Google: Changing Laws Around the World

Colourfull Books

As both sides of the Google books controversy try to work on a revised settlement before the new November 9th deadline, the effects continue to ripple across the globe: on Monday, the European Commission announced plans to work on revising copyright law in the EU. Citing the need to compete on the digital frontier, Commissioner Viviane Reding stated, “Important digitization efforts have already started all around the globe. Europe should seize this opportunity to take the lead, and to ensure that books digitization takes place on the basis of European copyright law, and in full respect of Europe’s cultural diversity. Europe, with its rich cultural heritage, has most to offer and most to win from books digitization. If we act swiftly, pro-competitive European solutions on books digitization may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States.”

This potential change seems to have been triggered by a growing frustration over the last few months with the terms of the US settlement and unwillingness to let Google monopolize digitization. Google has had a harder time arguing its case under current EU law; the concept of fair use generally doesn’t exist in Europe, and violation of copyright often carries strict liability. So far Google has limited its European scanning to works that are at least 150 years old, to avoid issues with copyright. But the settlement as it currently stands doesn’t address a number of European problems (pdf download), and the European Commission began hearings at the beginning of September to discuss specific grievances.


Published in: on October 25, 2009 at 10:49 am Comments Off on Google: Changing Laws Around the World

International Law: Still Pretty Messy

On October 30th, Professor Combs gave the 2008 Blackstone lecture. The topic of her lecture was “Factfinding in International Criminal Law: The Appearance, the Reality, and the Future”.

After a brief overview of the course modern international criminal law has taken from the Nuremburg trials to today, Professor Combs turned to the focus of her talk: the difficulties posed by attempting to apply the standards and methods of criminal law fact finding to an international law context.

The war crimes tribunals that followed the Second World War were viewed as landmark events in the history of modern international law. There were high hopes that the international response to these atrocities represented a first step towards holding all accountable under the law, even political leaders and nation-states. Subsequent efforts in the field of international law include the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Efforts such as these suffer from the difficulties that plague all international projects: poor funding, unstable political support, ill-defined authority, and inadequate enforcement mechanisms. Nonetheless there is hope that the mere existence of such tribunals is a step in the right direction, and a sign that international law is slowly progressing and growing.

However the failings Professor Combs’ talk focused on challenged this notion of modern international law as a system that, while flawed, is moving in the right direction. Specifically, Professor Combs analyzed the fact that the modern international law system seems to be employing a much more flawed fact finding method than they are willing to acknowledge, with troubling implications for due process.


Published in: on November 28, 2008 at 11:52 am Comments Off on International Law: Still Pretty Messy

Telecom Spying– You Are Still Not Safe

You’re still not safe because there’s still no terrorism exception to the rule of law. That was the message from the Attorney General this week in his address to the Commonwealth Club of California. After his initial remarks (which were on the ongoing effort to fight public corruption) he solicited a question on the debate over retroactive immunity for the telcoms violations of the statutes protecting the privacy of their customers at the behest of the President.

I don’t write this because I expect to change anyone’s mind, this isn’t that kind of issue. I am writing this because I am tired of being talked down to by people who exude a sense of entitlement to conduct themselves as they see fit, the rule of law notwithstanding. We may see legal protection for the telcoms fairly soon – Congress will reconvene on April 14th – but it will be all the more tragic because we won’t be able to hide behind a claim of ignorance like we did with the Patriot Act.

The Attorney General began by explaining, from his perspective, why the telcoms are being sued:

“[The telcoms] are being sued … because they are believed to have responded to the direct assurance by those in authority that the President had asked them to help collect foreign intelligence against foreign targets – we’re not talking about domestic surveilliance … of targets located abroad, and that it was legal”

Wrong. The telcoms are being sued because they broke the law. This is one of the most offensive aspects of the rhetoric being used. What the Attorney General is trying to describe is a legal justification for what the telcoms did. If he is right, there is a good chance that they in fact did not break the law. Fantastic right? So why do we need to immunize them, just let them win in open court. In fact, if the claims are half as frivolous as the Attorney General suggests, the plaintiffs would have been thrown out a long time ago. Later on, he comes back to this, saying “we need and get court permission … to [conduct surveillance on Americans here in the United States],” again saying this is about foreign intelligence and foreign targets. Whatever planet the Attorney General is living on, the lawsuits here in the United States are brought by Americans who claim that THEIR rights have been violated.


Published in: on April 4, 2008 at 11:48 pm Comments Off on Telecom Spying– You Are Still Not Safe

Senate Immunizes Warrantless Wiretapping

Jim Webb, John Warner, and a supermajority of the Senate (68-29), just sold you out. The Senate just passed a bill which would excuse the telecommunications companies for violating the rights that same Senate conferred upon you. Make no mistake, there hasn’t been the slightest suggestion that what they did was legal. Rather, those supporting retroactive immunity for the telcoms suggest that they are entitled to break the law when they do so for the sake of national security. Specifically, when the government asks them to provide your private communications without even trying to get a warrant from a secret court, or complying with the already expansive powers conferred upon it following 9/11.


