geert lovink on Wed, 20 Jun 2001 09:43:55 +0200 (CEST) |
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[Nettime-nl] Haagse Conventie brengt vrijheid op Internet in gevaar |
Beste Nettime-nl en de Hagenaren in het byzonder, de afgelopen weken is er in Den Haag onderhandeld over een internationaal verdrag dat de vrijheid op Internet aan banden wil leggen (zie onder). Ted Byfield had al een paar keer materiaal over deze Hague Convention naar de internationale nettime-l lijst gestuurd. Samen met Jamie Love (die vorig jaar juni in De Balie op Tulipomania sprak) vragen zij zich af of er mensen in Nederland/Den Haag zijn die aktief willen worden en iets tegen deze conventie willen doen. Wellicht is er al een groep. Ik heb de laatste mail van Ted & Jamie ook hieronder geplakt. Neem kontakt met ze op mocht je geinteresseerd zijn. Groeten, Geert ---- [via <tbyfield@panix.com>; see jamie love's comments on this article at <http://lists.essential.org/pipermail/random-bits/2001-June/000595.html>.] <http://www.thestandard.com/article/0,1902,27176,00.html> THE INDUSTRY STANDARD MAGAZINE Your Court or Mine? By Boris Grondahl Berlin Bureau Chief Issue Date: Jun 25 2001 An international conference aims to make the world legally safe for e-commerce. BERLIN - International law was murky even before the Internet made a mockery of national borders. So pity the brain trust of diplomats holed up in The Hague, Netherlands, for the past two weeks. Their mission: Work on a new treaty to determine how private parties file civil lawsuits when the plaintiff and defendant are in different countries. An agreement, the negotiators hope, will begin to lay the legal ground rules for the next generation of e-commerce services. Under the current tangled web of international law, companies and individuals can win a suit in one country but never be sure that the decision will be enforced in the jurisdiction of the defendant. The treaty hopes to set guidelines as to which national court can rule on a specific case. It would then require other countries to enforce those rulings. According to a draft of the treaty, when a U.S. company does a deal with a Swiss company, both sides can agree to be governed by either the U.S. or Swiss courts - or even a third country. In the case of consumers and employees, they will be able to file suit in their home countries. Opponents of the current draft - led by the U.S. delegation in The Hague - argue that this leaves companies open to suits from all over the world and stifles their incentive to expand e-commerce. Consumer advocates counter that distrust of the Net will not diminish if consumers have only one option for airing their grievances: bringing a suit in a foreign country. Sound complicated? It's nothing compared with the fight over intellectual property and free speech. U.S. companies and civil rights activists are terrified that foreign legal judgments will trample on the First Amendment. Last November, a French court found U.S. Internet company Yahoo liable for selling Nazi memorabilia, outlawed in France, to French citizens through its U.S.-based Web site. At the same time, the rest of the world recoils at what it sees as excessive U.S. litigation against trademark and patent infringement. So far, no one seems keen on compromise. But if the hurdles to an international agreement seem too high, the organizers of The Hague confab can fall back on a follow-up conference scheduled for late this year or early next. They'll need to: As chief U.S. negotiator Jeffrey Kovar describes it, the treaty "is not close to being ratifiable." At least there's something all the participants agree on. --- from: tbyfield@panix.com to: nettime-l@bbs.thing.net date: Monday, June 18, 2001 8:44 AM the silence on this subject in 'activist' circles which have demonstrated their talent for getting bent out of shape over closely related issues is pretty amazing. cheers, t - From: James Love <love@cptech.org> {1} Hague diplomatic conference {2} Dan Gillmor on Hague {3} Hague consequences: 16 recent foreign defamation stories {4} Economist article on the Hague Treaty {5} Free sw removed from german website due to US software patent threats {6} RMS - Harm from the Hague {7} Report on Hague negotiations {1} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: Hague diplomatic conference Date: Fri, 08 Jun 2001 12:52:54 -0700 The goal of the current Hague diplomatic conference is to replace the 1999 draft convention with a new draft. This meeting will not result in a new treaty, but rather set the stage for more negotiations and a second diplomatic conference, no earlier than next year, and possibly set at this meeting. The diplomatic conference offically ends on June 20th. There will then be 2 days of smaller meetings to discuss follow-up and additional issues, including a possible new convention on securities on the Internet, as well as civil liability for environmental protection, one on Information Society and electronic commerce, unfair competition, and assignment of receivables, and many other items, many related to the Internet. (preliminary documents 10, 11 and 12). These meetings are restricted. The current meetings is swarming with lobbyists, and who have very good access to the working groups on various Articles, including the ability to speak. Various lobbyists are pushing specific language in the drafting. This is not to mention the various social events organized by parties like AOL/Time Warner. Jamie {2} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: Dan Gillmor on Hague Date: Fri, 08 Jun 2001 15:31:35 -0700 I missed this when it was first written... Jamie http://www.siliconvalley.com/docs/opinion/dgillmor/dg051701.htm Posted at 8:20 p.m. PDT Wednesday, May 16, 2001 Proposed international law treaty puts rights at risk BY DAN GILLMOR Mercury News You probably haven't heard of the Hague Convention on Jurisdiction and Foreign Judgments. Maybe your employer's corporate lawyer has. But you need to know, and care. It's a quagmire in the making, and it could put your rights -- and maybe your property -- at risk. [snip] {3} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: Hague consequences: 16 recent foreign defamation stories Date: Sun, 10 Jun 2001 00:26:57 -0400 One of the frustrating issues in working on the Hague Convention on Jurisdiction is the astonishing low level of concern among newspaper and press organizations over the impact of the Convention on laws involving speech. Apparently assuming that the Hague Convention's Public Policy exception and the US first amendment will make any an all global laws irrelevant to US citizens, there has been zero engagement by the press on this treaty, as a stakeholder. And by that, I mean zero. Not one press organization or corporate content provider has registered any concern about the Convention on speech related issues. The only ones that have