<nettime> jamie love's reports on the hague conference [digest]

[t byfield <tbyfield@panix.com>]

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}
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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}
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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}
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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=national%20news&template=national&nkey=vp&filetype=fullstory&file=/cpfs/national/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-11D5-841900508BF9712A&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.stm

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}
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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}
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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}
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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}
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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.






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