Three important trials [LWN.net]

This has been a busy week for courts worldwide; important issues have been heard on three different continents. For those who have not been following them all...

In the U.S., the ElcomSoft trial was finally held this week after having been delayed when the defendants were not allowed to enter the country. The defense has stressed constitutional issues and fair use, but the judge has not been interested. For example, ElcomSoft was not allowed to discuss legitimate uses of ElcomSoft's eBook reading software. As predicted, this case is working with a very tight reading of the DMCA, and it seems unlikely to go in ElcomSoft's favor. The trial will determine only whether ElcomSoft was in violation of the DMCA as it is written; any constitutional challenges to the DMCA will have to wait for the appeal. As of this writing, the arguments were complete, but the case had not yet gone to the jury for a verdict.

In Norway, Jon Johansen is standing trial for his role in the creation and distribution of the DeCSS software. The prosecution is trying to prove that DeCSS's purpose is to help DVD piracy; this despite the fact that real pirates have no need for such a tool. Attempts have been made to discredit Jon's defense by pointing out that he developed the code on Windows. This trial is still underway as of this writing. (See also: this account of the first day of testimony).

Meanwhile, in Australia, the country's high court has ruled that Dow Jones can be sued for libel in Victoria over an article published on its web site (in the U.S.). An increasing number of countries seem to believe that their laws apply to Internet activity anywhere in the world. If people can be hauled across oceans to face libel claims, they certainly can be made to face other sorts of charges - patent infringement or circumvention of copy protection, for example. This article in The Economist suggests that, in the future, publishers will block access to their material from countries with hostile libel laws. It would be a shame if distribution of free software had to be restricted in similar ways.

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Three important trials

Posted Dec 12, 2002 3:50 UTC (Thu) by rknop (guest, #66) [Link]

It would be a shame if distribution of free software had to be restricted in similar ways.

...especially since, at the moment, the USA appears to be leading the pack with it's patent and copyright laws behing hostile to free software.

Once upon a time, before the really insane export regulations were finally lifted, people who distributed cryptographic software (things like PGP) referred to the "Free World" as outside the USA. Given that they had some justification for doing this, we in the USA (who like to pride ourselves on Freedom) really should have been pretty embarassed. (I know I was.)

I sure hope the USA doesn't become a backwater, but the people making the laws (and the corporations and instustry assocations paying them to do it) don't seem to realize that that is what they're working towards.

-Rob

Regarding the Australian defamation finding

Posted Dec 12, 2002 6:15 UTC (Thu) by gdt (subscriber, #6284) [Link]

So you're suggesting that Australians defamed in an article should sue where the server is located? That would simply make US corporations untouchable. The US legal system is expensive for US citizens. How is it to be afforded by less wealthy people living half a world away?

Additionally, to quote the court: "a claim for damage to reputation will warrant an award of substantial damages only if the plaintiff has a reputation in the place where the publication is made". So most Australian citizens winning a defamation case would receive much smaller damages compared to a US citizen defamed to the same extent, even if they were as famous as Steve Waugh or Brian Henderson.

I'd also hazard a guess that a global "where the server is found" policy would also lead to some nations on the route of significant fiber capacity becoming defamation-free zones. With the result of all the world's news servers migrating there and no-one, not even US citizens, being able to correct slurs upon their character.

The High Court does know what the Internet is; it lead the way in making its deliberations available on the net. Their decision does note the negatives, so do read [2002] HCA 56 if you have the time. The decision wasn't ill thought-out, but rather it was a decision that necessarily had to be imperfect.

The Court also makes the good point that it's up to the parliament and international treaties to solve this problem.

[Just in case you're wondering. Steve Waugh is the captain of the Australian cricket team; he would be as well-known in Australia as Michael Jordan is in the USA. Brian Henderson has recently retired as the reader of the main news bulliten on Channel Nine. He would have a profile equivalent to that of Walter Cronkite.]

Regarding the Australian defamation finding

Posted Dec 12, 2002 8:49 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]

Should the Australians have more rights than the Chinese? Do you believe that the Chinese government should be able to haul anyone into their courts for the offense of saying, perhaps, that China unjustly persecutes dissidents? Why shouldn't the Chinese leadership be entitled to bring libel charges, according to the standards of Chinese law?

Your line about US corporations being untouchable if Australia isn't permitted to violate what, in other countries, are considered free speech rights ignores the fact that this will have far more impact on individuals who can't afford to defend themselves against charges brought by other countries. Corporations already have lawyers on staff and could treat such things as the cost of doing business; individuals would have to just shut up.

Please correct me if I'm wrong, but doesn't Australia follow the UK model of libel law, where the burden of proving that an alleged libelous statement is true is on the defendant, rather than on the plaintiff as in the US? If so, it would perhaps be better to just wall off Australia from the net than to allow them to apply their anti-Internet, guilty-until-proven-innocent standards to the whole world.

Regarding the Australian defamation finding

Posted Dec 12, 2002 15:07 UTC (Thu) by Dabuk (subscriber, #1507) [Link]

According to http://www.writersworld.tv/authors/libellaws.asp:

In the UK you do have to prove the the allegedly libellous material 1) has been published by the defendant, 2) Refers to the plaintiff and 3) Is defamatory.

