Posted by David Post:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244798471
The answer to the question that I know you've all been asking
yourselves (i.e., "Where's David Post, and why hasn't he posted
anything of late to the VC? -- even just to [1]pitch his book!) is:
I'm teaching this summer at our Rome program, and between adjusting to
a new (and very, very complicated city) and trying to see all of the
extraordinary things there are to see in Rome, and teaching for an
hour or so every day, I've been pretty harried. [You can tell I've
been too busy, because I didn't even have a chance to blog about
Barcelona's extraordinary 2-0 victory over Chelsea in the Champions
League final, which was held here in Rome the day I arrived, and which
I watched (a) in the piazza in front of the Pantheon, at a TV screen
set out by one of the restaurants] (first half) and (b) at a back
table in the kitchen of a little trattoria where my wife and friends
were having dinner])
But it's an interesting time to be teaching a course (as I am here) on
"Intellectual Property and the Internet." As you've probably heard,
France has been taking a particularly aggressive stance in regard to
the question of Internet "piracy," both domestically and in the EU
parliament; it has passed a harsh law requiring ISP monitoring of
Internet use designed to ferret out users of P2P file-sharing systems,
including a mandatory cutoff of all Internet service for anyone found
(after an administrative, but not a judicial, hearing) to have been
sharing files unlawfully on three separate occasions. [Stories
[2]here, [3]here, and [4]here about the French law] [Reports that
[5]the French military have been involved in shutting down Bittorrent
servers have been circulating around as well, though I can't vouch for
their accuracy]. The French introduced a similar measure this Spring
in the European parliament, where it was voted down - indeed, the
parliament passed a measure prohibiting EU governments from
terminating a user's Internet access without a court order, declaring
that "Internet access is a fundamental right such as the freedom of
expression and the freedom to access information."
It sets up a nice constitutional conflict between the EU and one of
its member States -- and this past week, into the mix comes the French
Constitutional Court, which struck down all sanctions against
individuals in the French law, on the grounds that they presumed
guilt, which could only be established by judicial process. Patrick
Fitzgerald very helpfully sent along the following report:
In addition, they included a powerfully-worded statement on free
speech which suggested that mandatory disconnection might be
disproportionate per se, whether or not imposed by a court. Citing
the Declaration of the Rights of Man of 1789(!), they argued that
free speech was a fundamental right and that its continued
evolution meant that it now included, practically, a right to
access the internet.
Whilst it is tricky to extract pithy quotes from French
Constitutional decisions, this is probably the most interesting:
Considérant qu'aux termes de l'article 11 de la Déclaration des
droits de l'homme et du citoyen de 1789 : " La libre communication
des pensées et des opinions est un des droits les plus précieux
de l'homme : tout citoyen peut donc parler, écrire, imprimer
librement, sauf � répondre de l'abus de cette liberté dans les
cas déterminés par la loi " ; qu'en l'état actuel des moyens de
communication et eu égard au développement généralisé des
services de communication au public en ligne ainsi qu'�
l'importance prise par ces services pour la participation � la vie
démocratique et l'expression des idées et des opinions, ce droit
implique la liberté d'accéder � ces services ;
The 1789 Declaration of the Rights of Man and Citizen provides that
'the free communication of thoughts and opinions is one of the most
precious human rights: accordingly any citizen can speak, write and
print freely, except in cases of legally defined abuse.' In light
of contemporary means of communication, and particularly the
generalised usage of internet to communicate, as well as the role
the internet has come to play in democratic participation and the
expression of ideas and opinions, this right [of free speech]
implies the freedom to access the internet.
They continue to juxtapose this against the property rights of
copyright holders, but find that the right to free speech is so
fundamental that it can only be infringed by means which are
'necessary, adapted and proportionate to the end sought'. The
'ratio' (so to speak) is eu égard � la nature de la liberté
garantie par l'article 11 de la Déclaration de 1789, le
législateur ne pouvait, quelles que soient les garanties encadrant
le prononcé des sanctions, confier de tels pouvoirs � une
autorité administrative dans le but de protéger les droits des
titulaires du droit d'auteur et de droits voisins ;
With respect to the nature of the liberty [of expression], the
legislature cannot, under any safeguards or process, confer such
powers [ie to cut domestic internet access] on an administrative
authority for the purpose of protecting copyrights.
They attached particular importance to the fact that the person's
home access could (indeed would) be affected.
[Some useful links are here: [6]a French free internet campaign group;
[7]Le Figaro (in French); [8]Ars Technica; the [9]actual decision
(obviously in French)
It's going to mean I may have to rewrite the last chapter of my book,
where I tried to draw a distinction between US and French views of
free speech and copyright law -- suggesting that US law recognizes th
freedom of speech as a "natural right" and copyright as a lesser
"social right," while the French take the opposite view. Things are
always, of course, more complicated than simple formulae like that,
and this is a good example - this is as ringing an endorsement of
Internet speech as one might have gotten from Hugo Black or Thomas
Jefferson.
References
1. http://tinyurl.com/jeffersonsmoose
2. http://news.cnet.com/8301-1023_3-10238912-93.html
3.
http://www.nytimes.com/2009/04/13/technology/internet/13iht-piracy13.html?_r=1
4. http://euobserver.com/871/28047
5. http://www.theinquirer.net/inquirer/news/1184608/french-military-clos
6.
http://www.laquadrature.net/en/hadopi-is-dead-three-strikes-killed-by-highest-court
7.
http://www.lefigaro.fr/politique/2009/06/10/01002-20090610ARTFIG00516-le-conseil-constitutionnel-censure-la-riposte-graduee-.php
8.
:%20http://arstechnica.com/tech-policy/news/2009/06/french-court-savages-3-strikes-law-tosses-it-out.ars
9.
:%20http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009-580-dc-du-10-juin-2009.42666.html
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