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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."
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.
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.
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
Free speech? In the USA? You're kidding me right? You must be thinking about some other place.
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. Do you seriously want to see the censorship laws of oppressive nations applied universally to the Internet? And do you really think that every American company should be personally responsible for filtering and censoring their own content so that it meets the legal requirements of countless nations each with a highly diverse and dynamic set of laws?
That kind of reasoning is exactly what the EFF is concerned about. If you read the article, you will see that applying foreign legislation that infringes on first amendment rights is fundamentally unconstitutional. The additional risks to civil liberties are all clearly spelled out in the EFF brief, which you might want to read before leaping to conclusions.
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.
Your first point isn't relevant to anything at all, because taking pictures doesn't constitute infringment. Publishing those pictures constitutes infringement under French law, but the pictures weren't distributed in France, they were distributed on the Internet by an American company. Under those conditions, French law is only applicable under the terms of comity. International copyright treaties like the Berne Convention don't even give protected status to fashions, so publication of the images in this case is only infringement if you argue that the Internet as a whole is subject to the regulatory practices of every nation simeltaneously.
By enforcing a foreign intellectual property law on content hosted and distributed by an American server, the court would essentially be creating a legal precedent that would allow other countries to enforce other kinds of laws on American servers. Doing so would fundamentally alter the definitive nature of comity. Are you arguing that only intellectual property laws should be enforced this way, but not other laws regarding content regulation?
I didn't twist your point, I just addressed implications that you obviously never considered.
And if an author doesn't want his book copied, he shouldn't sell it in a public shop?
What kind of regulations would the UN impose? If something is parodied and published on the internet, would that be illegal under international law since some countries don't protect that form of expression? Laws regarding publication of photos and articles need to be regulated at the local level. Since it is copywrited in france, then the french can deal with it locally. (i.e. block the site from being viewed in france, etc...) It is not fair for one country to be forced to censor it's own citizens based on the laws of another country REGARDLESS of the medium. Putting the UN in control takes away from countries the power protect or control information as it sees fit.
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
"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.
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?
It certainly helps their infringement case to show loss, but it is not a requirement.
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.)
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."