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.

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.

Imagine you were a judge at an international human rights court.  The bench has just established that the government of one of the court’s member states is responsible for the execution and/or disappearance of forty-one members of a domestic terrorist organization.  Now you have to decide on appropriate remedies for the surviving members of the victims’ families.  What would you do?

My (very unimaginative) answer would have been:

• compensation and amends
• a publication of the judgment

A couple of days ago, my favorite Swiss newspaper, the Neue Zürcher Zeitung, featured a report on a “recent” decision by the Interamerican Court of Human Rights in such a case:  In 1992, 41 members of the Peruvian rebel/terrorist group “Sendero Luminoso” lost their lives in prison, and the court concluded that they were executed illegally by state organs.  (The official verson of Fujimori’s government at that time was that the prisoners were killed in fightings following a mutiny …)

The judgment isn’t as recent as I would have thougt, it dates from November 29, 2006.  In return, it is massive in length (almost 150 pages), and, personally, I find the remedies granted by the Court very innovative.

Here they are (from p. 114-118):

• First, the Court declared that the Peruvian government had violated various provisions of the Interamerican Convention on Human Rights, including the right to life, the right to physical integrity, and judicial guarantees.  These declarations were in turn declared to constitute a form of reparation per se.
• Second, the Court obliged Peru to pay compensation to the survivors (between USD 20,000 and 60,000, which is 3 to 9 times the per capita GDP of Peru).
• Third, Peru has to publish certain parts of the judgment, including the sections dealing with the abuses proven before the Court.

So far, so unspectacular. But here comes the interesting part:

• Peru must immediately complete the investigations against the authors of the human rights abuses and ensure that they are punished in accordance with national law.
• The government must also immediately search for the remains of the victims, turn them over to the victims, and cover eventual funeral costs.
• The government is also ordered to hold a public ceremony of recognition of responsibility, attended by government representatives, and in presence of the survivors.
• Further, the names of the victims are to be inscribed in the national memorial “El Ojo que Llora”, which is dedicated to the victims of violence, in an official ceremony.
• From the day of proclamation of the judgment, the government further needs to provide adequate medical treatment and psychological assistance to the survivors.
• Last but not least, the government must arrange permanent education in human rights for the members of intelligence services, the army and national police, as well as for public prosecutors and judges (!).

This list of remedies is truly impressive, and it’s hard to imagine many more things a government could do to remedy past human rights violations.  Of course, one could argue that court-ordered expressions of regret are not much good for the victims–similar to Kant’s saying that obeying the law is not morally “valuable”.  But on the other hand, the ceremonies ordered by the Court might also be looked at by the survivors as symbols of their victory against the government and therefore as symbols of justice.

Certainly, grave human rights violations as in this case are irreparable.  Yet, justice is restorable.  In this light, a combination of restorative, preventive, and symbolic remedies as taken by the Interamerican Court of Human Rights seems to be the “best second-best” solution available.

This is–to take up the title of a post by Professor John Palfrey–day 4 of the Viacom-Youtube saga. Viacom has retracted its copyright claim regarding Jim Moore’s home video. Three things will remain:

1. Jim Moore’s video on YouTube.
2. 10,000+ articles/posts on the story that will eventually go the way of everything on the web–to the Internet Archive.
3. A loss of reputation on the part of Viacom (allbeit certainly limited both in terms of time and audience).

I’m not quite sure whether Viacom was aware of this reputation risk when it decided to send cease-and-desist letters to Youtube. But the big echo this case has caused hopefully will change that and thus lead to a more targeted use of cease-and-desist letters under the DMCA. And the risk isn’t likely to decrease in the future, as the community is organizing around takedowns.

By the way, it would be interesting to know which risk a corporate compliance risk manager would quantify as higher: the risk of having to pay compensation under DMCA § 512(f) (see latter part of this post by J.P.) or the reputation risk associated with sending unjustified cease-and-desist letters.