The courts as buffers
p2pnet.net News View:- Studies by ‘Courts rule that ISP’s aren’t obliged to hand over ID’s to the rightholders’.
That’s just my headline. But on closer inspection, one can spot a trend: Judges are giving out signals, but opposing sides are interpreting them differently. Nor is the signal being given by the courts especially directed at “pirates” or the music industry.
Canada, 19th May 2005
Canada’s Federal Appeal Court rejected the request of the CRIA (Canadian Recording Industry Association) to force ISPs to hand over client ID’s, but at the same time gave the music industry instructions on how to get file sharers next time. "The decision gives us the blueprint we need to proceed," said CRIA president Graham Henderson.
But the Canadian court ruled: "Modern technology such as the Internet … must not be allowed to obliterate those personal property rights which society has deemed important. Although privacy concerns must also be considered… they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode these rights."
The court showed too little consideration for the fundamental right of privacy, as laid down in the Universal Declaration of Human Rights (art.12). Instead, it sided with the corporate interest on Intellectual Property. The justices should have been more careful in weighing human rights against property rights.
Just as Abraham Lincoln said: “Whenever there is a conflict between human rights and property rights, human rights must prevail”.
Nevertheless, the court has given itself the space to reconsider their position next time around.
Germany, 17th May 2005
The higher court reversed the lower court’s decision because there was no legal basis for an ISP to hand over ID’s. The lower court – which was overturned- acknowledged this fact but argued that the basis was implied, given the nature of the offence.
The higher court ruled that, while there’s a legal basis to "remove and block" illegal content, this doesn’t extend to divulging information. Lawmakers are aware of the status quo and are readying legislation to close this gap.
This gap isn’t covered by the EU e-Commerce directive that Germany has implemented.
The Netherlands 19th May 2005
Brein and ISP’s defender C.A. Thijm (ex-Kazaa Lawyer) are arguing [lang: dutch] the relevance of the German court’s ruling, but are missing the point.
Kuik, the head of Brein, pointed towards the fact that the German case focused on FTP and not p2p. However, if you read the German case thoroughly, that’s not the deciding factor in this matter.
But Dutch courts have a tendency to follow German reasoning, considering both are bound by the same e-Commerce directive.
But there’s more, as Thijm previously pointed out and what the german courts admitted: there’s no legal basis for demanding ID’s. There’s currently the Lycos vs Pessers case heading to the Dutch Supreme Court expecting exactly this same verdict.
Thijm is pushing for a full court hearing instead of the speedy trial Brein was hoping for. This is seen as a delay tactic, but it also gives the courts time to assess their views in light of the expected Supreme Court decision.
The Signal
In short, the courts and ISPs are buffers standing in the way of the full-blown Sharing vs Copyright battle in the courts.
At this point, the judges can only spot gaps and rectify their mistakes on a case by case basis. And that’s how it should continue to be for the moment..
Bottom line?
The courts are slowing things down to a pace so everyone to catch their breath.
Copyright 2.0 will be a slow but steady process. Considering the speed of innovation, Legislation would be a "shoot first, ask questions later" approach that will backfire —– even if the legislation is pro-sharing.
Raymond Blijd – fk2w
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May 20th, 2005 at 4:11 pm
“Modern technology such as the Internet … must not be allowed to obliterate those personal property rights which society has deemed important. …they must yield to public concerns for the protection of intellectual property rights”
May I ask what kind of twisted mind comes up with this utter drek?
Intellectual property as a concept is an EROSION of personal property rights! It takes what used to be someone’s personal property and PREVENTS them from truly owning it by placing government mandated controls upon it.
Rather than being classified as “personal property rights”, let’s call copyright what it is: a “government entitled” wealth distribution program.
Like welfare’s evil twin, copyright takes property from the hands of the poor and places it into the hands of the wealthy (yes yes i know there are exceptions, but the VAST majority of IP is ‘owned’ by huge conglomerates)
These politicians, in their rush to save those poor filthy rich fat cats, have lost sight of why there were huge limitations in copyright in the first place: copyrights overlap personal property rights of individuals.
If you claim copyright is an inalienable right, then individual property rights MUST suffer in order to hold to that claim, and that is unacceptable by modern standards of capitalism and human dignity.
May 20th, 2005 at 5:06 pm
I agree with you that PCT (Patents, Copyright, Trademarks and related rights) should not be thought of as property by laypersons. Many lawyers know what is meant by suggesting that PCT is a form of property, which only refers to the fact that it can be bought-and-sold, not that it should be thought of in the same terms as physical/tangible property.
That said, I still believe we should recognize these things as rights…
See: http://www.un.org/Overview/rights.html
“Article 27.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
What we need to realize as a society is that as communications technology and the ability of humans to communicate changes, so must the laws in order to protect the rights suggested above. The industry associations and self-called “creator” lobby groups from the old pre-Internet economy (the Industrial broadcast/publisher era) are simply not wanting to advance with society, so do not misinterpret what they are doing as recognizing the balance between 27(1) and 27(2), but as people who oppose both.
Suggesting that 27(2) means that the first-author should have absolute control over any future use of their work is in complete opposition to a rational meaning. “Creativity builds on the past, and the past always tries to control the creativity that builds upon it” — protecting the rights of creators *MEANS* limiting the control that the past has on future creativity.
May 20th, 2005 at 6:48 pm
I really wish that second point on article 27 would be respected a lot more with anime.
US releases of anime are often inferior and chopped up, a complete spit in the face to the creators of the title as well as the fans who want to see the work as originally created and in the highest possible quality.
May 20th, 2005 at 7:01 pm
FYI: The full argument by the Canadian court is on page 22 section 41 http://www.cippic.ca/en/news/documents/19May2005Ruling.pdf