raised concerns been been the ISPs, because they correctly understand that they will be the ones sued, and that since they have foreign assets and peering connections, they will find it difficult to hide behind the US 1st Amendment. The following are 16 recent stories regarding foreign defamation cases, in a variety of countries with different legal traditions. Note that under the Hague Convention framework, there is no attempt to address differences in substantive law, and that in several negotiations this year, the Hague delegates refused to move speech related litigation into the treaty's non-mandatory "grey" area for enforcement, or to provide for a policy statement on speech that followed the Universal Declaration on Human Rights (the Europeans objected to this). Jamie [1] http://www.timesofindia.com/130501/13nbrs12.htm Chinese police arrest dissident from hospital In another case reported Saturday, the family of dissident Wang Jinbo said he had been arrested for "defaming" police on the Internet. Wang, 29, was detained in Junan town in eastern China's Shandong province, his father Wang Xiuyu told AFP. He said he was told his son was detained for 15 days for having defamed local police on the Internet. Police threatened Wang Xiuyu with arrest when he asked them for details of charges against his son. [2] http://www.ananova.com/news/story/sm_313430.html 2 June 2001 Italian accused of creating blasphemous website An Italian web designer has been accused of launching a blasphemous website featuring photomontages of the Pope with naked girls. The 25-year-old from Latina, near Rome, has been charged with defaming religion. Police say the site attracted hundreds of visitors a day. All relevant material and books have now been seized, reports the Il Nuovo paper. [3] http://www.arabicnews.com/ansub/Daily/Day/010602/2001060232.html All NGO's unjustly tarred with the same brush Egypt, Politics, 6/2/2001 The seven-year jail sentence against Egyptian-US academic Saad Eddin Ibrahim ignited a fresh bout of debate over the future of non-governmental organisations (NGOs) in Egypt, an Egyptian report said. The issue of foreign finance will remain inconclusive as long as the government is unable to produce a viable alternative to Law No.153/1999, whose constitutionality was challenged. Saad Eddin Ibrahim, whose ordeal won him the title of democracy activist, was sentenced to seven years in jail after the State Security Court found him guilty of defaming Egypt in his rights reports. He was also charged with damaging state interests by spreading "false reports" alleging electoral fraud and religious persecution. The court found the 62-year-old sociology professor guilty of receiving funds illegally from the European Commission to monitor parliamentary elections and offering bribes to forge official documents. Up to 20 employees in the Ibn Khaldoun Centre for Social Development Studies, a Cairo-based group run by Ibrahim, received sentences ranging between one and five years. [snip] [4] http://allafrica.com/stories/200106040336.html Former Government Minister Yerodia Abdoulaye Brings a Second Journalist Before the Court Journaliste En Danger PRESS RELEASE June 4, 2001 Posted to the web June 4, 2001 Congo Kinshasa Andre Kisangani, a journalist with the daily "La Reference Plus", has been summoned to appear on 5 June 2001 before the Court of Kinshasa/Pont Kasa-Vubu by the former education minister, Yerodia Abdoulaye Ndombasi. In a summons dated 23 May, the former minister accuses Kisangani and the newspaper "La Reference Plus" of defamation and asks the court to sentence the journalist to "the strongest penalty provided for by the law" and to impose a fine of US$ 32,000 on his newspaper for damages. On 3 May, "La Reference Plus" published an article by Kisangani entitled "By publishing the day of the delivery and resumption of a controversial decree, Yerodia smeared and dishonoured at the Education Ministry". In this article, the journalist accused the minister of having removed a team of advisors from his outgoing cabinet, among which there were fictitious advisors, with "his eye on the severance payments". In the same article, the journalist wrote that Minister Yerodia "was preparing to deliver 185 public schools to a religious organisation whose only members are tribal brothers." This is the second summons from the former education minister since he was dismissed from the government. The first case pits the minister against the bi-weekly "Numerica". [SNIP] [5] http://allafrica.com/stories/200106060038.html Wapa Threatens to Sue Wasieba New Vision (Kampala, Uganda) June 6, 2001 Posted to the web June 6, 2001 Okello Jabweli The National Political Commissar, James Wapakhabulo, has threatened to sue Bubulo West MP Wanjusi Wasieba for defamation. Wapakhabulo, also the Mbale Municipality MP, denied playing any role in the nullification this week of Wasieba's nomination by the Electoral Commission. "I don't know why his nomination was nullified. I don't even know why UNEB refused to certify his papers. I have not been in touch with either the Electoral Commission or UNEB over his papers," Wapakhabulo told The New Vision by telephone. The New Vision yesterday quoted Wasieba as having said that some politicians, including Wapakhabulo, were behind the nullification of his nomination. Wasieba said on Monday that the Government had given him armed escorts following threats on his life by Mbale-based politicians. Wapakhabulo, who described Wasieba's allegations as grave said, "If what has been reported is true, then I will have no option but to consult my lawyers to sue him for defamation." He said Wasieba's decision to request for armed guards after making the allegations against him was intended to portray him as a killer. Wapakhabulo described his campaign as "tough but enjoyable. [6] http://allafrica.com/stories/200106060119.html Report On WPFC's Press Freedom Mission to Zimbabwe World Press Freedom Committee (WPFC) June 6, 2001 [snip] The five members of our delegation accompanied Nyarota to Harare Central Police Station later in the day of our meeting with Moyo. For the second time in a month, Nyarota had been charged with criminal defamation over Daily News reports about a law suit filed in New York against President Mugabe by Evelyn Masaiti, the opposition member of parliament for a rural constituency, and three relatives of victims of violence surrounding elections in June 2000. The Daily News and The Standard reported that the four sued Mugabe in the USA for damages suffered; the Mugabe government has in turn sued the newspaper for defamation, claiming the newspapers had published "persistent false and malicious reports." [7] http://www.nationalpost.com/home/story.html?f=/stories/20010609/587477.htm EXCLUSIVE: 'Buck has to stop with leadership,' Ablonczy says Alliance at 9% support: Day has not earned trust of