16 March 2004
The new Issue 8 of the International Journal of Communications Law and Policy is online, and there's some really, really solid scholarship in it, including pieces on the Internet in China, EU regulation of software and expression, the German approach to illegal Internet content, institutional structures in communications regulation, information convergence, and liberalization of telecom services in the WTO framework. Papers and reports from the European eGovernment Conference for 2003 make up a special eGovernment section of this Issue. There is also a conference review of WRC-03, and a book review of Manuel Catells's The Internet Galaxy.
The Journal main page is here, the current edition here.
11 March 2004
Making the US Congress look like a nice, left-leaning, consumer friendly body takes some doing, but that's precisely what the European Parliament has done with its vote on the piracy directive (the relevant portion begins at page 203 of the PDF). This has received a lot of coverage, but to my mind most of the discussion misses the point by totally underestimating what's going on. Four of the directive's provisions, when seen together with other recent developments, mark a shift in the law so profound that it has no parallel in recent times. Here's why.
First, the non-exclusion of consumers. The original draft specified in Article 2 that the Directive only applied to commercial piracy. By the time it was passed, this provision had been removed, and replaced with a recital which said that the Directive would not ordinarily have to be enforced against consumers acting in good faith. Yeah, right. As the drafters knew very well, in English law and most other legal systems a person who reasonably ought to have known that the material was copyrighted will never be acting in good faith in downloading the material without authorisation, even for personal use. This is so glaringly obvious that I wonder why they even went through the charade of making an exception.
Secondly, the remedies. Confiscation and destruction of any equipment used for infringement. Mareva injunctions and Anton Pillar orders for the asking against commercial infringers. A mandatory disclosure of all personal information known to anyone who's asked for it in the case of commercial infringers.
Thirdly, the position of intermediaries. Full interim relief available against any intermediary. No defences are stated to be allowed. Not even good faith. Non-compliance may be met with confiscation of equipment as above.
Fourthly, the role of third parties. Relief may be sought by professional bodies dedicated to the enforcement of third party rights, if they are generally recognised as such.
Now let's recontextualise this. Let's say that the European Parliament passed a law not about intellectual property piracy, but about thieves. People who're actually stealing tangible stuff, not just violating rights over intangible stuff. Should be less controversial, right? Except that if this directive were transposed directly to that realm, what we'd have would be something like this:
If a thief steals, his car can be confiscated and destroyed, because he drove to the scene of the crime in it. We can hire people who know how to do these things. We can freeze all his cash if he's been stealing a lot, and go into his house and grab all his property as security. We can even get the court to issue an order to all gas stations preventing them from selling him petrol. And all this is in additon to rights under criminal law.
How likely is it that such a law would be tolerated? Yet measures of protection that would be rejected out of hand for tangible property are being granted for intangible property. And it's this underlying attitude that's deeply troubling. Over and over again, the need for deterence is being emphasised. We're being told that the correct way for civil law to achieve its ends is through draconian punishment. But this is precisely the position our western legal systems have been moving away from for the past four centuries. Fundamentally, the idea is that civil law's goals are compensation and restitution, and the deterence of behaviour deemed undesirable by depriving the misfeasor of the benefits of such self-serving behaviour. Civil law should not resort to deterrance through punishment not aimed at compensation, nor will it condone vengence. With this directive, We've effectively thrown all this away, and gone back to a system that I can most charitably describe as mediaeval, and less charitably as something unprintable.
But this isn't the worst of it. As I said above, this directive marks a complete redefinition of how far the law can go to protect property holders, and how much property holders can do to those who infringe their rights. And it's not the only move in relation to bolstering the position of property holders. With the ever-continuing expansion of what is patentable, the unending extension of copyright duration, and the constant challenges to the idea of fair use, we're seeing an attempt to appropriate things that could never have been property in earlier times. The real problem isn't that we're not being given enough rights in relation to the new media. It's that our laws are taking away what few rights we've always had.
Dave Bolier drew some interesting parallels a few months ago in his excellent book "The Silent Theft", but the problem's much deeper than that. I don't see myself as being radical - I'm a commercial lawyer who became interested in the technology-related issues because of their importance to commercial law. But I'm still going to come right out and say it. I think that we're seeing the most drastic attempt to redefine property relations in society since the enclosure laws, and the most coordinated attempt to prevent challenges to existing producers since the corn laws. As then, basic notions of what measures the law is justified in taking are being redefined, and redefined in a manner that challenges fundamental principles of our legal system. In that society, immoveable property and agriculture were the focus. In the information society, intellectual property and multimedia are the focus. And I think the existing producers are winning for now, and will continue to win unless we take the kid gloves off and organise ourselves into a real, co-ordinated opposition.