Lex Ferenda

Hello from the BILETA (British and Irish Law, Education and Technology Association) annual conference at Glasgow Caledonian University in lovely, rainy Scotland. The conference (agenda, abstracts etc available here) is taking place today and tomorrow. I’m speaking about ‘Expression 2.0‘ tomorrow afternoon.

This morning, I popped into a talk by Dr. Carlisle George (Middlesex) on SABAM v Tiscali (very similar to our own EMI v Eircom case) and then to a session on privacy with Karen McCullagh (Salford) and Kevin Rogers (Hertfordshire). Karen reported on her research on perceptions of privacy among bloggers (also discussed here and just published in Information and Communications Technology Law, here), while Kevin discussed recent UK decisions interpreting (rather narrowly) the Data Protection Act : Durant v Financial Services Authority, Johnson v Medical Defence Union, Ezsias v Welsh Ministers, and looked forward to Common Services Agency v Scottish Ministers in the House of Lords next week. In the question-and-answer session, the discussion looked at privacy vs data protection, statutory rights and human rights, British v European approaches and more - stopping for lunch after a while, though!

We started the day with two provocative keynote addresses by David Wall (Leeds) and David Flint (MacRoberts, solicitors). David the First spoke about cybercrime and wondered in particular why there had been so few convictions; his ‘three generations of cybercrime’ were very useful (traditional, hybrid and ‘true’). He has a book on cybercrime and there’s more about all that in there. The second David spoke about social networking, privacy and more, in a very entertaining way, also raising interesting questions like the ‘responsibility to protect’ (users) that should be attached to sites like Facebook.

Not after this. Lastowka, who is writing a book on law and virtual worlds, shares his comprehensive list of law review articles on the topic. Lexis and Westlaw servers will crawl to a halt as half the cyberlaw aficionados on the planet go chasing the ones they haven’t read. Maybe we could have a competition for the number of articles that we’ve read. Or play match the author with the title. Or print them all out and see if they reach the roof. Anyway, teasing aside, it’s a great list, and the author is looking for additions or suggestions in comments or via email.

Alternative link.

Cheers

Not manhunt.net, although apparently they are “here 24 hours a day”. Manhunt (and in particular Manhunt 2), the video game that presumably missed out on getting the domain name they always wanted!

In one of those coincidences that I love, a few interesting things have just happened. The legal process has (probably) finished with regard to the release of said game in the UK (Eoin has a comprehensive post complete with links to the various decisions) and wonders if an appeal or resubmission is on the cards in Ireland (where, as you may recall, Manhunt 2 was the first video game to be banned in this jurisdiction by the - remarkably named given the context - Irish Film Censor’s Office)

Yesterday, then, the Eight Circuit Court of Appeal in the midwestern US affirmed a district court decision finding that part of the Minnesota Restricted Video Games Act preventing under-18s from renting or purchasing certain violent video games. Manhunt (the original) is one of those cited in the Court of Appeal’s decision. There’s a wonderful passage about violence :

In finding that the video games at issue (the specific contents of which are not described) were protected free speech, the Interactive Digital court described them as containing “stories, imagery, age-old themes of literature, and messages, even an ideology, just as books and movies do.” Id. at 957 (internal quotations omitted). Whether the court would have characterized, say, “Manhunt” in similar terms, we do not know. Granted, great literature includes many themes and descriptions of violence. See, e.g., Judges 4:21 (NIV) (“But Jael, Heber’s wife, picked up a tent peg and a hammer and went quietly to [Sisera] while he lay fast asleep, exhausted. She drove the peg through his temple into the ground and he died.”) Indeed, a good deal of the Bible portrays scenes of violence, and one would be hard-pressed to hold up as a proper role model the regicidal Macbeth. Although some might say that it is risible to compare the violence depicted in the examples offered by the State to that described in classical literature, such violence has been deemed by our court worthy of First Amendment protection, and there the matter stands.

As the particular causal relationship alleged by the State was not demonstrated to the court’s satisfaction, and strict scrutiny applied, the law did not survive. See the decision (Entertainment Software Assoc. v. Swanson) here (PDF).

Something I wonder about, by the way : the Irish legislation refers to a ‘video recording’ (which may be the subject of a ban) as follows : “video recording” means any disc or magnetic tape containing information by the use of which the whole or a part of a video work may be produced (s 1). Now, it strikes me that there may be some doubt over whether a download of a video game may be included in that - and the offence under the Act is in relation to the supply of a video recording (not possession). Would it be legal, then, to sell the software online and have the product sent as an attachment via email, for example? On the other hand, possession for the purpose of supply is an offence - would that be enough to capture it?

