LibertyVoice

The response to the policytool that rTraction and I collaborated on has been overwhelming.  In its first week,  over 10,000 people have visited the sites and 1500 different companies have taken the first steps in creating a social media policy.  See rTraction’s post for more details of the response.
And the only thing we did to [...]

Sunday is March 14th, or 3.14, and thus Pi day.   Take a look at piday.org , or Wikipedia for more details.

This has been a remarkable two weeks for those tracking the Anti-Counterfeiting Trade Agreement, as the proposed treaty has begun to attract attention at the highest political levels.  The European Union has undergone the greatest change.  First, the identification of the transparency holdouts led to a unanimous EU position favouring release of the text.  This week, EC Commissioner for Trade Karel De Gucht stated: "I will see to it that at the next negotiating round, in April, the Commission will vigorously push its negotiating partners to agree to release the text."  This leaves the U.S., South Korea, and Singapore as the remaining barriers to full transparency.  Second, this week's European Parliament resolution places the European Commission on the defensive with respect to ACTA.  The negotiations will continue, but Europe clearly faces internal challenges in the ACTA process.

The U.S. response to the European developments came yesterday, as President Obama reiterated his support for finishing ACTA.  In comments on IP enforcement, Obama discussed the need to "aggressively protect" IP, pointing specifically to ACTA.  The reference to ACTA was clearly meant to send a strong signal that the U.S. intends to continue its push for a treaty. Indeed, the U.S. has not changed its position on anything with respect to ACTA - it is one of the lone holdouts on the issue of transparency and its negotiating position on the text itself has not moved much through almost two years of negotiations.  Consider the Civil Enforcement chapter, which was first proposed by the U.S. in July 2008 at the second round of ACTA talks in Washington.  The recent leak of the latest version of the chapter shows that practically nothing has changed:

Article 2.1 Availability of Civil Procedures
1. No Change
2. No Change

Article 2.2 Damages
1. No Change
2. No Change
3. Wording Change:
 

4. Change – transposed words

Article 2.3 Other Remedies
1. No Change
2. No Change
3. No Change

Article 2.4 Information related to Infringement

Change – Addition of words

Article 2.5 Provisional Measures
1. No Change
2. No Change
3. No Change

The U.S. position for the moment appears closer to "take it or leave it" with the bet that many ACTA partners will see little political alternative but to take it.

Heesob Nam reviews the South Korean experience with three strikes legislation that has been in place since July 2009.  The government reports thousands of initial notices that have been passed along by ISPs.  There have been no instances of using the subscriber termination power.

The Globe reports that the wireless sector is at the forefront of the government's foreign investment deregulation plans.  The issue was the subject of considerable confusion following mixed signals from the Speech from the Throne and the budget.

We’ve all been concentrating on the Sky v EDS case (on which there was a useful seminar from SCL and Intellect this week), but there was another recent judgment on direct loss and exclusion of liability, in a dispute over…

An Indian NGO filed a petition before the Bombay High Court seeking a blanket prohibition on websites that display any "material pertaining to sex." The justification for the proposed ban was that this material "is harmful to the youth of this country in their formative years." (Op. at 1).

The Indian Information and Technology Act (ITA) prohibits sexual content in a manner that might be seen as akin to American bans on obscenity.

Under Section 67 of the ITA, publishers can be sentenced to three years imprisonment for dissemination of any material "which is lascivious or appeals to the prurient interest" or "if its effect is such as to tend to deprave and corrupt persons" who are likely to read or see the material.

The Petitioner sought to have the court direct the Indian government to pro-actively shut down any websites containing sexually explicit themes. However, in rejecting the petition, the High Court ruled declared that the Court is a "protector of free speech to the citizens of this country." (Op. at 2).

The Indian Court did not go so far as to say such websites were protected speech in India. The court reminded the petitioner that if there were specific websites at issue, then they could bring a direct complaint under the ITA. However, the Court would not compel the Indian executive branch to begin a campaign of seeking out and shutting down sexually themed websites.

Anyone who followed the Green Movement protests in Iran is well aware of the importance of social media to the protesters.  Without Twitter, photo sharing, and other key information-sharing technologies, it’s hard to believe that the protests would ever have materialized, let alone in such numbers that the Iranian government couldn’t discretely crush them.  (By the way, if you’re interested in seeing the social media at work in the protests, I’d highly recommend checking out Andrew Sullivan’s blog The Daily Dish at The Atlantic.  Whatever your opinion of Sullivan and his politics, he and his staff have done an excellent job of aggregating the protesters’ Tweets, posts, and what have you.)

