Information Law Possum (discontinued)

In case you haven’t seen it already, a Belgian court has ordered Google to post a lengthy order on its website google.be for at least five days. Google did that in a font size of about 7 pt – I wonder whether that’s enough “visible and clear”, as the court expressly ordered. Jean-Baptiste Soufron has blogged about the story from a legal perspective, so that I can focus on the fun (i.e. trivial) part of it:

• The mildly retarded consultant said once to Dilbert something along the lines that too much unstructured information is absolutely useless. (Falling in the category “how to hide things with words”.)
• The French (but not the Walloons, of course) say “c’est belge” if they find something not to be too intelligent.
• Another one of my favorite cartoon characters, Obelix (who is also French, like Jean Baptiste), would say instead: “Ils sont fous, les Belges”.

What I do like about the court order, though, is its symbolism: Like no other company, Google takes pride in its minimalistic front page design. Overloading that page with information 99.99 % of users don’t care about (i.e. all but the litigating parties and some information lawyers) is thus a very subtle way for a national court to demonstrate its power over a global company that has the ambition of making any information that is available, be it on the internet or in libraries, searchable and useful.

Sometimes, there is a fine line between obvious stupidity and subtle irony …

Since the post will be gone soon, here’s a screenshot of its upper half:

Something that’s probably even more worrying about the Tankafritt insurance is that the company could probably facilitate the work of the “anti-piracy” agents paid by the music industry who check which users (or IP addresses) up- and download most songs in order to sue them: As a lawyer who advises the music industry, I’d try to convince the competent court to order Tankafritt to disclose the names of its customers to the industry or to public prosecutors. This might not be impossible, as Tankafritt’s customers all engage in illegal file sharing — that’s why they get the insurance. Thus, they could focus on file sharers who are insured, which would not onlyaccelerate the breakdown of the system in a very efficient way, but also save the industry a lot of money they presently spend on searching for large-scale file sharers on the internet.

So, with the present positive anti-filesharing laws, offering an insurance for file sharers is a very very bad idea – at least as bad as the present positive law.

I was going to post some thoughts about the differences between “push” and “pull” modes of information gathering and possible impacts of this destinction on privacy expectation. I’m not going to do that (yet), because as of now, I haven’t come up with anything that makes enough sense to be worth sharing with my imaginary readers.

Today, a piece of information “pushed” to me by Silke caught my attention, which didn’t appear to get through earlier, though I vaguely remember having read something like that in summer. Anyway, what I’m talking about the whole time is the widely reported story of the Swedish startup tankafritt.nu, which was in the news [CNet] [boinboing] [EDRI] because it offers insurance coverage for the fines Swedish peer to peer file sharers face when they engage in that activity.

This is a remarkably naïve project:

• In contrast to a classical insurance, the incidences that give rise to a claim are neither force majeure nor acts randomly (from the perspective of the insured) committed by people. Rather, in this case, there is a single “counterpart”, the music industry, which generally acts in a co-ordinated way in such matters: Through intensifying its efforts to crack down on file sharers, the music industry can actively increase the insured risk.
• This would naturally cause an increase in premiums. Despite that, I guess that intensifying the “anti-piracy” fight would drive customers to Tankafritt in the short run because they are likely to be risk averse when they face the considerable (though not record-braking) statutory fines for music downloading. The industry would then have even more incentives to fight against file sharing, which starts a vicious circle and will eventually result in the collapse of the system: the risk would be too high to be insurable.
• Even before that, the insurance will have adverse consequences, as it tightens the situation of file sharers — a consequence that is contrary to the founder’s intentions: The latter sees his insurance as a protest against the anti-file sharing laws.
• But there are also legal problems: I find it difficult to imagine that a civilized country would legally protect an insurance for illegal activity of the insured. (At least Switzerland wouldn’t, if you accept it as an example for a civilized country … .) Indeed, fines lose their punitive element when they can be insured, and no democratic legislature should tolerate that sort of circumvention of punishment for conduct the government regards as socially detrimental. (I’m neither saying that all democratic laws, and especially copyright laws, make sense or are even fair: my point here is very general.)
• Finally, if the insurance scheme is a success and if it couldn’t be stopped by the government or the music industry, it is likely that the latter would insist that the former aggravate its fine scheme, by increasing the maximum fine, creating special fines for repeat offenders (which is very successful to undermine informal insurances for fines for dodging the fares in Swiss public transportation), etc.

As I said before, I predict that the insurance will do much more harm than good for file sharers. The good thing about it, however, could be that its popularity could show the government and the industry that consumers do want to download music for a flatrate rather than paying song by song, and that they can be very creative to create their own alternative compensation systems if the legislators do not.

This is my micro-theis for today: Blogging makes the small world phenomenon more visible.

Here’s an example I found today when I scanned through my RSS feeds:  David Weinberger, a Berkman fellow (whom I, sadly and ironically, never met during the summer), blogged today about some gorgeous photographs of libraries another blogger has posted.  One of the pictures shows the UNESCO-ennobled “Stiftsbibliothek” in St. Gallen, of which the Nessons and we FIR residents made a guided tour precisely one year ago.  The photographs are by Candida Höfer, the world famous wife of the chairman of the FIR board, Herbert Burkert.

Funny, ain’t it?

P.S. The next time I’ll come up with something more serious. Promise.