Information Law Possum (discontinued)

Yesterday’s EDRI-gram informs about the recent decision by the Paris Court of Appeal in the case “Mulholland Drive”.

A French consumer association sued the producers of Mulholland Drive because their DVDs were copy-protected and because there was no appropriate notice on the wrapping.

[T]he Court … decided on 4 April 2007 that the private copy of a certain work is not a right but “a legal exception to the principle of copying the entire work without the consent of the copyright holder”. Therefore a private copy is not a right, but an exception and no one can start a legal action based on an exception.

In Hohfeldian terms, private coyping is a privilege for consumers, not a right that would be associated with a duty on the part of rightsholders.

The decision doesn’t come as a big surprise, although many European scholars have put forward the argument–or at least examined it at great length–that private copying could actually be more than a privilege.

The report goes on:

However, the Court of Appeal indicated that this exception can be used as a reasonable defence in the case of alleged counterfeit, if the other legal conditions are fulfilled.

From the perspective of law enforcement, the “right” to make private copies confers subjects immunity from liability for counterfeit.

By the way: The opt-in private copy exception to DRM protection under the EUCD (Art. 6(4)2) doesn’t make the privilege a right, but rather limits consumers’ liability for DRM circumvention.

Phew. I just completed my discussion paper on the subject that’s been dominating my blogging for quite a few days. (See all posts here.)

I wrote it in German and I don’t dare put it online, but I’m happy to email it to anyone who wants it.

My conclusion is that a focus on emotions–especially that of disgust in cases of cannibalism–may convert the hitherto rather hollow ritual of interpreting statutes in Switzerland to a heuristics that leads to the essential normative question(s) at stake.

In our case, that question would be whether the public deserves special protection from particularly disgusting crimes by way of punishing the perpretrators of these crimes more severely. (You can either underlay deterrence or restitution as a theory of criminal justice to this question, it doesn’t seem to matter much.)

The bad news is that the questions uncovered by this “emotional” statutory interpretation are more difficult to answer than the initial ones and, a fortiori, more difficult to motivate in a convincing way.