Month: July 2011

Let the law save whistleblowers, not silence them | Nick Cohen | Comment is free | The Observer

“To be happy means to be free and to be free means to be brave,” Pericles said in his oration for the Athenian war dead. The ancient Greeks treasured parrhesia, which can translate as “free speech” or “all speech” or “true speech”. Whatever version you prefer, it always carried a notion of courage with it.

The 20th-century French philosopher Michel Foucault developed the theme and argued that speech was only free when the weak used it against the strong. In parrhesia, the speaker chooses “truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery and moral duty instead of self-interest and moral apathy”. On Foucault’s reading, the worker who criticises his boss uses parrhesia. The boss who shouts down his worker, does not. The woman who challenges religious notions of her subordination is a parrhesiastes. The clerics who threaten her with ostracism or worse are not. In the Chinese legend, the mandarin who knows he must contradict the emperor orders carpenters to build him a coffin and takes it with him to court. Pericles would have approved.

We like to think of ourselves as speakers of truth to power.

via guardian.co.uk

Nick Cohen’s argument for whistleblower protection proceeds from a classical argument for freedom of expression.

Intermediary liability: because you’re worth it (L’Oreal v eBay) | TechnoLlama

Dealing specifically with the issue of intermediary liability present in the e-commerce directive, the ECJ declares:

“6. Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored.

The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them.

Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31. “

This is a very interesting test. If an Internet intermediary plays an active role in assisting people to optimise the presentation of an infringing product, then they might be held liable. However, even if the intermediary did not play any active role in presenting the goods, they might still be held liable if ” a diligent economic operator should have realised that the offers for sale in question were unlawful”. This is a terrible standard in my view. There seems to be no determination as to volume of transactions, how is it possible for an operator to be able to know the legality of an item when it handles millions of transactions per day? To me this has to be part of any determination.

via technollama.co.uk

Do clothes maketh the man?

According to the Adages of Erasmus, ‘vestes virum facit‘, which is often rendered in English as ‘clothes maketh the man’. Two different stories in today’s Irish Times brought this adage to mind. In the first, a picture tells a thousand words:

Nicolas Dupont-Aignan in l'Assemblé National

The photo is by Gonzalo Fuentes via Reuters and Yahoo. It shows French deputy Nicolas Dupont-Aignan covering his face with a scarf in the colours of the French flag to protest at the denial of speaking time to independent deputies during a debate about Libya at l’Assemblée Nationale in Paris yesterday. It demonstrates that what deputies wear in parliament can be as important as what they say. Sometimes, the sartorial expression is obvious, as where a slogan on a t-shirt makes the point. Sometimes, it’s a little more subtle, but all the more effective, as the photo above of Dupont-Aignan demonstrates. And sometimes, even a deputy’s normal everyday wear makes the point: in Ireland, Mick Wallace TD habitually wears a casual pink shirt. Like some other independent TDs, he dresses casually to make a point against unnecessary conformity and stuffiness; and he dresses in pink as “a challenge to the sad macho element in Irish society”. (more…)

Reviews of the Copyright Review Committee’s public meeting yesterday

Copyright symbol, via the Irish TimesYesterday morning, I chaired a public meeting of the Copyright Review Committee (#CRC11). The Committee was set up in May to identify solutions for any aspects of the current copyright legislation that create barriers to innovation, and in particular to consider whether a US-style ‘fair use’ doctrine to see if it would be appropriate in an Irish or EU context. Today, I read a provocative criticism of the event by photographer Dominic Lee:

© Copyright Act Review by Dominic Lee

… While this was a “Review”, it quickly became clear to me that the committee’s agenda is to attempt to introduce “Fair Use” to the Copyright Act 2000. However, the term “Don’t Want to Pay” is more appropriate in each and every aspect of those in favour of this change.

… Media publications would never dream of publishing a painting by Graham Knuttel or an extract from a Maeve Binchy book without asking their permission first but many of them have no problem riding rough-shot over Photographers work because they know there is a very slim chance that we could afford to sue for breach of Copyright. … Photographers make a living by selling photographs and deserve to be treated with the same respect as musicians, artists, and writers. There is great advertising value to be gained by using our images on the www but the Copyright Law must protect us from those who wish to make a living at our expense. Fair Use is not Fair Play.

From a more general perspective, David Brophy (Partner, FRKelly, Dublin) provided an immediate and excellent summary of the event on the 1709 Blog:
(more…)

Pensive mood

As I’ve said before on this blog, Being Five is one of my favourite fun blogs. Here’s a recent cartoon strip called Pensive:

Georgie being Pensive, but interrupted by Cookies


Being Five is a comic strip about a kid named Georgie who blogs using voice recognition software (since he can’t read or write yet).

In the first panel, he says: “People are getting to know me by reading my blog! They’re realising that I’m a very deep, pensive, philosophical, insightful little fella!” (Just like I hope readers of this blog regard me).

In the second panel, Georgie is startled by a voice (presumably his mother’s, from downstairs) calling “Georgie, I baked cookies”.

In the third panel, Georgie repsonds manically: “COOKIES!” (At this point, I deny all similarities).

Update on Copyright Review Committee Public Meeting

Fair Use logo, suggested on WikipediaIn an anncoucement that I have heard at many sporting occasions, there is one change to the team as listed in the programme. In this context, we have one change for the Copyright Review Committee public meeting at 8:30 next Monday morning, 04 July 2011, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block, Trinity College Dublin (map here). Darragh Doyle won’t be able to give his presentation, but we are delighted to announce that David Cochrane, founder and editor of leading current affairs website Politics.ie will take his place on the team-sheet. I will chair, and the other speakers will be Brian Fallon, co-founder of Distilled Media, and TJ McIntyre, Chairman of Digital Rights Ireland. Speaking about the announcement of the public meeting, the Minister for Research & Innovation, Seán Sherlock said:

it is important that we get a clear understanding of the effects of copyright policy, and in particular the economic effects of possible changes to existing copyright law. It is for this reason I feel it is necessary to consult with as wide a range of stakeholders as possible.

In my view, this public meeting is a key element of the Committee’s fact-finding, and I would encourage all those with a strong interest in Ireland’s copyright legislation to attend and air their views. It is important for the Committee that there is good interaction at the meeting and that a variety of views and ideas from the different copyright interests are presented.