Quickthink

Whether ACTA was reasonable or not is no longer an issue. The European Parliament yesterday voted to reject it. And the vote was crushing - 478 to 39. As prominent Pirate Party founder Mr. Falkvinge gleefully reports, this kills off the possibility of making ACTA a global legal tool for IP rights holders.

And what to make of it?  I think the longer term trend is becoming clear. The fight against piracy is looking more and more like a power grab by Hollywood. What was not questioned (pre SOPA) is now more routinely questioned. I would expect that this questioning will intensify.

Not all would agree that these questions are well aimed. Copyright and Technology, for example, offers a long post arguing that popular acceptance of downloading musical content without paying for it is an attack on its underlying value as a product. He bases this on a case study - and exchange between a musical artist and a music fan. He argues that the question is not whether to fight piracy but how to do it. This is an argument that was taken for granted not too long ago. No longer.

FOLLOW - Bobbie Johnson writes at Giga that not all would agree that ACTA is dead.

2d FOLLOW -  And why do I think that questioning will intensify? The perception is growing that Hollywood, using US government resources is going too far in its piracy fight. To get a sense of this, consider the O’Dwyer extradition case. Mathew Ingram tells the story for giga. Should the US government be making such a big deal about this? In the old days, few would have noticed. Now more are. And more are scratching their heads wondering whether the US government should be so aggressive. That is the trend that I see.

3rd FOLLOW -  NYT reports on the EU Parliament vote. I find it fascinating that the main complaint from treaty proponents is that their work was misrepresented.  From US Trade Representative spokesperson Carol Guthrie

It is unfortunate that there has been so much misrepresentation of ACTA, because its language explicitly preserves free expression and privacy while fighting commercial-scale intellectual property theft. There continues to be a need for international cooperation on these issues, and the ACTA can still serve as a valuable forum through which countries can coordinate to stop counterfeit trade and piracy.

I don’t think that this addresses the real problem that this vote symbolizes - right or wrong, trust has been broken.

4th FOLLOW -  Wired comments as well on the vote. An interesting comment there - the Obama Administration has invested a significant amount of political capital in the ACTA process. Hmm … time for a re-think?

Groklaw reports on a recent ECJ decision in SAS v. WPL. The court held that

you can’t copyright a computer language or computer functionality

Bravo! I suppose Oracle would not agree as they are trying to enforce such alleged rights against Google.  That case, pending in California, is with the jury. Oops! The judge has asked for supplemental briefing in light of the ecj decision.

If you want to learn more about the SAS case, here are a few links

Wikipedia background

A video on the significance of the case from ECIS

A short case note from the IT Law community

 Pam Samuelson’s American perspective for Kluwer

Search Engine Land offers an interesting article about a legal claim in Belgium brought by Belgian papers against Google.

Qt is starting up 2 pages today that will compile some “tracking”  links and info - They will remain on the right side of the page until their shelf life expires.

McLaughlin Reports- Paul McLoughlin’s humorous links to some rather odd happenings on the US political front

Digital Copyright Enforcement -  Are new remedies needed to protect copyright holders from illegal downloading from the internet? QT Will track articles, news stories etc. discussing the issue.

The Dance, From Tony Pavone Studios where you can find some other very cool images.

Here are two quick quotes that give very different perspectives on whether content owners should rely on copyright to police distribution of their stuff — or benefit from letting it go.

First a comment to a post on A VC

Publishers are now allowing ( and if they’re smart, actively pushing) more content to be copied, embedded, or uploaded onto 3rd party domain distribution channels like youtube, facebook, and friendfeed. As this trend increases and as reblogging large chunks or entire copies of this content becomes more popular, tools for tracking the movement of the content you publish across domains becomes more important.

Second, a quote from economist Olivier Bomsel in an article in EI Observer (on the European Parliament’s rejection of the three strike proposal — that would automatically disconnet people from the internet if they have vioalted copyright 3 times — errr — a French idea)

“It’s time to raise the cost of piracy for users … Consumers had become accustomed to not paying for content in the “first phase of the internet” and that now, in its second phase, they had to learn that content has to be paid for.

And the title of my post? It is a twist on a quote from my old buddy Check Lipton who said “A contract? It is just an invitation to the dance.”

Headline - Mediaset sues YouTube. 

Headline - Iran blocks Caspian Pipeline Plan, Cheney snubbed in Azerbaijan 

The ECJ just issued an important judgment in the Kadi case. EU Law Blog gives a nice overview of the judgment with links to all relevant documents so I will not go into any details here. It is sufficient to note that the case tested an EU regulation on freezing assets of persons and institutions that the Security Council claims are linked to terrorist activities.

 Setting aside the “terrorism context”, the issue was whether a council regulation should be annulled on the grounds that it violates fundamental rights.

