[Nettime-bold] 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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