With the Iran protests in mind, the Treasury Department’s decision this week to loosen export restrictions on social media services to Iran, Cuba, and Sudan is really no surprise.  Indeed, The New York Times writes that the regulatory change has been in the works for a while.

The decision, which had been expected, underscores the complexity of
dealing with politically repressive governments in the digital age:
even as the Obama administration is opening up trade in Internet
services to Iran, it is shaping harsh new sanctions that would crack
down on Iranian access to financing and technology that could help
Iran’s nuclear and missile programs.

Critics have said these sanctions are leaky and ineffective, and some
say it makes more sense to spread digital technology, which makes it
harder for governments to restrict the flow of information within
societies, and to prevent their people from contact with the outside
world.

The Treasury Department’s action follows a recommendation by the State
Department in mid-December that the Office of Foreign Assets Control,
which is run by the Treasury, authorize the downloading of “free
mass-market software” in Iran by Microsoft, Google and other companies.

Although not expressly banned, offering this sort of media technology to Iran, Cuba, and Sudan was of sufficiently ambiguous legality that companies simply abstained from doing so.  Now they’ve gotten the green light, so hopefully they’ll start cranking out IM apps in Farsi and the like.  (Oh, and in case you were wondering about that other "Axis of Evil" nation, North Korea, and why it’s not on the list—the sanctions against North Korea don’t actually ban Internet technology.  Neither do the sanctions against Syria. Go figure.)

This certainly is a welcome change, as far as I’m concerned; it reminds me of nothing so much as when McDonald’s opened up restaurants in the Soviet Union.  Hopefully the desire for Tweets will bring the same sort of glasnost to Iran that the desire for Big Macs helped bring to the USSR.  (Obviously, this is a gross oversimplification; Big Macs didn’t bring about glasnost.  But I’m cautiously optimistic that the same capitalistic forces that helped cracked open the Warsaw bloc will now be turned upon Iran’s theocratic shell with similar results.)

Now, it’s highly unlikely that this regulatory change will hurt Western efforts to open up Iran, Cuba, and Sudan.  But will it actually help?  Rik Myslewski, writing for online IT mag The Register, expresses some doubts.

[T]he revised regulations don’t allow for a wide-open software
surge to the three-country Axis of Disagreeableness. The OFAC’s 21-page
ruling (pdf)
specifically states that licenses will be issued only on a case-by-case
basis and only for services and software "incident to the sharing of
information over the Internet".

And those exports won’t go to the minions of Mahmoud Ahmadinejad,
Omar Hassan al-Bashir, or Raul Castro. The new regulations prohibit the
export of software or services to those overlords, their governments,
or - in the case of the US’s Caribbean bête noire - to "a prohibited
member of the Cuban Communist Party".

In addition, the new regulations require that the software be used
only for services that are "publicly available at no cost to the user".

Further, Mr. Myslewski notes that Iran may be a special case.  In Iran, nearly half of the 66-million-odd population are Internet users.  As such, social media technology is highly likely to fall into the hands of lots of pro-democracy/pro-détente Iranians who can make use of it to organize and challenge the government.  In Cuba and Sudan however, the online population is decidedly smaller: only about ten percent each of Cuba’s 11 million people and Sudan’s 41 million are Internet users.  That’s a much smaller pool of potential protesters, both numerically and proportionally.  It’s far less likely that a Green Movement kind of protest, with sufficient numbers to challenge their government’s control, will foment in either nation.

Certainly, there’s less reason to believe that there’s the same opportunity for political upheaval in Cuba or Sudan that the Green Movement has taken advantage of in Iran.  Still, it’s hard to see any downside to the Treasury’s move—it seems all upside to me.  At worst, nothing changes.  At best, the Green Movement opens up Iran, and Cuba and Sudan get nascent reform movements of their own, all funded at corporate expense.  What’s not to like?

(Arthur Bright is a third-year law student at the Boston University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)

There has been a lot of controversy and debate over whether too many things are patentable, especially in the software and business method areas. 
Many thought the Amazon 1-click patent, which was under review, should not be valid.  The USPTO has, however, confirmed the patent.
Mike Masnick of Techdirt sums it up nicely, with links to further [...]

Many others already have written about the worrisome case of Professor Weiler, an NYU law professor who is being haled before a French criminal court to answer for the "crime" of hosting an academic book review that displeased the author of the book in question. I’ll add my voice to the chorus because Professor Weiler’s appeal for assistance (below) deserves the widest possible dissemination, and because the case is another object lesson on the importance of legal protection for intermediaries in preserving some modicum of freedom of expression online. 