colleagues, constituents: MP Sheldon Alberts [snip] Eight Canadian Alliance MPs have been suspended from the party's caucus for demanding Mr. Day's resignation last month. Deborah Grey, the first Reform MP elected to Parliament, has also urged the leader to "graciously step aside." A group supporting the leader, Grassroots For Day, yesterday filed a statement of claim in a Calgary court for a $475,000 defamation lawsuit against Ms. Grey for alleging during a television interview this week that the group had sent an e-mail threat to Chuck Strahl's family. Mr. Strahl is one of the eight MPs who has been suspended. "In its entirety the statement is inflammatory, insulting, degrading and unacceptable and serves no purpose other than to besmirch the Plaintiffs' reputations," said the statement filed by lawyers for George Bears, the group's national director. "She made this defamation on public television and I would simply make the request that she make the apology on television," Mr. Bears said in an interview yesterday. [8] http://www.theage.com.au/business/2001/06/05/FFXAYMRTJNC.html Strictly Private By CHRISTOPHER WEBB Tuesday 5 June 2001 BHP chief sues 'The Australian' for defamation Looking to put a bit more fruit on the sideboard before he leaves these shores, BHP chief Paul Milton Anderson has lobbed a defamation writ in the lap of Nationwide News Pty Ltd. Anderson claims he was seriously defamed in The Australian last month in a piece headed "When bullies talk, it's time to walk". In a statement of claim over the signatures of learned friends Jeffrey Sher, QC, and Michael Wheelahan, Anderson said his character and reputation had been injured and that he had suffered loss and damage. He wants aggravated and exemplary damages. The claim stated that the piece was understood to mean that: --The main reason Anderson promoted and supported the BHP and Billiton plc merger was for the ulterior purpose of enabling him and his wife to return to live in the United States earlier than otherwise would have been the case. --Anderson had breached his duties to BHP and its shareholders by supporting the merger for the ultimate purpose of appeasing his wife and to enable them to return to America. [snip] [9] http://www.vancouverprovince.com/cgi-bin/newsite.pl?adcode=p-nw&modulename=n ational%20news&template=national&nkey=vp&filetype=fullstory&file=/cpfs/natio nal/010602/n060210.html N.B. editorial cartoonist wins appeal of libel award to Holocaust denier Last updated: Saturday 9 June 2001 NATIONAL NEWS FREDERICTON (CP) - New Brunswick Appeal Court has overturned a libel award against an editorial cartoonist accused of defaming a former teacher who believes the Holocaust was exaggerated. Josh Beutel was ordered two years ago to pay $7,500 in damages to Malcolm Ross, who was barred from the classroom in 1991 after a human rights inquiry found that his anti-Jewish writings created a poisonous atmosphere. [SNIP] [10] http://www.voanews.com/article.cfm?objectID=CF4C7809-560B-11D5-841900508BF97 12A&Title=Leftist%20Militants%20Attack%20Mexico%20City%20Assemblyman Leftist Militants Attack Mexico City Assemblyman Greg Flakus Mexico City 1 Jun 2001 02:38 UTC [snip] But tensions between the two parties have been growing in recent days as PAN assembly members press forward the investigation of the Robles term and allegations that first surfaced in the Reforma newspaper. PAN officials have also accused current Mayor Andres Manual Lopez Obrador, also of the PRD, of covering up for Ms. Robles. Meanwhile, the former mayor has brought a criminal defamation suit against the journalist who wrote the initial report questioning her use of funds during her 1999-2000 administration. Reforma editors say the information they printed is valid and they have backed the reporter. The New York-based Committee to Protect Journalists was among international groups condemning Ms. Robles' action against the reporter and the newspaper. The more recent accusation against Rosario Robles is that, when she was still mayor last year, she paid more than 55 million pesos, about $6 million, from public funds to a public relations company for broadcast political advertising. A former employee of that company claims part of the money was to be used to finance a future campaign for the presidency by Ms. Robles. She had been considered a prime candidate for the 2006 presidential election, but analysts say her political future could be cut short if she is not quickly cleared of these charges. [11] http://allafrica.com/stories/200105290119.html Journalist, Printer And Four News Vendors Detained ExpoTimes (Freetown) May 29, 2001 The editor-in-chief of the Malawian daily, The Dispatch, Martines Namingha, printer, Kaleraa Mhango, and four newspaper vendors were over the weekend detained for publishing "false information". In a protest letter addressed to the Minister of Home Affairs, Monjeza Maluza, the Paris-based Reporters sans frontières (RSF - Reporters Without Borders) has asked the minister to order the competent authorities to release them. Robert Ménard, General Secretary of the press freedom organisation, reminded him that the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussein, recommended in a document published in January 2000: "In the case of offences such as 'libeling', 'insulting' or defaming' the head of State and publishing or broadcasting 'false' or 'alarmist' information, prison terms are both reprehensible and out of proportion to the harm suffered by the victim". According to information collected by RSF, on 25 May 2001, Martines Namingha was arrested for having published an article headed "What will happen if Muluzi dies today?" and in which he addressed the question of the succession of the current president. According to Agence France Presse (AFP), the printer, Kalera Mhango, has been arrested for facilitating the publication. Four sellers have also been arrested. [12] http://www.abc.net.au/news/politics/2001/05/item20010529165743_1.htm (Australia) AMA president to sue Minister over 'qualifications' jibe May 30, 2001 The president of the Australian Medical Association (AMA), Dr Kerryn Phelps, will sue the Federal Health Minister, Dr Michael Wooldridge, for defamation. Dr Wooldridge responded to criticism of Government policy from the AMA last week, by saying Dr Phelps had no specialist qualification other than in the media. Dr Phelps, a specialist general practitioner, says she has legal advice that she can sue, and win. She says her preference was not to take legal action, but the Minister had refused to apologise, despite having every opportunity to do so. [13] http://news.bbc.co.uk/hi/english/world/middle_east/newsid_1356000/1356140.st m Monday, 28 May, 2001, 22:07 GMT 23:07 UK Algerian press freedom protest About 3,000 human rights activists and opposition supporters have joined journalists in a street demonstrations in Algiers