Law and Information

Margreet Groenenboom, project researcher at the Institute for Information Law, University of Amsterdam, has reviewed our September 2004 EUCD paper in the recent edition of the INDICARE Monitor. Margreet has done a great job, and I appreciate her comments on the paper. I have two quick thoughts:

1) Obviously, there’s much to say (and much more than we did in the paper) about the private copying exceptions vis-�-vis technological protection measures in general and against the backdrop of recent legislative as well as judicial developments in particular. The observation offered in the paper, in essence, was that “old” EU member states have not made broad use of the possibility to take measures ensuring that the private copying exception will survive technological protection measures. Reading this section, Groenenboom argues: “Against this opinion, one could argue that although there may not exist a right that consumers can enforce as consumer in court, this does not mean that the private copying exception ceases to exist.” I’m not sure what this dissent suggests. Does it mean that our observation was not correct, i.e., that we’re wrong by concluding that incumbent member states have not made broad use of the possibility to ensure that private copying exceptions “trump” TPM? Or does it suggest (and this is my reading) that “rights” may exist even if “rights” are not enforceable in courts? If the latter is the case, I agree to the extent that such exceptions (whether to be qualified as rights, privileges, or something else) continue to exist on the books. But: First, it is our argument that legislators have been rather reluctant to apply these exceptions to digital content protected by TPM. Second, and viewed from a broader angle, even if such exceptions may in theory apply to such content, it is a lengthy (and not fruitful, as I find) discussion of what the nature and value of exceptions are if they were not enforceable in courts. From a user’s perspective, the answer seems clear to me.

2) Margreet correctly points out that we haven’t provided a detailed explanation of the selection criteria for the countries we analyzed. The selection certainly didn’t follow a systematic set of criteria. Rather — as noted in the paper and mentioned in the review — we simply wanted to present a representative selection of interesting implementation models and approaches taken by EU member states. Viewed from that angle, each section in part III can be read, in methodological terms, as an exploratory case study (as a practical matter, we first reviewed all the available implementations and then discussed what we found interesting, i.e. where we identified divergence and/or convergence.)
I also agree with Margreet that it would be helpful to have “an overall schedule of which countries use a narrow approach, and which countries use a broad approach, or to make any profound aggregation at all.” In that sense, we’re very much looking forward to such a comprehensive analysis by our European colleagues. In my opinion, such a comprehensive study can only be conducted in a collaborative effort (ALAI-kind survey) – also (but not only) due to language barriers and lack of general/easy-to-access availability of most recent pieces of legislation in several EU member states.

Again, thanks to Margreet Groenenboom for a thoughtful review.

On a different score: Comments on new implementations are much appreciated. Please email me that we can update this site.

I’m catching up (terribly delayed) with a couple of interesting articles, research papers, and news reports. Here’s a selection of today’s recommended readings:

* M. Davison and B. Hugentholtz’s piece “Football fixtures, horseraces and spinoffs: the ECJ domesticates the database right”

* Natalie Helberger’s Indicare article “Thou shalt not mislead thy customer! The pitfalls of labelling and transparency”

* Mark N. Cooper, TIME FOR THE RECORDING INDUSTRY TO FACE THE MUSIC: THE POLITICAL, SOCIAL AND ECONOMIC BENEFITS OF PEER-TO-PEER COMMUNICATIONS NETWORKS

* Recent Pew report on Music and Video Downloading

* News.com report on Bertelsmann’s new P2P service

* Heise on “Google News: how far does freedom of speech go?”

* I almost forgot this one: Heise on the German Green Party talking about side effects of search engines

Happy Easter.

The Berkman Center for Internet & Society, the Journal of Law & Technology, and the Committee for Sports & Entertainment Law, all of Harvard Law School, are hosting Signal or Noise 2k5: Creative Revolution? on April 8, 2005, on the Harvard campus in Cambridge, Massachusetts.

The conference offers an exciting mix of performances, demonstrations and discussions examining how digital technologies are enabling new forms of creativity by a broader group of people. Cultural, business, legal and ethical implications of new genres and new forms of authorship will all be covered along with an artist’s interests and rights in downstream uses of original creations.

Scheduled conference participants include New York Times bestselling author Matthew Pearl, copyright scholar Terry Fisher, fanfic author Naomi Novik, David Dixon of Beatallica, innovative musician Dan the Automator, Paul Marino of machinima.org, and Wendy Seltzer of the Electronic Frontier Foundation.

Signal or Noise 2K5 is open to the public but pre-registration is needed. For more information
about the conference’s location, schedule and participants, click here.