When it comes to promoting a free and open environment for online speech, Professor Weiler may not be on the same level as Google, convicted in an Italian court for displaying a user-generated video, but he is nonetheless being targeted for hosting another’s speech, and his case could have a serious impact on sharing of academic expression online. If Professor Weiler can be held criminally liable in a foreign country for publishing this book review, I foresee a serious chilling effect on the willingness of others to provide an online platform for this important form of academic discourse going forward. As a precedent, it would put the editor in an intolerable position of choosing between censoring his/her colleague’s work based on nothing more than the complaining party’s say-so and facing expensive, liberty-threatening criminal proceedings in a distant locale.

It’s also a classic example of so-called "libel tourism," which some states have moved to address.  U.S. law provides robust protections in libel cases that other nations, including France, generally do not. I’d love input from readers in the comments about the specifics of French libel law, but the U.S. protections that come to mind in this scenario include protection for statements of pure opinion and the requirements of proving the statements were false and showing actual malice. Putting aside the First Amendment’s protections, under U.S. law the whole case likely would be thrown out because of Section 230 of the Communications Decency Act. Whether France recognizes any of these protections, there appears to be no meaningful mechanism for disposing of cases at an early stage in the proceedings based on the legal merits (not terribly surprising because the sharp common law distinction between pre-trial and trial is not recognized in many civil law jurisdictions). It’s hard not to posit that the complaining party chose to file a criminal complaint in France, where neither Professor Weiler nor she lives or works, in order to exert the maximum amount of pressure on him to take down the critical review. 

Background

Here’s the story (from our database entry, France v. Weiler): 

In September 2008, New York University law professor Joseph Weiler was
summoned to appear before a French Examining Judge in connection with
a complaint of alleged criminal libel made by Dr. Karin
Calvo-Goller, a senior lecturer at the Academic Centre of Law and
Business in Israel.  Professor Weiler will appear for trial before the
Paris Criminal Tribunal in June 2010.

Professor Weiler is the editor in chief of the European Journal of International Law and the affiliated book review sites, Global Law Books and European Law Books. In 2007, Global Law Books published a book review
written by Professor Thomas Weigend, Director of the Cologne Institute
of Foreign and International Criminal Law and Dean of the Faculty of
Law at the University of Cologne.  Professor Weigend reviewed Dr.
Calvo-Goller’s book, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents, and criticized it as an "exercise in rehashing the existing legal set-up" and "unproductive," among other things. 

In June 2007, Dr. Calvo-Goller wrote to Professor Weiler in his capacity as editor of Global Law Books,
requesting that he remove Professor Weigend’s review from the site. Her
letter detailed several perceived factual inaccuracies in the review,
claiming that it went "beyond the expression of an opinion, fair
comment and criticism" and contained "false factual statements which
the author of the review, a professor of criminal law, could not
reasonably believe to be true." It also claimed that "[t]he review is
an indirect insult to former ICTY and actual ICC
officials, defense counsel of the ICTY and ICTR, who took the time to
read and comment on previous drafts of the book."

In a response to Dr. Calvo-Goller, Professor Weiler declined to
remove the review, expressing his sympathy for Dr. Calvo-Goller’s hurt
feelings, but also pointing out the unorthodox character of the
request:

 I have seen all manner of reviews and from time
to time received letters from unhappy authors. In these long years of
experience I have never received a letter such as yours both in content
and tone. It departs from what in my view are considered common
conventions of academic discourse and academic publication.

. . . 

It is a very extreme request to ask for a
critical review to be removed. I could imagine acceding to such a
request only in most egregious circumstances of, say, bad faith,
conflict of interest etc. In reviewing a complaint such as yours the
task of the editor is not to engage in a de novo review, but to assess
whether the review falls into one of those extreme categories of
egregious unreasonableness.

After noting Professor Weigend’s distinguished professional credentials
and addressing each specific factual/substantive contention in turn,
Professor Weiler concluded that removing the review was not justified:

My conclusion from this preliminary enquiry is
that the heavy burden needed in my eyes to suppress a book review has
not been met. In fact not even a prima facie case has been made. I
found nothing to impugn the integrity or professionalism of the
reviewer and, independently of whether or not I share his opinions or
conclusions on your book, I must decline your request to suppress the
book review by removing it from the site. 