against a new proposed law which they believe will destroy press freedom. More than 20 independent newspapers in Algeria cancelled their Monday editions to protest against the proposed law. It would provide for sharply increased penalties for defaming Algerian President Abdelaziz Bouteflika, including prison sentences of up to a year and fines of $3,500. The bill, which was passed by the lower house of the Algerian parliament three weeks ago, still has to be approved by the upper house. [14] http://allafrica.com/stories/200105290330.html Two Journalists Released Amidst Renewed Crackdown On Press Writers in Prison Committee May 28, 2001 Posted to the web May 29, 2001 Toronto The Writers in Prison Committee of International PEN welcomes the release from prison of Garoma Bekele and Tesfaye Deressa but is dismayed at the continued detention of Solomon Nemera, and the arrests of fellow journalists Daniel Gezzahegne, Kidus Habt Belachew and Eyobe Demeke. On 10 May 2001, charges of terrorism against Garoma Bekele, Tesfaye Deressa and Solomon Nemera were dropped for lack of evidence. The three, who all worked for the now defunct magazine Urjii, had previously been handed down prison sentences on charges relating to the press law. Reporters Bekele and Deressa were released the same day but Nemera was told that he would have to raise 10,000 Birr (approx. US$1,210) bail because as editor-in-chief of Urjii, he had greater responsibility for the alleged press law violation. Unable to raise the money, he remains in detention. He is reported to be facing a further, as yet unknown, charge. Bekele, Deressa and Nemera were all arrested in October 1997 following coverage in Urjii of the involvement of government troops in the killing of three alleged members of the Oromo Liberation Front. The journalists were imprisoned for more than two years while waiting for their case to come to trial. When it did, they were all given one-year prison sentences for "publishing false information". They would normally have been released immediately on account of the time they had already spent in prison but they remained in custody due to the charges of terrorism brought against them. Meanwhile, on 4 May 2001, Daniel Gezzahegne was detained when he was unable to raise the 5000 Birr (US$605) bail set by the court trying his case. The deputy editor of the Amharic weekly Moged faces criminal defamation charges based on an article published in the newspaper Gemenna. The piece cited alleged corrupt practices amongst the religious authorities in Gonder province. Gezzahegne was editor of Gemenna at the time of publication. His trial is due to begin in October this year. Kidus Habt Belachew, editor-in-chief of the newspaper Mebrek, was obliged to make a statement to the Central Investigation Department (CID) on 10 May 2001 concerning his newspaper's coverage of demands made by students in Addis Ababa. Belachew was released on payment of a 10,000 Birr bail. Eyobe Demeke, managing editor of the weekly Tarik, is also reported to have been detained in early May 2001 on charges connected with an article he published in 1996. He was charged at the time of the publication but freed on bail up until his recent arrest. Whilst relieved that Garoma Bekele and Tesfaye Deressa have at last been released, International PEN is gravely concerned at the latest wave of detentions of journalists in Ethiopia. It calls on the Ethiopian authorities to end the practice of using press laws as a tool to curb free speech, and urges the Ethiopian government to take steps to decriminalise defamation, making it a matter for the civil courts. International PEN appeals for the release of all journalists held in Ethiopian prisons. [snip] [15] http://www.washingtonpost.com/wp-dyn/articles/A82847-2001May26.html Curbs on Free Speech Quell Debate in Egypt By Howard Schneider Washington Post Foreign Service Sunday, May 27, 2001; Page A22 CAIRO -- Feminist author Nawal Saadawi worries for her life. She has been declared an apostate by Egypt's top religious officials, an offense punishable by death under the tenants of Islam. Saad Eddin Ibrahim, an Egyptian American sociologist and democracy activist, sits in jail under a seven-year sentence for defaming the state. [snip] [15] http://allafrica.com/stories/200105240281.html M&G and ANC Slug it Out in the High Court Mail & Guardian (Johannesburg) May 24, 2001 Posted to the web May 24, 2001 Johannesburg The Mail &Guardian and the ANC faced each other in court this week over the allegation that a white editor wrote an article and put a black journalist's name above it, Khadija Magardie reports The Johannesburg High Court looks miles away from a resolution of the dispute between the Mail & Guardian and the country's ruling party. The newspaper's former editor, Phillip van Niekerk, and former M&G journalist Lizeka Mda are suing a senior member of the African National Congress, and the party for defamation. This was after Van Niekerk was accused of being a dishonest racist who penned an allegedly nefarious article under Mda's byline. In what could possibly set a legal precedent, the court is being asked to broaden the law of defamation, which only makes monetary awards, to include, as part of relief sought, a declaratory order for a retraction and a formal, written apology. The two journalists are not seeking any financial award from the court. [snip] [16] http://allafrica.com/stories/200105240206.html A Christian Perspective On Press Freedom Financial Gazette (Harare) May 24, 2001 Posted to the web May 24, 2001 Tim Neill Harare The charging of the editor-in-chief of the Daily News with criminal defamation is fundamentally an assault on Press freedom. It is in the same category as the bombing of the printing press of the Daily News, the forceful closing of Capital Radio, the torturing of journalists and the like. [snip] {4} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: Economist article on the Hague Treaty Date: Thu, 7 Jun 2001 20:57:45 -0400 (EDT) The Internet's legal conundrum June 5th 2001 From The Economist Global Agenda http://www.economist.com/agenda/displayStory.cfm?story_id=645750 Negotiators from 50 countries are meeting in The Hague for two weeks to try to formulate rules for governing cross-border lawsuits. The biggest source of these is likely to be e-commerce over the Internet. There is widespread disagreement about how to proceed. Negotiators will have to be careful that, in trying to tame the Internet, they don't strangle it THE INTERNET'S ability to span borders, destroy distance and unite the world's computer networks into a seamless whole looks wonderfully elegant to engineers, but awfully messy to lawyers. Previously cut-and-dried questions of legal jurisdiction-such as what country a particular transaction took place in-have now become horribly murky. Buy something in a shop, and you are clearly bound by the