But the whole national security angle is a farce — the President vowed to veto the very legislation very that would give him access to FISA warrants unless it contained retroactive immunity for his cronies. It is, sadly, understandable, since the power to act outside the law is more valuable than the authority to act within its constraints, but the fact that every Republican senator was willing to wager (See “Update III”) the ability to obtain legal FISA warrants against the prospect of obtaining retroactive immunity for those who broke FISA should be inexcusable in a country that believe it is governed by laws, not men.


Published in: on February 14, 2008 at 2:45 pm Comments Off on Senate Immunizes Warrantless Wiretapping

Alien vs. (Human Rights) Predator

The Alien Tort Claims Act (ATCA) of 1789 grants jurisdiction to United States federal courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. 1350 (2006).

Though perhaps seemingly bland in its one-sentence text, the significant effect of the ATCA is to provide an American legal venue to victims of human rights abuses who could not otherwise bring their abusers to justice in local courts due to bureaucratic reasons, domestic intimidation, or otherwise. The ATCA does so even if neither party has any connection to the United States.

This dated piece of legislation was adopted in a time very different from the present, given that the ATCA was passed as part of the original Judiciary Act of 1789 that established the “inferior courts” that we recognize today as our federal district courts and courts of appeals. Clearly the American court system and laws have evolved over time, but though the ATCA dates from our nation’s constitutional founding and fell out of regular use long ago, the pithy statute has taken on an increased salience in recent years.

As noted above, the effect of the ATCA is to provide a venue in a U.S. federal court for human rights violations. Importantly, the ACTA allows for alien plaintiffs to sue non-national individuals, rather than countries. But as Corporations and Business Associations class indoctrinates us, an “individual” need not be a human being, it can be a corporate entity in the legal sense.

Although intended to apply to a limited number of tort actions, such as piracy, violations of safe-conducts, and interference with the rights of ambassadors, the ACTA’s limits were tested in 1980 when a Paraguayan man successfully used the ATCA to sue a police official who kidnapped and tortured his son to death in Paraguay. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

More recently, in July 2007 a federal jury delivered its verdict in the first corporate ATCA case to make it through trial, finding that Drummond Coal Company was not guilty of the 2001 murder of three union leaders at one of its mines in Colombia. Rodriquez v. Drummond, 256 F. Supp. 2d 1250 (N.D. Ala. 2002). It should be noted that the case is being appealed, however, as the trial judge excluded eyewitness testimony linking the company’s operations to Colombian paramilitaries.

Why is the Alien Tort Claims Act of 1789 important? Because it represents a new (or, more aptly, a rediscovered) arrow (more…)

Published in: on January 30, 2008 at 5:10 pm Comments Off on Alien vs. (Human Rights) Predator

A Constitution for the Oceans?

When recently perusing the website of the Hamilton Project (an excellent consortium of progressive-leaning policy papers), I came across something that I never knew existed. To my surprise a comprehensive framework, established under the imprimateur of the United Nations, exists that seeks to set forth rules governing the uses of the non-territorial oceans (i.e., the open seas) and their resources, including the airspace above and the seabed and minerals below.

OceanThis international treaty of sorts–called the United Nations Convention on the Law of the Sea (UNCLOS)–was first adopted in Montego Bay in 1982, and has since been modified an adopted by 155 nations (yes, in case you are wondering, even Lesotho has signed on). The text of the Convention may be read here.

Some of the major features of this Convention include:

  • Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection;
  • All States enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas; they are obliged to adopt, or cooperate with other States in adopting, measures to manage and conserve living resources;
  • States are bound to prevent and control marine pollution and are liable for damage caused by violation of their international obligations to combat such pollution;
  • Disputes can be submitted to the International Tribunal for the Law of the Sea established under the Convention, to the International Court of Justice, or to arbitration. Conciliation is also available and, in certain circumstances, submission to it would be compulsory. The Tribunal has exclusive jurisdiction over deep seabed mining disputes.

Conspicuosly absent from the list of ratifiers? You guessed it: the United States. Refreshingly, however, this is not due to any intransigence on the part of the Bush Administration. In fact, President Bush listed UNCLOS as one of his “top 5” treaty priorities in 2004. Lip service is one thing, and action is another, but all things considered it is a step in the right direction that a proposal wasn’t rejected outright under the auspices that the United States would somehow cede its sovereignty to every other nation in the world. The White House should be commended for its leadership.

No, despite the support of the Bush Administration (to wit, as recently as May 2007), the former Chairman of the Joint Chiefs of Staff Richard Myers, and the U.S. Chief of Naval Operations Admiral Vern Clark, a small group of conservative U.S. senators have opposed the treaty and precluded its progression for ratification in the Senate on grounds that it would impair America’s sovereignty. This, despite the fact that it was approved 19-0 by the Senate Foreign Relations Committee in February 2004.

This argument is stale and rejected by many who apply the same argument in different contexts, with respect to international organizations and treaties. In fact, ratifying UNCLOS would benefit the United States in a variety of ways…


Published in: on August 31, 2007 at 1:04 am Comments (1)