Interesting People mailing list archives

IP: Jamie Love on Asked my lawyer about this Treaties

From: David Farber <dave () farber net>
Date: Fri, 22 Jun 2001 20:38:28 -0400

Date: Fri, 22 Jun 2001 17:22:18 -0700
From: James Love <love () cptech org>
Organization: http://www.cptech.org


Dave,

        The Hague convention, if adopted down the road (at the second
diplomatic conference, maybe next year), would only be effective in the
countries that become signatures to the convention.  And in the US, that
would require a vote in the US Senate.  This has been made very clear in
many briefings on the treaty.  The relevant US Constitutional provision
is here:

http://www.access.gpo.gov/congress/senate/constitution/conart.html

        Section. 2. The President . . . shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds
of the Senators present concur;

        It is not obvious what it would take to defeat such a treaty in the
Senate.  Formally, the Hague Convention has a public policy exception,
which is now Article 28(f), which says that a member country may refuse
to enforce a judgment when:

        http://www.hcch.net/e/conventions/draft36e.html
        28 (f) recognition or enforcement would be manifestly 
incompatible with
the public policy of the State addressed

        Thus, the supporters of the Convention say that all of the 
problems can
be addressed by countries deciding to invoke the public policy
exception.  Given the push by the MPAA, AOL/Time Warner, Disney and
others, it is difficult but not impossible to stop this, and first one
has to show the harm.

        There are two problems with supporters agrument that the 28(f) public
policy exception is the magic solution to all the problems.

        (1), it is a high standard to say that a judgment is "manifestly
incompatible" with public policy, particularly in matters involving
intellectual property rights, where the USA is pushing hard globally for
enforcement.  But much more imortant, IMO, is that

        (2) under the Convention, the judgments will be enforceable in *any*
signatory country, and so as a practical matter you will need to get
foreign judges to invoke the public policy exception.  This is a big
deal for the Internet because the ISPs can be sued, and they often have
foreign assets in countries that do not share US public policy goals,
such as the US first amendment.  Which is why, for example, that AT&T
and Verizon are among the big opponents of the treaty (even thought they
otherwise like many of the anti-consumer features of the treaty).

        WEAK LINK PROBLEM

        It turns out that in infringment or defamation cases, the ISPs are
often sued, because they have deep pockets.  Relevant here is that the
ISPS often have foreign assets or agreements with ISPs with foreign
assets, so the result is that your rights will be determined by the
"weak link" in the system, which will be the most regressive country
where your ISP or your ISPs partners have assets.

        For some interesting reports on these issues, see:

http://www.theaustralian.news.com.au/common/story_page/0,5744,2146213%255E12280,00.html
Dow Jones v. Gutnick Internet defamation case in Australia

http://news.cnet.com/news/0-1005-200-6345725.html
Global treaty could transform Web
By Lisa M. Bowman


http://www.cptech.org/ecom/jurisdiction/hague.html
background on the treaty


David Farber wrote:

To: dave () farber net
Subject: Asked my lawyer about this
Date: Fri, 22 Jun 2001 15:49:58 -0400
From: G B Reilly <reilly () sec com>

Date: Fri, 22 Jun 2001 15:42:26 -0400
From: "M. Edward Danberg" <Med () cblhlaw com>
To: <reilly () sec com>
Subject: Re: See last message, do treaties need Senate Approval

Treaties need Senate approval to be considered law in the U.S.  Note that
the Constitution places treaties on the same level as the U.S.

Constitution

- the highest law in the land.  This means that a treaty can over-ride a
statute on the same subject (I always found this strange, since a statute
requires approval of the House as well as the Senate and a treaty does

not).


Whatever, the writer is correct that if other nations adopt the treaty, it
could have a significant effect here, even without approval.  For example,
if a ISP can be held responsible in France for transmitting Nazi items or
even speech, it is quite possible for that judgment to result in a U.S.
Federal Court order to enforce it.

Any international trade agreement by its nature will diminish national
sovereignty to some degree, and there is nothing inherently wrong with
that.  The key is to do so knowingly, not by accident.

You have permission to distribute this message.


For archives see: http://www.interesting-people.org/


--
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
http://www.cptech.org, mailto:love () cptech org
voice: 1.202.387.8030 fax 1.202.234.5176 mobile 1.202.361.3040




For archives see: http://www.interesting-people.org/

Current thread:

IP: Jamie Love on Asked my lawyer about this Treaties David Farber (Jun 22)