Professor Weiler also explained that he would forward Dr.
Calvo-Goller’s comments to Professor Weigend and would consider a
request by Professor Weigend, if any, to change the review.
Professor Weiler also pointed out the comment feature on the website
and suggested that it would be "perfectly in order for you to write a
comment which, after editorial approval, could be posted on the website
and seen by anyone who reads the review."

Professor Weigend declined to make any changes, Dr. Calvo-Goller
posted no comment, and Professor Weiler stood by Professor Weigend’s
decision. And that was that until Professor Weiler ended up before the French Examining Judge, who told Weiler that her role was purely formal and that the merits could only be addressed by the Criminal Court itself at trial, set for June 25, 2010.

Professor Weiler’s Editorial

Professor Weiler published a thoughtful editorial on the case in the most recent edition of EJIL, entitled "Book Reviewing and Academic Freedom," which reproduces his letters back-and-forth with Dr. Calvo-Goller in their entirety and gives his perspective on the matter. Displaying surprisingly little indignation and speaking with great eloquence, Weiler sums up well the threat to academic freedom this case poses:

Consequently, I am saddened by the actions of Dr Calvo-Goller. I believe that in the circumstances of this affair, her action of instigating a criminal libel case against me for refusing to remove the book review is misguided and inconsistent with the most fundamental practices of all academic institutions with which I am familiar and with traditional academic discourse. It is not for me to criticize the French legal system under which I will stand criminal trial, but I would simply emphasize that the fact of being referred to trial before a criminal court does not, unlike many other systems, carry the implication that any public authority in France has concluded that there is any substantive merit in the complaint brought by Dr Calvo-Goller. Rather, the referral by the state follows automatically from the Criminal Complaint filed by Dr Calvo-Goller.

I very much hope that we will prevail before the Criminal Tribunal of Paris. Any other result will deal a heavy blow to academic freedom and change the landscape of book reviewing in scholarly journals, especially when reviews have a cyber presence as is so common today. Even if we do, the very fact of being subject to a criminal process by French public authorities and having to undergo a criminal trial in these circumstances coupled with the heavy financial burden of defending such a case – expenses which are in large part not recoverable even if acquitted constitutes a serious chilling effect on editorial discretion, freedom of speech and the very important academic institution of book reviewing. When the dust settles it may well be worth raising the question whether the French law which so easily allows a private complaint to become a public prosecution well balances the various competing interests in cases such as this. We would hope to hear from our French colleagues and readers.

The Jurisdictional Wrinkle

What makes the case all the more disturbing is that, as Gilles Cuniberti of Conflict of Laws.net points out, France’s stake in the whole affair is rather limited. Professor Weiler lives/works in New York, Professor Weigend  in Germany, and Dr. Calvo-Goller in Israel (though she was born and studied in France and may be a French national). The book review was published in English for an English-speaking audience.

French law governs offences committed wholly or partially in France, so, according to Cuniberti, the issue is "whether a website accessible in France entails that alleged libel on
the site is committed in France for the sole reason that the site is
accessible there."  Seems like a pretty thin reed to hang the whole matter on, and Cuniberti writes that recent French case law suggests the answer may be "no," but nothing is impossible in the fantasy land of international Internet jurisdiction. And a tenuous connection is nothing new in libel tourism cases.

An Appeal for Assistance

Now, we finally get to the important part.  In his editorial, Professor Weiler appeals to readers for assistance in advance of the trial. I encourage CMLP readers with an interest in academic expression to write in support of Professor Weiler’s cause. Here’s what he has in mind:

a. You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com  Kindly
write, if possible, on a letterhead indicating your affiliation and
attach such letters to the email. Such letters may be printed and
presented eventually to the Court. Please do not write directly to Dr
Calvo-Goller, or otherwise harass or interfere in any way whatsoever
with her right to seek remedies available to her under French law.

b. It would be particularly helpful to have letters from other
Editors and Book Review Editors of legal and non-legal academic
Journals concerned by these events. Kindly pass on this Editorial to
any such Editor with whom you are familiar and encourage him or her to
communicate their reaction to the same email address. It would be
especially helpful to receive such letters from Editors of French
academic journals and from French academic authors, scholars and
intellectuals.

c. Finally, it will be helpful if you can send us scanned or digital
copies of book reviews (make sure to include a precise bibliographical
reference) which are as critical or more so than the book review
written by Professor Weigend – so as to illustrate that his review is
mainstream and unexceptional. You may use the same email address EJIL.academicfreedom@Gmail.com