Information Law Possum (discontinued)

Next Monday, December 4, the Research Center for Information Law at the University of St. Gallen, in collaboration with the Federal Chancellery, is going to hold a conference on data protection law in Berne. Honoring the event, I’d like to point at some aspects of data protection law that neither have become obsolete nor problematic during the internet revolution.

My first example is spamming, one of the digital scourges of mankind, and a phenomenon which has become recently under suspicion of deepening the digital divide between digital natives and older people (twenty-something +).

Lately, I received one of the few “domestic” spam emails, that is, one from a Swiss million pixel website. As spamming is not clearly illegal in Switzerland yet–an anti-spam amendment to the Unfair Competition Act is under way–, I decided to test that company’s data protection compliance:

Under Swiss (and European) law, every person whose data (i.e. information on an identifiable person) are processed, has an unconditional right of access ot these data, including the right to know the purpose of processing, the categories of data processed, the persons involved in the processing of data, the source of their data, etc. (Art. 8 of the Swiss Data Protection Act [in English]–its EU equivalent, though with a different scope, is Art. 12 of the Data Protection Directive 95/46/EC.)

The data controller has thirty days to respond to a request; the information must be given free of charge (with very narrow exceptions); and a violation of the right of access by the controller is punishable by a fine and/or up to 90 days of imprisonment.

This morning, I sent the spammer a request pursuant to Art. 8 Data Protection Act, mainly because I wonder how he got my email address, but also because requests like mine are apt to make spamming horribly expensive: It is hardly conceivable that these requests can be processed automatically. So, if only a small percentage of spammees “ask back”, they can make spamming prohibitively expensive, and probably even drive a SME out of business.

To conclude: the regulatory burden Art. 8 Data Protection Act creates can be a very effective weapon, which can be used against legitimate and illegitimate businesses.

Urs Gasser and Richard Staeuber has dug out one of the earliest decisions based on the European Copyright Directive (EUCD), rendered on December 31, 2003, by a court in Bolzano (Bozen), South Tyrolia, Italy.

The judgment (no English translation available anymore), which is summarized here, essentially declared illegal the seizure of Sony Playstation consoles that use modified chips to permit uses of the console not authorized by Sony, e.g. playing disks with a different regional code.

Delivering one of the most consumer-friendly decisions in Europe in the realm of digital copyright and anti-circumvention laws, Judge Edoardo Mori made a hilarious metaphor worth keeping in mind. He wrote:

Sarebbe un po’ come se la Fiat vendesse un’auto con il divieto di uso per extracomunitari e per strade extraurbane.

which can be translated as:

This would be a bit as if Fiat* sold a car, but prohibited its use by non E.U. residents and on highways.

Indeed, GPS might make it possible to design such a technical protection measure. The legal problem in this scenario would be, however, that nothing on a Fiat car seems original enough to be copyrightable subject-matter …

*) Fiat is the Italian equivalent to a Chevy, just smaller.

My blog has been a literally mute witness of my relocation over the past two weeks, during which I also missed a great deal of what was happening in the blogosphere, last but not least John Palfrey’s post about Urs Gasser. Yet, moving has the advantage that you get the chance to learn something new, that is, not only how to assemble an Ikea bookshelf:

The north interior wall of Harkness Commons is decorated by a huge mural, made of brown or beige rectangular tiles with big signs painted on them. The artwork is remarkably similar to a ceramic frieze that streches across the wall of the lobby of the University of St. Gallen’s main building. That frieze is by Joan Miró, dates from the sixties, and is part of that building’s artistic concept. The frieze is special in that you can’t see the whole work from any spot in the hall.

Now, clearing out all kinds of stuff, I found a small old guide of the artworks at the University of St. Gallen, from which I learned two things: First, Miró didn’t create the frieze alone, but in close collaboration with Catalan ceramicist Josep Llorens Artigas. Second, the guide says that another ceramic rural by Miró, dating from 1960, is to be found at Harvard University–it must be the one at the Hark.

Coming back to the title of my post, the two men have in common that they both a) appear to like collaborative work, and b) have worked at Harvard and at the University of St. Gallen.