Wired: New World Order, Copyright Style
Owen Blacker
owen.blacker at wheel.co.uk
Wed, 12 Sep 2001 15:13:28 +0100
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A little off-topic for UK Crypto, perhaps, but possibly of interest.
http://www.wired.com/news/politics/0,1283,46676,00.html
| New World Order, Copyright Style
| By Jeffrey Benner <jbenner@wired.com>
| 2:00 a.m. Sep. 11, 2001 PDT
|
| A human rights group in Washington, DC receives a letter from its ISP
| saying that because a court in China has found the site to be defamatory,
| it must be taken down. The ISP informs the group that it will comply with
| the order.
|
| The scenario sounds far-fetched, but under the terms of a little-known
| international treaty now under negotiation, it's plausible.
|
| The latest draft of what's known as the Hague Convention
| <http://www.hcch.net/e/workprog/jdgm.html> would obligate signatories to
| enforce civil judgments in certain types of civil lawsuits brought by
| domestic courts. More than 50 states are involved in the negotiations,
| including those from the United States, China, Japan and the European
| Union.
|
| Opponents are lining up from many quarters, including civil liberties
| groups in the United States who say the treaty threatens basic civil
| rights, including free speech. And ISPs are concerned about a flood of
| lawsuits. The US State Department has also expressed reservations about
| the treaty <http://www.cptech.org/ecom/jurisdiction/kovarletter.html>.
|
| No one expects the treaty to become official policy any time soon, if at
| all. If the delegates from the various nations participating in
| negotiations ever manage to agree on a final draft, it would still have
| to be approved by the president and ratified by the Senate.
|
| But the software, movie and recording industries like the idea of being
| able to enforce their copyrights worldwide, and have been strong
| supporters of the treaty.
|
| All sides will have a chance to comment Tuesday on the latest draft
| <http://www.cptech.org/ecom/jurisdiction/Interim_text.rtf> at a public
| hearing sponsored by the US Patent Office <http://www.uspto.gov/> in
| Arlington, Virginia.
|
| Jamie Love of the Consumer Project on Technology (CPT)
| <http://www.cptech.org/ecom/jurisdiction/hague.html#news>, a vocal critic
| of the draft treaty who is scheduled to speak at Tuesday's hearing,
| worries it will give oppressive regimes far too much power.
|
| "It exposes you to liability on speech and intellectual property from the
| worst regimes in the world," Love said. "That reduces the public's rights
| to the lowest common denominator." He wants the whole section of the
| treaty that deals with intellectual property and damage claims tossed
| out.
|
| Not so fast, say the motion picture, music and publishing industries.
| They see the treaty as a potentially powerful tool for enforcing
| copyright violations abroad. Currently, there's no effective mechanism
| for getting US court judgments enforced abroad. The whole purpose of this
| treaty is to streamline that process.
|
| Manon Ress, speaking as a consumer advocate with Essential Information
| <http://www.essential.org/>, a sister organization to CDT, explained: "At
| this point, the only people who like it are the copyright owners. You
| could stop all the little Napsters around the world with an injunction.
| It's a dream come true for them."
|
| But according to Rich Taylor, a spokesman for the Motion Picture
| Association of America <http://www.mpaa.org/>, treaty opponents overstate
| his industry's enthusiasm for the treaty. He said the MPAA recognized the
| difficulty of reaching an agreement on jurisdiction, and was urging
| caution.
|
| "We support the aims of the convention, but it's premature to implement a
| broad treaty," Taylor said. "We will urge the US delegation to pursue a
| more narrow approach." He didn't go into detail about which portion of
| the current draft should be scaled back. An MPAA representative will
| speak at the hearing.
|
| Mark Bohannon, general counsel for the Software and Information Industry
| Association <http://www.siia.net/>, agreed that there was no hurry, that
| the treaty should be narrowed. "It's gone way overboard and it's trying
| to do too much. It would be useful to focus our attention on our efforts
| on a business-to-business context."
|
| But he flatly rejected the suggestion that the treaty's entire
| intellectual property section should be tossed out. "That's not on the
| table right now," he said.
|
| ISPs generally oppose the treaty. After battling hard to avoid liability
| for the content that passes over their networks domestically, the last
| thing the industry wants is to be liable under 50 different sets of laws
| at once.
|
| Barbara Welbery, a partner at Morrison & Foerster <http://www.mofo.com/>,
| is an expert on international jurisdiction and familiar with the ISP
| point of view. "ISPs are concerned they can be sued anywhere in the world
| for copyright, defamation or privacy violation," Welbery says. "And the
| judgments would have to be enforced." She will be speaking at the hearing
| on behalf of Yahoo.
|
| An important loophole in the draft treaty could provide some protection
| against worst-case scenarios, but experts disagree over how much
| protection the caveat will provide. The exception says that foreign
| judgments are not to be upheld if enforcement is "manifestly incompatible
| with the public policy of the state addressed."
|
| In cases involving free speech, this exception could give US courts much
| leeway to refuse enforcement. But, Welbery pointed out, the protection of
| the clause goes down in areas where US policy is not so well defined,
| such as privacy.
|
| Faced with strong and conflicting opinions on both sides of the issue,
| the US delegation is reportedly trying to decide whether to put the whole
| treaty on ice, scale it back or plow ahead.
|
| In 1992, when the idea first surfaced, the United States was pushing for
| a treaty. The United States actually has a reputation for enforcing
| foreign judgments now, and sought some assurance that US citizens and
| companies would enjoy the same treatment abroad.
|
| But when the Internet arrived, it made things dramatically more
| complicated, and now the treaty is part of the ongoing struggle to figure
| out who gets to sue whom -- and where -- in cases involving the Internet.
|
| "It's not clear whether traditional jurisdictional rules can apply
| effectively to the Internet," said Jennifer Lucas, an attorney with the
| US Patent Office and a member of the US negotiating team in The Hague.
| "The law is in flux right now."
|
| And so is the status of the treaty. The latest draft is a labyrinth of
| footnotes and differing versions of the same clauses. Lucas says that she
| will be listening carefully to all the opinions on Tuesday, trying to
| balance them as best she can.
|
| "We're evaluating all of our options," she said. "Nothing is off the
| table."
|
| Copyright (c) 1994-2001 Wired Digital Inc. All rights reserved.
| <http://hotwired.lycos.com/home/copyright.html>
|
| [ends]
- --
Owen Blacker
Senior Software Developer / InfoSec Consultant Wheel: Clerkenwell
See http://www.owens-place.org.uk/pgp.html -- more about my PGP keys
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