laws of the country where the shop is physically situated. But make a purchase from the same shop over the Internet from a foreign country, and it is not at all clear whose laws apply. Untangling this legal Gordian knot is the unenviable goal of a proposed treaty called the Hague Convention on Jurisdiction and Foreign Judgments. It will be discussed by delegates from 50 countries, who will meet in The Hague for two weeks of formal negotiations starting on Wednesday June 6th. A great deal is at stake. The treaty covers commercial law and is intended to harmonise the rules for cross-border litigation between private parties. This includes disputes over patents, intellectual property, libel and defamation. Simply put, it would require signatory countries to agree to enforce legal judgments handed down in other countries. This sounds fine in principle; indeed a similar arrangement, the Brussels Convention, already covers EU countries, allowing a legal judgment in one country to be enforced in another. But the Hague Convention would go much further, because it would cover a far larger number of countries, some of which have very different laws. In particular, activists in the United States are concerned that if the convention is agreed and ratified, US courts would end up having to enforce judgments against people whose actions were entirely legal under local laws. Such fears have been heightened by a French court's ruling last year that Yahoo, an online portal, could not sell Nazi memorabilia through any of its international auction sites to users in France. Rather than attempt to filter its sites for users in different countries, Yahoo banned such material from all of its sites. The French ruling has thus, in effect, been imposed on citizens of other countries. The Hague Convention would essentially formalise and grant international legitimacy to rulings of this kind. For opponents of the convention, other nightmare scenarios abound. A US citizen could, for example, post something on the Internet and be sued for libel by someone in another country where free speech is not protected, as it is under the First Amendment. Or what if your invention (or business model, or software algorithm) is stolen and patented by a rival in a foreign country with a lax patent regime? You could then be sued for patent violations in that country, and the judgments could be enforced against you at home. To complicate matters further, different interest groups within each country would like the convention to be modified in different ways. Consumer groups want local laws to apply to consumers who buy things online, on the grounds that consumers cannot be expected to understand how laws vary from place to place. But companies that wish to do business online do not want to get involved with myriad sets of regulations either and would prefer to be able to impose "click-through" agreements on their websites, requiring customers to agree that transactions will be subject to the laws of the country where the company is based. It gets worse. In general, firms that export goods want their home laws to apply to the transactions; but so do firms that import goods. You cannot have both. This means that, in some cases, there is disagreement within single organisations about how the convention should be worded. The danger is that the convention will undermine the development of electronic commerce. Companies might choose to block users from particular countries from accessing their sites, rather than be subject to those countries' laws, or decide against doing business online altogether. The implications for free speech are just as ominous. "The result could be that the Internet is reduced to the lowest common denominator, where websites avoid any but the safest content for fear of offending someone and being hauled into court," said Barbara Wellbery, a Washington lawyer and a former e-commerce advisor to the US Commerce Department, during a Congressional hearing on the subject on May 22nd. Telecoms firms and Internet-access providers are concerned that, under some countries' laws, they would be liable for content travelling over their networks and so would have to start monitoring and filtering it. One suggestion, supported by telecoms firms, consumer groups and Internet activists, is that the section covering intellectual property should be excluded from the convention, so that it only applies to disagreements over the sale of goods and services. But this idea has been strongly opposed by publishers, record companies and other rights holders. They see the convention as a means of strengthening their ability to protect intellectual property in countries where it is currently difficult to make legal judgments stick, and are therefore about the only people with a kind word to say about the convention. It would, for example, make it easier to shut down websites containing pirated material, or to sue pirates in foreign countries for damages. The negotiators meeting in The Hague this week clearly face a near-impossible task in reconciling these different views over the next two weeks. The idea is that final tweaks will be applied at another meeting early in 2002, at which point the treaty will be ready for ratification. But the previous attempt to finalise the convention's wording ended in 1999 without agreement, and the same thing may well happen again. Part of the problem is that negotiation of the convention began in 1992, and the sudden explosion of the Internet in the mid-1990s undermined much of the work that was originally done. The convention was initiated by the United States, which argued that, although US courts generally enforce the rulings of foreign courts, other countries do not always reciprocate. Ironically it is now in the United States, which has the most to lose from the imposition of restrictions on e-commerce, where most of the opposition to the convention is now coming from. The Internet will be regulated, and subject to both laws and lawsuits. Of that, there can be little doubt. But just how and when the world's legal systems, all of them nationally based, will mesh with the Internet, whose great virtue is that it straddles the globe, is still far from clear. {5} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: Free sw removed from german website due to US software patent threats Date: Sun, 10 Jun 2001 12:23:22 -0700 -------- Original Message -------- Subject: [Fwd: Free sw removed from german website due to US swpat threats] Date: Sat, 09 Jun 2001 13:36:55 -0400 From: Seth Johnson <seth.johnson@realmeasures.dyndns.org> Reply-To: seth.johnson@realmeasures.dyndns.org Organization: Real Measures To: C-FIT_Community@realmeasures.dyndns.org (Forwarded from Patents list) -------- Original Message -------- Date: Sat, 9 Jun 2001 16:46:15 +0200 (CEST) From: PILCH Hartmut <phm@a2e.de> Under http://www.heise.de/newsticker/data/daa-07.06.01-002/ http://www.fh-furtwangen.de/~dersch http://www.ipix.com http://www.cityscope.de/pp3n/index.html http://listserv.fh-furtwangen.de/cgi-bin/lwgate/cgi/lwgate-en-proj.cgi/PROJ- IMIM/archives/proj-imim.archive.0106/date/article-21.html you can find some info in german about the latest development about the Dersch v. iPIX case, see also http://swpat.ffii.org/vreji/pikta/xrani/ipix/ (to be updated) A German math professor has backed down by removing his free image processing software from the web at least temporarily due to threats from iPIX Inc., a company that has pursued swpats agressively through US courts. The strange thing about this is that Dersch is backing down although the claims from iPIX are based only on US patents. It seems that even without further extensions of the Hague Convention jurisdictions are already sufficiently blurred to allow US patents to terrorise European software developpers who are only publishing web pages without pursuing any business activities in the US. -- Hartmut Pilch http://phm.ffii.org/ Protecting Innovation against Patent Inflation http://swpat.ffii.org/ 79100 signatures against software patents http://petition.eurolinux.org/ {6} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: RMS - Harm from the Hague Date: Wed, 13 Jun 2001 13:52:33 -0400 (EDT) http://www.gnu.org/philosophy/hague.htmlHarm from the Hague - By Richard Stallman , June 2001- Europeans have energetically opposed and thwarted the attempt to introduce software patents in Europe. A proposed treaty, now being negotiated, threatens to subject software developers in Europe and other countries to U.S. software patents -- and other harmful laws from around the world. The problem is not just for programmers; authors of all kinds will face new dangers. Even the censorship laws of various countries could have globalized effect. The Hague treaty is not actually about patents, or about copyrights, or about censorship, but it affects all of them. It is a treaty about jurisdiction, and how one country should treat the court decisions of another country. The basic idea is reasonable enough: If someone hits your car in France or breaks a contract with your French company, you can sue him in France, then bring the judgment to a court in whichever country he lives in (or has assets in) for enforcement. The treaty becomes a problem when it is extended to distribution of information -- because information now travels normally and predictably to all countries. (The Internet is one way, but not the only way.) The consequence is that you could be sued about the information you distributed under the laws of *any* Hague country, and the judgment would probably be enforced by your country. For instance, if you release a software package (either free or not) in Germany, and people use it in the U.S., you could be sued for infringing an absurd U.S. software patent. That part does not depend on Hague -- it could happen now. But right now you could ignore the U.S. judgment, safe in Germany, and the patent holder knows this. Under the Hague treaty, any German court would be required to enforce the U.S. judgment against you. In effect, the software patents of any signatory country would apply to all signatory countries. It isn't enough to keep software patents out of Europe, if U.S. or Japanese or Egyptian software patents can reach you there. But patent law is not the only area of law that could wreak havoc if globalized by the Hague treaty. Suppose you publish a statement criticizing a public figure. If copies are read in England, that public figure could sue you under the strict U.K. libel law. The laws of your country may support the right to criticize a public figure, but with the Hague treaty, they won't necessarily protect you any more. Or suppose you publish a statement comparing your prices with your competitors' prices. If this is read in Germany, where comparative advertising is illegal, you could be sued in Germany and the judgment brought back to you wherever you are. Or suppose you publish a parody. If it is read in Korea, you could be sued there, since Korea does not recognize a right to parody. Or suppose you have political views that a certain government prohibits. You could be sued in that country, and the judgment against you there would be enforced wherever you live. Not long ago, Yahoo was sued in France for having links to U.S. sites that auctioned Nazi memorabilia, which is lawful in the U.S. After a French court required Yahoo France to block such links, Yahoo went to court in the U.S., asking for a ruling that the French judgment cannot be applied to the parent company in the U.S. It may come as a surprised to learn that exiled Chinese dissidents joined the case in support of Yahoo. But they knew what they were doing -- their democracy movement depends on the outcome. You see, Nazism is not the only political view whose expression is prohibited in certain places. Criticism of the Chinese government is also prohibited -- in China. If a French court ruling against Nazi statements is enforceable in the US, or in your country, maybe a Chinese court ruling against anti-Chinese-government statements will be enforceable there too. (This might be why China has joined the Hague treaty negotiations.) The Chinese government can easily adapt its censorship law so that the Hague treaty would apply to it; all it has to do is give private individuals (and government agencies) the right to sue dissident publications. China is not the only country to ban criticism of the government; as of this writing, the government of Victoria (Australia) is suing to suppress a book called Victoria Police Corruption on the grounds that it "scandalizes the courts." This book is available on the Internet outside Australia. Australia is a Hague treaty participant; if the treaty applies to such cases, an Australian court judgment against the book could be used to suppress it elsewhere. Meanwhile, works that criticize Islam have faced increasing censorship in Egypt, a Hague treaty participant; this too could be globalized by the Hague treaty. Americans may turn to the First Amendment to protect them from foreign judgments against their speech. The draft treaty permits a court to ignore a foreign judgment that is "manifestly incompatible with public policy." That is a stringent criterion, so you cannot count on it to protect you just because your conduct is legal where you are. Just what it does cover is up to the particular judge. It is unlikely to help you against broad foreign interpretations of copyright, trademarks or software patents, but U.S. courts might use it to reject outright censorship judgments. However, even that won't help you if you publish on the Internet, because your ISP either has assets in other countries or communicates to the world through larger ISPs that have them. A censorship judgment