at all.
Somehow I doubt that was what was going on, though. Heck, if I were them, I'd set a policy that any radio or TV station was free to read the first chapter and the first half of the second. Or maybe the first five chapters, depending on how long the book was.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
But using that type of argument you can turn pretty much anything into a free speech issue. I wish to discuss X, but can't because I can't make copies of it, so it's a free speech issue.
Exactly. The fact is, copyright is always a free speech issue. A law that says "you can't write these words because someone else already wrote them" (copyright) is a limit on free speech, just like a law that says "you can't write these words because they're about a topic we don't like" (hate speech, for example).
There might be various reasons to support one limit over the other, but they're both limits, and anyone who supports either must admit that he only has limited support for free speech. Not usually a big deal, because pretty much everyone supports some kind of limits on free speech - shouting "fire" in a crowded theater is the classic example.
Visual IRC: Fast. Powerful. Free.
Lemme see...
Oh, I know, I know!
What about the Patriot Act?
And your point? That's UK law being applied to someone who is in the UK. I specifically stated that France would be well within their rights to say "You are barred from entering our country again unless you pay the judgment against you". The point here, is that this guy is -not- in France. If he were still there, or chose to go back, there would be no question at all.
To fight the war on terror, stop being afraid.
Actually, you're an idiot, while the previous poster was right on target.
Actually, I am a lot of things, but an idiot is definatly not one of them.
One of the things I am, though, is somebody who's not afraid to admit that he's wrong if he is
And one of the things I'm not is someobdy who ignorant, rude, or arrogant, or egotistical enough to personally insult somebody who is wrong.
I guess your particular form of idiocy will have to wait until the next time you bring your car to a machanic to be fixed because you're too much of an idiot to know how to rebuild an engine.
If you are, in fact a lawyer, it might have been nice if you had added your two cents to inform, and not to belittle.
Seems to me that the fact that websites are viewable worldwide is irrelevant. Anything that has ever been published anywhere in any form is viewable worldwide.
But in the the real world the United States has been pushing other countries very hard to enforce and emulate American IP laws. This case kind of puts the shoe on the other foot. It will be interesting to see if the U.S. responds with consistency, or "do as we say, not as we do."
What if it was Constitutional? What if Congress could allow dress design copyrights (or patents or trademarks or servicemarks or whatever, "look" of packaging is something-rightable, I believe) but simply chose not to (or never considered it)? Then what?
Then the US court might very well enforce the foreign law. See http://en.wikipedia.org/wiki/Comity. If you're under the jurisdiction of the foreign law, and the law is not in direct contradiction to US law (including, but not limited to the Constitution), then you might very well be in a situation where the US courts apply foreign laws.
I'd argue that this cannot be allowed to stand because Congress, and the Constitution, cannot reasonably expect American citizens to be aware of every law all over the world that might fall under this umbrella.
Well, it's the Internet that makes everything so complicated. Normally people just have to worry about the laws of the country they live in. Don't want to learn about the laws of France? Don't go to France.
But with the Internet, it's perfectly normal for a US Citizen who has never stepped foot outside the US to step into the jurisdiction of French laws. Whether or not these laws are going to apply, and to what extent they will apply, is really an open question at this point. Fortunately for Americans, pretty much any law which applies to communication over the Internet would implicate the First Amendment, though.
Cities are supposed to post local Bizarro-world parking laws on every street that enters the city so people can't claim they never knew about it as it's unreasonable to expect people to know every strange driving law in every community they drive through.
Just to reiterate, this would never apply to a parking law. In the case we're talking about, the defendent was distributing the works in France. That's why the act is argued to have fallen under French laws.