I enjoyed this article by Jeffrey Rosen in this weekend’s New York Times on the US Supreme Court and ‘business’ cases. Well, I didn’t really enjoy some of the conclusions, but the writing is good

Anyway, today’s exciting legal news is that the same court has accepted Fox v FCC (a challenge to the FCC’s new policy towards ‘fleeting’ expletives*), an appeal by the FCC (petition here) from the 2nd Circuit Court of Appeal’s finding that the new policy violated US administrative law (’arbitrary and capricious’ under the Administrative Procedures Act). They’re arguing that the 2nd Circuit’s decision is inconsistent with FCC v Pacificaand with standards of review under administrative law. Susan Crawford and Scotusblog and Slate’s new law blog, Convictions, all have more.

* Most famously, Bono, who said (and I quote): This is really, really fucking brilliant. Really, really great. Who will be saying that at the end of the case? Headline writers, start your engines.

Finally, tomorrow is the day for oral argument in DC v Heller, trying to figure out what the Second Amendment (the right to short-sleeved shirts) means. Marc Liberman at Language Log has a good post from an interesting perspective and Above the Law has a bit of fun with it.

Raise a glass (or the Legal Antiquarian’s Lawyer Stein) to the Irish! Happy St. Patrick’s Day from Dublin and from the legal blogosphere and welcome to this week’s Blawg Review, back at Lex Ferenda after a not-too-unsuccessful tryout for the team in Blawg Review #128. Of course it’s not just the week or month of that most famous of Welshmen, Patrick; the Ides of March are commemorated by What About Clients? and David Giacalone at f/k/a. St. Patrick’s Day is a public holiday in Ireland and in Northern Ireland; Life at Work (in New Zealand) weighs in with some amusing observations on holidays from work.

In Chicago (where, as you may know, the river runs green; no need to notify Patrick S. O’Donnell, who posted wonderful bibliographies on bioethics and on environmental and ecological worldviews at his new home on Ratio Juris, it’s perfectly environmentally safe), it seems that as reported by Rob La Gatta the American Bar Association’s “Beer for Bloggers” was displaced by the crowds of St. Patrick’s Day revellers. Well, they did hold the event in Kitty O’Shea’s…so this was fairly inevitable. But did the bloggers turn green? (More from the Common Scold). The show that they were all attending/drinking at was the ABA Techshow, which sounds like it was a great event; Technolawyer, next week’s Blawg Review host, has the full story.

St. Patrick’s Day, of course, is also a religious occasion (technically taking place on March 15th this year, causing some confusion; explained by Terahertz and Diamond Geezer and - ahem - the Home Brewing Blog). Catholic voices across Ireland and the world spent much of this week digesting the news that the Vatican has updated its list of mortal sins. The Law Librarian Blog has more, and Above The Law talks about Sins 2.0. Continuing with the religion-and-the-world theme, Paul Secunda at Concurring Opinions writes about religion in the workplace in a readable and intelligent summary of his recent paper on the topic.

St. Patrick is also the patron saint of engineers. His intervention might be necessary to assist poor Chis Avenir, an engineering student at Ryerson University in Toronto who found himself in a spot of bother for organising a Facebook study group. The certainly-Irish-Canadian Peter Ryan has all the details. Elsewhere in the diaspora, Ann Bartow at Feminist Law Professors reports on green bagels, green beer and a 5K green run. Other interesting posts there this week included a report on a conference on Working From The World Up, which sounds very interesting (more on this from Ann Althouse . Catherine O’Rourke from the University of Ulster (at the northern tip of this fair island) spoke at the conference on the topic of ‘International Feminism’.

The Irish blawgosphere is on the small side. Still, what we lack in quantity we try to make up in quality. Some particularly good pieces from the last week come from barrister Fergus O’Rourke (not a blogger or blawger) on insurance advice, Edward McGarr on discovery and, keeping it in the family, Simon McGarr (at tuppenceworth.ie) on the government Minister with responsibility for the ‘information society’ not liking bloggers all that much.