against your site, or any other kind, could be enforced against your ISP, or your ISP's ISP, in any other country where it has assets -- and where there is no Bill of Rights, and freedom of speech does not enjoy the same exalted status as in the U.S. In response, the ISP will shut off your site. The Hague treaty would globalize pretexts for lawsuits, but not the protections for civil liberties, so any local protection could be bypassed. Does suing your ISP seem far-fetched? It already happens. When the multinational company Danone announced plans to close factories in France, Olivier Malnuit opened a site, jeboycottedanone.com, to criticize this. (The name is French for "I boycott Danone.") Danone sued not only him but his site hosting company and domain name registrar for "counterfeiting of goods" -- and in April 2001 received a ruling prohibiting Malnuit from mentioning the name "Danone" either in the domain name or in the text of the site. Even more telling, the registrar removed the domain in fear before the court made a ruling. The natural response for French dissidents is to publish their criticism of Danone outside France, just as Chinese dissidents publish their criticism of China outside China. But the Hague treaty would enable Danone to attack them everywhere. Perhaps even this article would be suppressed through its ISP or its ISP's ISP. The potential effects of the treaty are not limited to laws that exist today. When 50 countries know that their court judgments could be enforced throughout North America, Europe and Asia, they would have plenty of temptation to pass laws just for that purpose. Suppose, for example, that Microsoft would like to be able to impose copyright on languages and network protocols. They could approach a small, poor country and offer to spend $50 million a year there for 20 years, if only that country will pass a law saying that implementing a Microsoft language or protocol constitutes copyright infringement. They can surely find some country which would take the offer. Then if you implement a compatible program, Microsoft could sue you in that country, and win. When the judge rules in their favor and bans distribution of your program, the courts in your country will enforce the judgment on you, obeying the Hague treaty. Does this seem implausible? In 2000, Cisco pressured Liechtenstein, a small European country, to legalize software patents. And IBM's chief lobbyist threatened many European governments with a termination of investment if they did not support software patents. Meanwhile, the U.S. trade representative pressured Middle Eastern country Jordan to allow patents on mathematics. A meeting of consumer organizations (http://www.tacd.org) recommended in May 2001 that patents, copyrights and trademarks ("intellectual property") should be excluded from the scope of the Hague treaty, because these laws vary considerably between countries. That is a good recommendation, but it only solves part of the problem. Patents and bizarre extensions of copyright are just two of many excuses used for suppression of publication in certain countries. To solve the problem thoroughly, all cases about the legality of distributing or transmitting particular information should be excluded from globalization under the treaty, and only the country where the distributor or transmitter operates should have jurisdiction. In Europe, people opposed to software patents will be active in working to change the Hague treaty; for more information, see http://www.noepatents.org/hague. In the U.S., the Consumer Project for Technology is taking the lead; for more information, see http://www.cptech.org/ecom/jurisdiction/hague.html. A diplomatic conference is slated to begin today (June 6, 2001) to work on the details of the Hague treaty. We should make ministries and the public aware of the possible dangers as soon as possible. Copyright 2001 Richard Stallman Verbatim copying and distribution of this entire article are permitted in any medium provided the copyright notice and this notice are preserved. {7} - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Subject: Report on Hague negotiations Date: Sun, 17 Jun 2001 17:37:23 -0700 The following is a report from the diplomatic conference on the Hague. The conference is supposed to be finished on Wed. Based upon what we know now, it seems as though the conference will produce a new draft treaty to replace the 1999 draft, but no final deal. Apparently there will be extensive brackets in the text. They are asked to set a date for the next and possibly final diplomatic conference. As some general comments, it appears as though most civil society issues are doing poorly at the conference. Here are a few points, followed by the more detailed report. 1. The delegates are completely uninterested in protecting speech, and there has been no national advocate to insert language in the Convention to protects speech rights. If anything, the fact that the convention will reduce free speech seems like a bonus to many delegates. 2. There is a recognition that the ISPs are put in a difficult spot (easy to sue, deep pockets, and assets in several countries), but there is no language to protect the ISP as a common carrier. 3. There is some controversey over the Article 4 choice of court clause, but the delegates will not even consider going back to the 1965 draft language that would limit choice of court clauses in contracts when: "it has been obtained by an abuse of economic power or other unfair means." 4. There is some sense the the treaty would be easier to do if intellectual property was excluded, but the content owners, particularly the music and movie industries, are very strong, and this is problematic. The general approach in several IPR areas (patents, trademarks and sui generis rights) is to provide for exclusive jurisdiction in the country of registration, and global enforcement of judgments. 5. Global enforcement of injunctive relief is in. 6. Consumer protection is getting weaker. The strong consumer protection clauses in the 1999 draft are dead, and being replaced with the much weaker provisions from the Edinburgh draft, which limits these rights to items purchased primarily for household or personal use, and even here they are not automatic. 