Of course it sdould, right? Well …

After a rather long trail of reasoning, the CFI concluded that it should not because the regulation merely implements obligations placed on member states pursuant to international law, which European courts have no power to challenge (even indirectly). Sorry, Kadi et al! You have no rights!

Is the CFI right????

The ECJ concluded that it should because the regulation violates fundamental rights that the European legal order must protect — regardless of why the regulation was enacted. Oops! Errr … Sorry Kadi et al! You actually do have rights!

Good job. So why didn’t the CFI get it?

For QuickNews for September 2, 2008 just click here!  

Over the summer, the ECJ issued a judgment in Dieter Janecek v. Freistaat Bayern, Case C-237/07 which may have some interest to lawyers who follow how administrative law remedies are evolving pursuant to European law.

In this case, Janecek (a Munich resident) argued that a Council Directive (96/62/EC on ambient air quality assessment and management) gave him the right to require local authories to draft an action plan to lower air pollution levels. The German appellate court asked the ECJ whether the directive might be directly effective. The ECJ found that it was — to the extent of the requirement to draft an action plan. Here is the operative language from paragraph 36 of the judgment

… the Court has consistently held that individuals are entitled, as against public bodies, to rely on the provisions of a directive which are unconditional and sufficiently precise (see, to that effect, Case 148/78 Ratti [1979] ECR 1629, paragraph 20). It is for the competent national authorities and courts to interpret national law, as far as possible, in a way that is compatible with the purpose of that directive (see, to that effect, Case C‑106/89 Marleasing[1990] ECR I‑4135, paragraph 8). Where such an interpretation is not possible, they must disapply the rules of national law which are incompatible with the directive concerned.

This right attaches even though German law may give an even stronger right to Mr. Janecek, namely to enact specific measures to reduce pollution . Paragraph 40 sets forth

The fact that those persons may have other courses of action available to them – in particular, the power to require that the competent authorities lay down specific measures to reduce pollution, which, as indicated by the referring court, is provided for under German law – is irrelevant in that regard.

So what should go into the plan? Based on the “broad language” of the directive, the ECJ found that there is considerable discretion (so much so that some argued that the directive should not be interpreted to impose any directly effective obligation at all). But — there is a limit to the discretion. Here is the operative language from Paragraph 46

It must be noted in this regard that, while the Member States thus have a discretion, Article 7(3) of Directive 96/62 includes limits on the exercise of that discretion which may be relied upon before the national courts (see, to that effect, Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 59), relating to the adequacy of the measures which must be included in the action plan with the aim of reducing the risk of the limit values and/or alert thresholds being exceeded and the duration of such an occurrence, taking into account the balance which must be maintained between that objective and the various opposing public and private interests.

Some interesting thoughts emerge. First, the directive is directly effective even though local authorities have broad discretion. Interesting, but ok, is it just an affirmation of a formal requirement that has no “teeth”? We might think for a moment … what if the action plan that emerges does not incorporate any analysis of the so called stronger German law requirements? Hmmmm…

FOLLOW - A rhetorical policy question - Which would more efficiently promote policy implementation - requiring plans or strengthening remedies?

For QuickNews for September 2, 2008 just click here! 

It’s great to see that EU Law Blog is back with nice reflections on the work of European institutions. I read through the latest post on Case C-296/08 PPU Santesteban Goicoechea where the ECJ handled an urgent request for a preliminary ruling. Here are a few highlights:

1. This is a useful read for those who have not reflected very much on the nature of the ECJ’s jurisdiction in criminal law matters. The Pupino judgment (some years back) woke up the more sleepy of us to consider how the Framework Decision affects criminal procedure. By now, there should be a general understanding of this. Errr… right?

2. The analysis of the EU arrest warrant and extradition issues clarifies that these legal tools may not be very user friendly— the Spanish authorities got it wrong twice, and their third try led to the request for urgent review.

3. Would some training materials based on this case be useful for authorities who deal with such issues on a regular matter? I think so.  

FYI 

Another great post by Fred Wilson reflecting on constraints and rules that intrude on providing web services. A good part of the post relates to expensive music license fees — and Nikhil posted some nice links to Burman Stemra on European issues. Here are the links:

Buma/Stemra issues Beatport.com a Pan-European License

European Commission Decision on RTL/Music Choice complaints against CISAC.

QT will follow up on the above after some deep thinking. It’s nioce having smart friends.

Just when the weather got nice, the politics got ugly. First the Irish rejected theLisbon Treaty. Now the Polish President won’t sign it. Nor will the German President until the German Constitutional Court has a look at it. NYT gives a brief overview.

Ah well. There are some advantages to taking politcs out of policy making. The disatvantage? When politics happens, things get very strange.