It is then up to the defendant to prove that he had justification for saying what he did, which I suppose is what you're complaining about. But if someone has called you an adulterer, why should you have to prove that you're not in order to win damages? If someone makes an accusation, they should have to back it up.

I'm sure there are counter-examples, but then all I think that proves is legal systems cannot be perfect.

Regarding the Australian defamation finding

Posted Dec 12, 2002 16:07 UTC (Thu) by jamienk (guest, #1144) [Link]

If someone speaks what you claim are untruths or defamatory remarks about you, you can respond. The Internet gives you an unprecidented means of getting your side of the story out there. This is really a case of: the answer to bad speech is MORE speech, not censorship.

Why would a judge or jury be better suited at finding the TRUTH than the rest of us? Politics, ideology, and power stuggles get in the way in the courts. Unfettered access to ALL sides of a debate gives us a much better chance of forming our own opinion on a matter.

Regarding the Australian defamation finding

Posted Dec 12, 2002 16:56 UTC (Thu) by copsewood (subscriber, #199) [Link]

For most people libel is a game for the rich against the rich. Use of libel laws by the rich against the poor tends to backfire as in the McLibel trials. Therefore for most purposes free speech is a better defence. However, if rich people choose to defame me and have assets in the UK or anywhere else they libelled me with laws against libel, and other rich people choose to financially support my action against the libellous party then I will exercise my legal rights. I think most people would in these circumstances.

Regarding the Australian defamation finding

Posted Dec 12, 2002 17:01 UTC (Thu) by copsewood (subscriber, #199) [Link]

The Chinese wouldn't be able to extradite a foreigner for something which isn't a criminal offense where the non-Chinese person lives for something not covered by an extradition treaty. Extradition applies to criminal matters anyway, and libel is part of the civil not the criminal law.

Regarding the Australian defamation finding

Posted Dec 12, 2002 9:38 UTC (Thu) by bockman (guest, #3650) [Link]

I'd also hazard a guess that a global "where the server is found" policy would also lead to some nations on the route of significant fiber capacity becoming defamation-free zones.

OTOH, connecting to a web server is the cybernetic equivalent of traveling in another place. If I read in a site something libelous(sp?), how is this different from traveling in another country and reading the same thing on a news paper? Or, if you want a more close metaphor, how is it different from tuning on a broadcast TV channel from another country, and viewing the same things on my TV?

I'm not saying that the "location of the servers" should be the fundamenta rule in these cases. It is also important the citizenship of the authors and who initiates the action (putting stuff on a web server shoul be treated differently than, for instance, spamming people of another nation with e-mails).

Australian defamation ruling

Posted Dec 12, 2002 10:01 UTC (Thu) by beejaybee (guest, #1581) [Link]

"... publishers will block access to their material from countries with hostile libel laws. It would be a shame if distribution of free software had to be restricted in similar ways."

If we're talking about program code (as opposed to "software" intended to be "played" like music, video, ebooks etc) I find this hard to figure. Program code is neutral. Unless I write some program which displays "xxx xxxxxx is a XXXXXX" (fill in the x's with a name & attribute you consider offensive) - in that case that's clearly defamation/libel & you have a right to take action against me. If you can catch me.

But I think we're missing the point here. If some countries have laws which are in direct conflict with the laws of other countries, then it's going to be impossible for a global network to function without every user falling foul of a national law. This is clearly absurd.

Probably the best solution is for the internet to have its own government. The problem here is that, things being as they are, this would likely be dominated by the US and its big business interests. We would need to have strong guarantees written into the constitution of the "Internet State" to prevent domination by any particular power block.

Australian defamation ruling

Posted Dec 12, 2002 17:17 UTC (Thu) by corbet (editor, #1) [Link]

A number of these comments seem to have missed my point - it's been a difficult week, and I guess my writing is even worse than usual...

The point is this: countries are feeling free to extend their laws (not just libel laws) worldwide when the Internet is involved. Quite a few of these laws (i.e. the DMCA) carry criminal penalties. Do we really want the U.S. hunting DMCA violators worldwide (more than it already is)?

As for program code being neutral...a careful reading of the comments in the kernel source can turn up remarks that certain vendors would likely consider libelous, to say the least...

Australian Libel trial

Posted Dec 12, 2002 15:01 UTC (Thu) by copsewood (subscriber, #199) [Link]

To haul someone across an ocean without their consent requires an
extradition treaty and order, which will normally only apply to criminal matters in the country from which the perpetrator of a criminal offence is extradited. Libel is normally considered a civil not a criminal offence, so extradition seems unlikely. However, if a libellous organisation has assets in the country where the libel victim lives then clearly these assets are fair game.

The question of where the libel offence occurs seems to me more a client than a server issue. A libel victim is libelled where the libellous words are read and cause the most damage, i.e. for most potential victims this is in the country where they normally live and are known. I therefore agree that the Australian court has jurisdiction. I would take the same view if I as a UK resident and citizen were libelled by an unsavoury Australian owned media corporation (e.g. News International) with assets in the UK.