7. There has been very little civil society involvement in the convention, and only consumer groups (TACD, CI and Beuc), CPT, the American Library Association and the Free Software movement have provided critical documents. The Hague secretariat refussed to distribute an America Library Association letter to the delegates, but does pass out numerious documents from firms and trade associations. Below is the more detailed report. Jamie ------------------ Subject: Update on The hague Conference Date: Sun, 17 Jun 2001 02:06:51 -0400 FYI: Article 4 Choice of court has been discussed briefly last week (6-8-01) but will will not be discussed again at this conference. The US asked for clarification on the meaning of the article. Would it be possible to invalidate forum clauses on any ground? If not (and it appears that it would not) to what extent the Convention should provide for courts to decline to give effect to forum clauses? On public policy grounds or by reference to national law? Article 7 Consumer contracts has been discussed once but the working group has met twice and will produce a new draft that would include options proposed at the plenary. The working group is chaired by David Goddard (NZ) but is well attended by the US delegation, Germany, Austria, Switzerland, and Danemark. There is somewhat of a consensus on where a consumer can sue a business and where and when a business can sue a consumer. There are no common grounds in regards to choice of forum clause and their validity. The working group is trying to draft a paper that would show the different ways to address the issue: declaration by state (and the political question of opting in or out), without the dclaration but in the grey area (no enforcement for consumer/business dispute). No official talk of taking all consumer contracts out of scope but informal discussion about it. The issue of whether the provision would apply to any consumer claim or only to contract claim is still on the table. It looks like we're still working on the Edinburgh version of 7. Consumer International is involved in the debate and will issue a statement on Monday. Article 10 has not being discussed officially but is of great concerns to consumers and businesses. The ISPs are trying to get some kind of protection while the content people are actively lobbying for enforcement of all sorts of torts. Article 11 on trust is also a consumer issue. As in article 4 there's the issue of the validity of choice of forum clause. The discussion is about adding something like:" shall not be valid if result of fraud, abuse, undue influence, or unconscionable conduct on the part of the defendant". I do not know trust law and need input but it looks like that would be reasonnable. However, there's little support for this kind of limitation! We'll have to see what happens to article 4. Article 12 Exclusive Jurisdiction, the patent and trademark question (copyright is still excluded from 12) has been discussed on June 13 in plenary and by a large working group chaired by Andrea Shulz of Germany. One side wants exclusive jurisdiction for validity and infringement in the place of registration, the other (most Europeans) wants infringement in a non exclusive jurisdiction. The two proposals cannot be merged at this point. There is also the incidental question: many delegates said that having an exception for incidental question that would allow a state to determine the validity of a trademark would be a derogation of principles of the territorial nature of IPR. For example the validity of a mark or patent could be *incidental* (when it's not about the infringement of the right) in a claim against a patent attorney that did not registered a right on time or in the case of inheritance of a right that was part of a dispute between two inherators. Nothing was concluded on the issue but some delegations are insiting that it should be discussed again while others refuse to even discuss it! There was a short discussion on the definition of a "court of a contracting state" for the purpose of this article since it could include *any* international or supranational court. Finally, one proposal included a "new" paragraph: "In this Article, other registered industrial property rights shall be treated in the same was as patents.." The meaning of "other" would be any registered right such as plant breeder, sui generis, traditional knowledge (when they might be registered" etc... Many delegates seemed very uncomfortable dealing with IP but the exclusion from the scope of the convention has not been discussed officially. Article 13 Provisional measures and protective measures (and Article 23A Recognition and enforcement of provisional and protective measures) For some delegates (Japan and the UK) the article is not necessary even if the device is important because of the enforcement issue. These measures are the most "flexible" by nature (a judge has to "invent" them) and it's difficult to accomodate all the different kind of provisionnal measures. However, if a minority wants to exclude these measures from the scope of the convention, a majority stated that they are needed and important. In some ways, the problem of enforcement could be dealt with putting it in the grey area or up to national law. If there is a consensus on provisional measures, a minimalist approach is sought by many delegations. The copyright experts (lobbyists) and the ISPs were on putting pressure on the delegations on this topic and nothing has been finalized. Many of these issues would be treated differently depending on how (Article 18) prohibited ground of jurisdiction and (Article 28) Grounds for refusal for recognition or enforcement are amemded. For example the ISPs would like to be added to the list of prohibited grounds so that in action in torts, service providers cannot be liable under 10. Article 1 Substantive scope would also play an important role in what articles end up covering. For example, at this time, delegations talked about including in subjects where the convention would not apply to "anti-trust or competition claims"as well as "administrative matters". Monday morning we will go back to consumer contracts, torts and intellectual property. The afternoon session will be a general discussion on the aims and purpose of the work. A final document is being prepared using the Edinburgh draft and proposals that are being made during the conference. Many articles will be in bracket (meaning still no consensus) and footnotes will include the many options. To give you an example, Article 7 (consumer contracts) has now--on the issue of forum clause-- Option 1, Option 2A, Option 2B, Option 2C and Option 3. I'll try to summarize the options in my next post. The general mood is gloomy at best but as a delegate said in plenary, "there's a lot of posturing at the moment but that will change next week!" The unofficial rumour is about whether it will be a scaled down convention and what should not be in. No consensus on that, of course. # distributed via <nettime>: no commercial use without permission # <nettime> is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime@bbs.thing.net ______________________________________________________ * Verspreid via nettime-nl. Commercieel gebruik niet * toegestaan zonder toestemming. <nettime-nl> is een * open en ongemodereerde mailinglist over net-kritiek. * Meer info, archief & anderstalige edities: * http://www.nettime.org/. * Contact: Menno Grootveld (rabotnik@xs4all.nl).