On a personal note: Special thanks to Berkman Fellow Meg Smith for putting together such a terrific event!

Michael Birnhack posted an interesting article on SSRN (forthcoming in THE PUBLIC DOMAIN OF INFORMATION, P. Bernt Hugenholtz & Lucie Guibault, eds., Kluwer Law International, 2005): “More or Better? Shaping the Public Domain“. I’m particularly interested in the way he frames information quality issues in the context of free speech theories and copyright. Here’s the abstract:

My colleague Joseph Savirimuthu at Liverpool Law School posted new information materials (including a call for participation) for the September 2005 Complexity Conference in Liverpool. Sounds like a great conference!

The European Court of Justice (ECJ) recently ruled that consumers canceling a rental car previously booked via Internet are not entitled to obtain a refund.

Here’s some background. The EU Distance Selling Directive, pro memoria: applicable to any contract for goods or services involving an EU consumer, regardless of whether the supplier has a physical or virtual presence in the EU, grants consumers a right of withdrawal from any distance contract — a right that cannot be waived by contract. Article 6(1) of the Directive states that consumers have at least seven business days to withdraw from the contract without penalty and without giving any reason. However, the Directive contains an exemption for, inter alia, “contracts for the provision of transport services.”

In the present case, the UK’s Office of Fair Trading brought proceedings before the High Court of Justice against UK online rent-a-car company easyCar. The terms and conditions of the easyCar’s hire contract state that consumers cannot obtain a refund if the contract is cancelled, except in unusual and unforeseeable situations (such as serious illness, war, natural disasters, etc.) The High Court asked the ECJ whether car hire services are “transport services” for the purpose of the exemption contained in the Directive.

According to the ECJ, the Directive’s “transport services” exemption sets forth a sectoral exemption which relates generally to services in the transport sector, i.e. can cover all contracts in this field, since the term “transport” refers not only to the action of moving persons or goods, but also includes making the means of transport available to consumers.
Focusing on the legislative context in which the term is used, the ECJ further held that the European legislator intended to protect consumer interests, but also to protect those of suppliers of certain services to avoid disproportionate consequences arising from the right to withdrawal. Since rental car companies must make arrangements for performance of the agreed service on the date fixed at the time of booking, the ECJ held that rental car companies suffer the same consequences in the event of cancellation as any other supplier of transport services.
Therefore, the ECJ concluded that “’transport services’ includes contracts for the provision of car hire services, so that such contracts cannot be cancelled by consumers without penalty.”

Fascinating: Wiki company JotSpot announced that it is working together with Larry Lessig on a peer-produced update of his 99-classic Code and Other Laws of Cyberspace. The project overview reads as follows:

David Weinberger and John Palfrey, among others, have posted impressive general (as opposed to specific) disclosure statements on their weblogs. Currently, I think that’s a good way to address some of the credibility issues related to weblogs. Probably I should follow suit, although this blog (and blogger) is certainly much less of interest than the two mentioned above.

In any event, let me play devil’s advocate for a moment: What’s down the road if we take general (as opposed to specific, case-by-case) disclosure as an approach seriously and compare it to areas of practice where we’ve been working with somewhat similar approaches? Do we face a future where disclosure statements (only imagine such statements from some of our highly networked colleagues!) get as long and complicated as package inserts of drugs, end user license agreements, or terms of services? Will we one day click on “I agree” boxes to accept disclosure statements before we read a blog? Or will we build aggregators collecting and analyzing disclosure profiles of bloggers, where one can check boxes to exclude, for instance, RSS from a philosopher’s blog who does consulting work beside? If the importance of disclosure statements increases under such a scenario, are we likely to see in the long run (as in traditional media law) legislation and regulation establishing disclosure rules and/or standards?

A French Court of Appeals ruled in favor of a student — sued by the movie industry — who downloaded copyrighted movies from the Internet, burned them onto CD ROMs, and watched them with one or two friends. (The student admitted that one third of the content of his 488 CDs-collection was downloaded from the Internet.)
The Montpellier Court applied a provision of the French Intellectual Property Act, which, in essence, states that authors, once a work has been released, may not prohibit private and non-commercial performances carried out within the family circle, and cannot control the making of copies for strictly private use of the copier and not intended for collective use. [Thanks to C�dric Manara for the pointer and the translation via cyberlaw list.]

As far as I can tell, there was no circumvention of technological protection measures involved. In any event, a case to be included in a potential update of this report.

Interesting post and pointers by CyberBug on Human Rights and the Internet — more to come, stay tuned. Check it out.