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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.
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.
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.
'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.
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.
It is a founding principle of American judiciary and politics that "the only law that applies is American". The US position on the World Criminal Court and the extraction of the dickhead who murdered 20+ civilians in Italy so that he does not go to trial in Italy for this one are just two examples off the top of my head. Plenty of others.
Baker's Law: Misery no longer loves company. Nowadays it insists on it
http://www.sigsegv.cx/
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/
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.
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.
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
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.
How did this get modded "insightful"?
Freedom of speech is the single most fundamental human right. You are free to tell me to shut up; I am free to ignore you completely.
If you don't like the fact that Americans have freedom of speech guaranteed by the First Amendment, that's your problem. That you try to reverse the position of rights and protest the "free speech mace" indicates to me that you have zero comprehension of the nature or importance of human rights to begin with.
If you read the accompanying text, you would know why. I think the reasons given are so hopelessly misguided as to make a laughingstock of the entire survey; nevertheless, your suggestion that freedom of speech is antithetical to freedom of the press is, to put it mildly, deranged.
In America - I cannot speak for whatever your home country may be - in America you are free to make such claims. And I am free to point out that you are a lunatic.
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.
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.
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.
"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.
The question isn't why something should fall under free speech protections, but rather why something shouldn't. For something not to, a very, very compelling reason should be offered, and there are very, very few things to which the free speech law does not apply.
I agree with that. However, I am a proponent of more "shouldn't" cases. I have no problem with free speech "zones" as you name them. Not that I want to invoke Godwin's law, but Slashdotters often use the svatiska or Mein Kampf and the restrictions in Germany and in France as an example, however I am OK with these restrictions. The restrictions don't preclude education on the matter, on the contrary. In the US, the First Amendment is invoked for everything, from NAMBLA to homo-haters and neo-nazi groups. It's not because Free Speech is a Good Thing(tm) that one should abuse of it, so I have no problem with regulating free speech. It has nothing to do with censorship as long as you can get information (education on the matter from different sources) and think what you like.
As far as I'm concerned, NAMBLA should be illegal, but then again, it's just me. I'm not American so it's not my problem after all. I still prefer "full free speech" than censorship, and luckily the Internet was born under that free speech spirit. The Web is a "request and get" system, so I don't request neo-nazis websites, and even if there are certainly many, I don't see them, that's fine by me (I'd still prefer them not to exist but everyone has the right to his beliefs, yet I think those people are either simple-minded, retards or pyschotics). But I know there have been neo-nazis or such demonstrations in some american towns, I couldn't imagine hearing those fuckers yelling hate speech just under my window. For the sake of MY FREEDOM not to be harassed with hate speech. Their freedom stops where mine starts.
Well, there are some few forms of speech that have been ruled not to be protected...the old "you can't yell fire in a crowded movie house" comes to mind. I think the the terrorists example you gave would fall in to one of these few areas...while speech supporting terrorist activities would be protected, actively recruiting for them to lead to violence agains Americans, etc, would not be.
You can shout out racial slurs all you want, the govt. cannot arrest you for that here...you are mistaken. They do still have KKK rallies around here, and white suprememast (sp?) rallies quite often in public around the states. As long as you aren't actively inciting a riot, but, only expressing a view or opinion, you are perfectly free from govt. repression to do so.
However, reactions to your speech from other private groups, citizens,etc...well, that goes with freedom of speech. You can say stuff like that all you want, but, people that disagree with you also have the right to organize to boycott you, etc....
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
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?
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.
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."