Irish techie eyes are not smiling, though, at the news that the major record labels are seeking a court order to compel ISPs to implement a particular filtering system to prevent ‘illegal downloading’. The Digital Rights Ireland blog has the full story and Jim Carroll has more. Another Irish case sparking interest across the globe is Goodfellas v Irish News, reported by Eoin O’Dell here (also discussed at Blurred Keys, The Fatalist, Salut! and the Illinois Business Law Journal; special points for the Simpsons reference in that last one) . Eoin also has a series of posts on the abolition of criminal libel and the progress of the Defamation Bill at his blog, cearta.ie.

Kevin O’Keefe wonders what the impact of law blogging is on the market profile of firms-with-blogs. Certainly, Irish firms like Matheson Ormsby Prentice, which this month celebrated being the only Irish law firm in the Irish ‘Top 50 companies to work for‘ list, might take notice. But the downside of large firms is discussed in this WAC post. And blogging lawyers must have seen their hearts skip a beat (and not in the good way) at the news that the formerly anonymous Patent Troll Tracker is being sued for defamation. Though, the clueless lawmaker of the week is in Kansas, and Eugene Volokh dismisses with ease an attempt to ban anonymous online speech. An extremely thoughtful overview of both Patent Troll Tracker and more general issues is provided by David (O’)Donoghue at Chicago IP Litigation.

Intrepid blogger of the week is Anne Reed, who found out all about the jury system in Japan. Could Anne possibly be Irish?? The endangered species that is the redhead (insert joke here if you must) is even celebrated in an Irish documentary airing this weekend.

Now, the big news out there is that Eliot Spitzer is governor of New York no more. And where to start? There’s some concern about the use of photos from MySpace; Balkinization imagines a future Supreme Court decision on this topic, Eric Turkewitz makes a connection with medical-legal issues, Scott Greenfield wonders what next, and some commenters have even been talking about the money. The wonderful ‘recovering lawyer’ and comedian Madeleine Begun Kane even commemorated the events with a limerick! And what if he seeks forgiveness?

So it seems unlikely that Spitzer will be marching (at least in an official capacity!) in this year’s St. Patrick’s Day Parade in New York City (his resignation is effective as of noon on March 17th). Such parades have of course given legal scholars a great case to write about, being of course Hurley v Irish-American GLB Group of Boston. Anyway, it does seem that Senator Hillary Clinton will be busy, and the people in New York will be led by sports commentator Tommy Smyth. In Ireland, we’ll be watching these New Yorkers, but also following journalist Shane Hegarty’s Spotter’s Guide. Irish politicians tend to head to anywhere but Ireland on St. Patrick’s Day (illustrated by Martyn Turner here; other famous Irish globetrotters may interest Blawg Review’s famous editor), but while they are away Damien Mulley will make hay with their disclosure statements (more here)

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

I will post some separate, lengthy comments about the Defamation Bill (which is - finally - passing through the Seanad today) later on or over the course of the week. However, something quite remarkable - and unexpected - happened in today’s proceedings. That is the question of the offences in Ireland of criminal libel, seditious libel and obscene libel.

The Defamation Bill, as drafted, and through Committee Stage in the Seanad, would have abolished these three (relatively obscure) offences, and replaced them with a new offence of the publication of gravely harmful statements. That would have been good, but not enough, as there would still have been a significant cirminal offence of the statute books. However, in an amendment (nos. 51 and 53) introduced by the Minister for Justice at this stage (only published this week), and debated quite speedily in the House, the sections relating to the new offence were removed; he argued that he was not convinced that it was appropriate to introduce a new criminal offence that would have such an impact on freedom of expression.

So on the topic of criminal offences, all that remains in the Bill is the abolition of the three offences (the full Defamation Bill 1961, which developed some of the offences in terms of penalties and procedures, is to be repealed in full anyway). The Minister did point out, though, that the ‘constitutional offences’ of article 40.6.1 (”the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law“), would still have to be dealt with, and that part of the 1961 Act might have to live on in order to provide for the sanctions for the constitutional offences. It was a short enough debate - Alex White (Labour) agreed with the Minister and Joe O’Toole (Ind) said that this would make Ireland a leader on this issue and would enhance the standing of the Minister in criticising criminal libel laws in more repressive states.

