Information Law Possum (discontinued)

Less than two months after the Federal Supreme Court broke up the Swiss book price cartel, I received a sign that this move does indeed foster the access to knowledge–though not only in the way I argued earlier.

The news came in a letter from Rösslitor, St. Gallen’s biggest bookstore, which had been taken over by one of the country’s biggest book retailers a couple of years ago.

The letter started with a hymn to the importance and societal functions of public libraries and school libraries, follwed by a slightly more modest description of the bookstore’s achievments.

The important thing is that Rösslitor will allow all public libraries and school libraries a 10 % discount on all books and other media, and it will ship them for free.  The discount would not have been possible under the old regime of book price fixing.

Ten per cent isn’t a lot, given that libraries are likely the bookstore’s best customers.  But it’s a sign that the market is moving, and I’m pretty sure that competitors will follow.  Thus, the libraries’ consumer rents will increase (and hopefully politicians will allow them to spend the money thus saved to enhance their services otherwise).

P.S. for those who think I’ve been taken in by a PR stunt, please consider the following: My hope is that if book retailers see that customers are aware of the new competition in the book market, they will be more ready to toughen the competition.

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.

I’d block access to Youtube’s website from any U.S. IP address, issue a press release explaining that this is due to the pending litigation, and then see what happens.

I just came across a blog post dating from my pre-blogging phase in my life (i.e. not too long ago …): The post is by Tim Armstrong (whom I sadly never met last summer), and it features a terrific (b.t.w. CC-ed) flow chart of copyright duration in the United States. Sometimes, it is fascinating how different the laws can be from country to country even in matters that appear relatively simple–such as the calculation of a date.

In Switzerland, copyright expires 70 years after the known author’s death (50 years with respect to software), respectively 70 years after publication if the author is unknown throughout that period. The duration was 50 years (according to the 1922 Copyright Act) for authors who died before January 1st, 1943. No renewal, no formalities, no dividend.

Certainly, the appropriateness of the coyright terms’ length can be disputed under both legal regimes. And certainly, a U.S. lawyer or policymaker would find the Swiss solution utterly crude. On the other hand, I strongly believe that statutes may reach levels of sophistication that entail disproportionate costs to society. Just think of all the law students who have to learn the rules and of all the practitioners who have to apply them. Yet, in my view the worst thing is the legal uncertainty for non-professionals such sophistication creates:

High school student Barney, for instance, has become a big fan of Hemingway’s short stories and wants to put the ones he likes best online to share them with his Facebook buddies. He heard about copyright and that copyright has a limited term, so he googles for more information. But alas, if Tim Armstrong’s flowchart doesn’t appear as one of the top results, it’s very likely that Barney is discouraged and abandons his plan. Or he posts the stories anyway, despite being worried about media reports of students who have to pay high sums for copyright infringement.

In either case, Barney is the victim of legal rules too complicated to be practical, and he feels bad.

Or, to say this rather pathetically: The law should cause grief only to the bad and guilty, and certainly not to those who want to obey the rules.