The context for the original proposal was the report of the Legal Advisory Group on Defamation of 2003, where they said (at para 59) that they

… endors(ed) the recommendations of the Law Reform Commission concerning the desirability of abolishing the common law offences of blasphemous libel, obscene libel and seditious libel. This is in a context where the Group has formed the view that matters such as blasphemy, sedition and indecency should not be dealt with in the context of a defamation statute even if they should be criminalised in their own terms in another statutory vehicle. (PDF)

but proposed the ‘publication of a gravely harmful statement’ offence (paras 60-61) while abolishing criminal libel. Earlier, as they said, the Law Reform Commission had also recommended abolishing the offences of seditious libel and obscene libel and maintaining but reforming ‘the common law offence of defamatory libel’, with a series of alternatives being set out regarding blasphemous libel. The LAG also mentioned, as you see, blasphemous libel (for abolition), although the Bill doesn’t points to this specifically in the repeal of common law (though repealing the Act of 1961, I think, would do some of this in practice anyway). The Bill, as it emerges from committee later tonight, will without further amendment provide for

• the repeal of the 1961 Act including Part 2 dealing with various criminal offences
• the explicit repeal of “the common law offences of criminal libel, seditious libel and obscene libel”
• no provisions on a new offence of the publication of gravely harmful statements
• no specific mention of blasphemy or blasphemous libel other than the repeal of s 13 (as part of the general repeal) of the 1961 Act (though I think that might mean that, especially in conjunction with the Constitution, blasphemous libel - or blasphemy, indeed - would continue to exist - but see note below on the definition of criminal libel)

And that, I believe, is good news.

(Additional notes on blasphemous libel after the jump)

Read more »

The Rest Is Noise by Alex Ross has just been published in the UK (and received the National Book Critics’ Circle award for criticism this weekend. It’s a lengthy survey of 20th century ‘classical’ music, with a lot of mini-biography and history thrown in. The approach is social history rather than music theory, I suppose, so don’t expect to see crochets and quavers!

I got a copy of the US edition for Christmas and I read it slowly over the course of about a month, and enjoyed it; seeing the reviews this week is therefore very interesting. The Observer says that it is a “vital, engaging, happily polyphonic book” but takes some shots at the US-centric nature of some aspects that resemble a Bush-style ‘messianic imperialism’. On An Overgrowth Path (a must-read music blog) talks about the book and links to BBC Radio 3 coverage. I think it’s a wonderful book; in my view, the last couple of chapters are too rushed (we chug along happily and then around the mid-50s the speed takes off and then we’re done, and a little more about music technology would have been very appropriate. Footnote fanatics note: 100 pages of small-print notes that I’m still getting ideas from, although you’d expect no less from the New Yorker’s music critic!

Anyway, Ross has a long-running blog and has been posting video links, audio clips etc ; you could lose yourself for hours in this site, and then when you’re finished, subscribe to the blog too…

Today’s news about the case being brought by a number of Irish record companies against Eircom (the former State-owned telco and still a very significant player in voice, broadband and other services) is unexpected in terms of its timing, I suppose, but also long ‘overdue’ in that it has been discussed and wondered about for some time. Of course, we have (muddy) history on musicos v ISPs when trying to get subscriber data but this case is different - it’s the ISP itself that is the sole defendant.

Discussion at the Irish Times (breaking news) here, and more from RTÉ here, and reaction from Jim Carroll (great music journalist at the Times) here. In this post : introduction, making available, filtering, IP rights enforcement and other comments. In particular, I think that Article 15 of the EU’s E-Commerce Directive (2000/31) is of some significance, and I explain why below. Please add your own knowledge and let’s see if we can get a handle on what’s going on…

INTRODUCTION

First of all, what’s happening? Well, so far we only have press reports to go on, but they seem to be seeking orders under the Copyright and Related Rights Act and claiming that Eircom is ‘making available’ music protected by copyright law. I think they’re referring to downloads via Eircom connections rather than Eircom hosting music on its servers. The industry asked Eircom to put filtering software on and Eircom said no thanks. Eircom’s defence appears to be (according to its lawyers) that “the company was not on notice of specific illegal activity that infringed the rights of the companies and had no legal obligation to monitor traffic on its network.”

INFRINGEMENT OF COPYRIGHT LAW

Let’s look at that making-available thing (a standard concept in copyright law and is section 40 of the Act). Now, that is defined as including via the Internet - so chalk one up for the recording industry - but there are specific provisions for intermediaries :

(3) Subject to subsection (4), the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
(4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.

That seems to presume that notification is the issue (it doesn’t say “has notice” which might allow for constructive knowledge to be pleaded; it says “is notified by the owner” which I would argue is more favourable to the ISP).

The Supreme Court of Canada dealt with this question in a landmark decision in 2004, SOCAN v CAIP (music publishers vs ISPs!). The question that interests me here is whether the ISP is liable for works communicated to the public through its networks; in a famous and influential passage, Binnie J said :

Section 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme. It finds its roots, perhaps, in the defence of innocent dissemination sometimes available to bookstores, libraries, news vendors, and the like who, generally speaking, have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel [various citations of libel cases!]

Binnie went on to say that “So long as an Internet intermediary does not itself engage in acts that relate to the content of the communication, i.e., whose participation is content neutral, but confines itself to providing “a conduit” for information communicated by others, then it will fall within s. 2.4(1)(b)” and then pulls together everything from recent WIPO statements (”the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of [the WIPO Copyright Treaty or the Berne Convention]”) to 19th century telegraph law (”the owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said … to transmit a message of the purport of which they are ignorant”).

FILTERING

On the suggestion of filtering etc, I think that there is a serious and significant issue here from the E-Commerce Directive (ECD) of 2000. Three articles deal with exclusions from liability for conduits, cachers and hosts in terms of the general law, subject to certain exclusions (the most important being notice) and the power of a court to require “the service provider to terminate or prevent an infringement”, which is qualified clearly and importantly in Article 15:

1. Member States shall not impose a general obligation on providers, when providing [in essence, ISP, caching or web hosting services], to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

Now I think that an Irish court forcing Eircom to engage in the type of filtering that the music industry appears to be asking for (again with the proviso that I haven’t seen the pleadings, if they exist, so I’m going on press reports alone) would potentially be inconsistent with the Directive. What do you think? I’m reaching this conclusion independently of the Promusicae case (where the difficult question of disclosure of subscriber data in connection with IP law was discussed by the European Court of Justice) although I’d add that some of the comments in Promusicae about harmonisation of rights including Charter of Fundamental Rights rights could certainly be interesting in this context).

IPRED

Favouring the recording industry, we have the provisions of the IP Rights Enforcement Directive of 2004, which sets up various civil remedies (injunctions etc); our transposition was very minimalist as a lot of this is already in Irish law due to common law (Mareva injunctions, etc). I’m not sure whether this will have an impact but I suspect it might be a factor.

OTHER

Oh, and Jim Carroll also wonders why it’s the record companies and not IRMA. Off the top of my head, I think the answer is that it’s probably easier for them to do it (the head of IRMA is head of one of the record companies involved so they’re clearly on message, it’s not a split or breakaway) as they wouldn’t have to get involved in a preliminary issue about legal standing in the court - the record companies not IRMA ‘own’ the relevant rights and therefore they are the most convenient legal entity to bring the suit.

Regular readers and casual visitors alike might be interested in this - I’ll be hosting the wonderful Blawg Review next Monday (17th March - you can guess why!). The Blawg Review covers blogs about law, and all submissions are welcome, but blogs/posts with a specific connection with Ireland or topics that one would associate with this fair island (try not to have them all about alcohol, mmmkay?), would be particularly useful. My Blawg Review #128 of last October was great fun to put together, and I’m hoping for loads of interesting submission for the second attempt.

To submit a post of your own, or an interesting post that you’ve seen, please follow the submission guidelines here. Follow the link and use the online submission or email the specified address and I’ll receive it immediately.

I haven’t quite got used to this yet, but as of today the EU and North America (US/Canada - but not Mexico) are in the odd out-of-sync period of the year. Ireland is typically five hours ahead of the “Eastern” zone in North America (that is, the east coast of the US and most of Ontario and Quebec in Canada), and historically this has been reliable all year round except for a week in March due to different ’start dates’ for summer time (we started last weekend in March, they started first weekend in April) - with a (usually) common change-back date at the end of October.

However, changes to US law (in the Energy Policy Act 2005) and changes in Canada to keep things in line with the big sibling to the south (to my amusement, time zones are a matter of provincial - not federal - jurisdiction in Canada!) came into force last year; under the new system (designed to reduce energy costs, apparently) summer time (what they call daylight saving time) now begins on the second weekend in March and runs all the way to the first weekend in November.

So from today until Sunday 30th March, the difference between Ireland and the eastern zone is four hours, not five. For all you politics-watchers and sports-watchers, in particular, this means that you will miss whatever debates, programmes or fixtures you want to see if you don’t remember this and intend on watching live via the intertubes.

There’s something quite sad about talking about summer time on the day that Dublin has a major storm warning issued and some city roads will be closed off tonight and tomorrow due to the fear of serious flooding from the Irish Sea…