[wordup] Harm from the Hague

[Adam Shand]

Here's my rant to go a long with this.  For so long we've been fighting
discrimination and prejudice by encouraging everyone to be the same.
The cry is that X minority is just the same as you, thus you shouldn't
discriminate against them.

I believe that this is utter and complete crap.  We aren't all the same,
physically, mentally or socially.  Every culture, race and gender has
their own strengths and weaknesses.  We are more willing to admit physical
differences (men tend to be stronger then women), but social differences
arouse more suspicion and anger because they are harder to quantify.

We need to stop pretending that we are all the same.  We shouldn't all get
along because we're the same, we should all get along because it's a whole
fuck load more fun to get along with each other then to kill each other.

We need to learn to celebrate diversity, diversity is what makes us strong
as a species and a culture.  Lets stop pretending that we're all equally
worthy, that race, gender and culture make no difference to our physical
and mental make-up beliefs.

We are all different from each other in all sorts of immeasurable ways.
Get used to it, relish it, cherish it, live it ...  You have more to learn
from someone nothing like you then from someone just like you.

URL: http://www.gnu.org/philosophy/hague.html

Harm from the Hague
By Richard Stallman
June 2001

Europeans have energetically opposed and thwarted the attempt to introduce
software patents in Europe. A proposed treaty, now being negotiated,
threatens to subject software developers in Europe and other countries to
U.S. software patents -- and other harmful laws from around the world. The
problem is not just for programmers; authors of all kinds will face new
dangers. Even the censorship laws of various countries could have
globalized effect.

The Hague treaty is not actually about patents, or about copyrights, or
about censorship, but it affects all of them. It is a treaty about
jurisdiction, and how one country should treat the court decisions of
another country. The basic idea is reasonable enough: If someone hits your
car in France or breaks a contract with your French company, you can sue
him in France, then bring the judgment to a court in whichever country he
lives in (or has assets in) for enforcement.

The treaty becomes a problem when it is extended to distribution of
information -- because information now travels normally and predictably to
all countries. (The Internet is one way, but not the only way.) The
consequence is that you could be sued about the information you
distributed under the laws of *any* Hague country, and the judgment would
probably be enforced by your country.

For instance, if you release a software package (either free or not) in
Germany, and people use it in the U.S., you could be sued for infringing
an absurd U.S. software patent. That part does not depend on Hague -- it
could happen now. But right now you could ignore the U.S. judgment, safe
in Germany, and the patent holder knows this. Under the Hague treaty, any
German court would be required to enforce the U.S. judgment against you.
In effect, the software patents of any signatory country would apply to
all signatory countries. It isn't enough to keep software patents out of
Europe, if U.S. or Japanese or Egyptian software patents can reach you
there.

But patent law is not the only area of law that could wreak havoc if
globalized by the Hague treaty. Suppose you publish a statement
criticizing a public figure. If copies are read in England, that public
figure could sue you under the strict U.K. libel law. The laws of your
country may support the right to criticize a public figure, but with the
Hague treaty, they won't necessarily protect you any more.

Or suppose you publish a statement comparing your prices with your
competitors' prices. If this is read in Germany, where comparative
advertising is illegal, you could be sued in Germany and the judgment
brought back to you wherever you are.

Or suppose you publish a parody. If it is read in Korea, you could be sued
there, since Korea does not recognize a right to parody.

Or suppose you have political views that a certain government prohibits.
You could be sued in that country, and the judgment against you there
would be enforced wherever you live.

Not long ago, Yahoo was sued in France for having links to U.S. sites that
auctioned Nazi memorabilia, which is lawful in the U.S. After a French
court required Yahoo France to block such links, Yahoo went to court in
the U.S., asking for a ruling that the French judgment cannot be applied
to the parent company in the U.S.

It may come as a surprised to learn that exiled Chinese dissidents joined
the case in support of Yahoo. But they knew what they were doing -- their
democracy movement depends on the outcome.

You see, Nazism is not the only political view whose expression is
prohibited in certain places. Criticism of the Chinese government is also
prohibited -- in China. If a French court ruling against Nazi statements
is enforceable in the US, or in your country, maybe a Chinese court ruling
against anti-Chinese-government statements will be enforceable there too.
(This might be why China has joined the Hague treaty negotiations.) The
Chinese government can easily adapt its censorship law so that the Hague
treaty would apply to it; all it has to do is give private individuals
(and government agencies) the right to sue dissident publications.

China is not the only country to ban criticism of the government; as of
this writing, the government of Victoria (Australia) is suing to suppress
a book called Victoria Police Corruption on the grounds that it
"scandalizes the courts." This book is available on the Internet outside
Australia. Australia is a Hague treaty participant; if the treaty applies
to such cases, an Australian court judgment against the book could be used
to suppress it elsewhere.

Meanwhile, works that criticize Islam have faced increasing censorship in
Egypt, a Hague treaty participant; this too could be globalized by the
Hague treaty.

Americans may turn to the First Amendment to protect them from foreign
judgments against their speech. The draft treaty permits a court to ignore
a foreign judgment that is "manifestly incompatible with public policy."
That is a stringent criterion, so you cannot count on it to protect you
just because your conduct is legal where you are. Just what it does cover
is up to the particular judge.

It is unlikely to help you against broad foreign interpretations of
copyright, trademarks or software patents, but U.S. courts might use it to
reject outright censorship judgments.

However, even that won't help you if you publish on the Internet, because
your ISP either has assets in other countries or communicates to the world
through larger ISPs that have them. A censorship judgment against your
site, or any other kind, could be enforced against your ISP, or your ISP's
ISP, in any other country where it has assets -- and where there is no
Bill of Rights, and freedom of speech does not enjoy the same exalted
status as in the U.S. In response, the ISP will shut off your site. The
Hague treaty would globalize pretexts for lawsuits, but not the
protections for civil liberties, so any local protection could be
bypassed.

Does suing your ISP seem far-fetched? It already happens. When the
multinational company Danone announced plans to close factories in France,
Olivier Malnuit opened a site, jeboycottedanone.com, to criticize this.
(The name is French for "I boycott Danone.") Danone sued not only him but
his site hosting company and domain name registrar for "counterfeiting of
goods" -- and in April 2001 received a ruling prohibiting Malnuit from
mentioning the name "Danone" either in the domain name or in the text of
the site. Even more telling, the registrar removed the domain in fear
before the court made a ruling.

The natural response for French dissidents is to publish their criticism
of Danone outside France, just as Chinese dissidents publish their
criticism of China outside China. But the Hague treaty would enable Danone
to attack them everywhere. Perhaps even this article would be suppressed
through its ISP or its ISP's ISP.

The potential effects of the treaty are not limited to laws that exist
today. When 50 countries know that their court judgments could be enforced
throughout North America, Europe and Asia, they would have plenty of
temptation to pass laws just for that purpose.

Suppose, for example, that Microsoft would like to be able to impose
copyright on languages and network protocols. They could approach a small,
poor country and offer to spend $50 million a year there for 20 years, if
only that country will pass a law saying that implementing a Microsoft
language or protocol constitutes copyright infringement. They can surely
find some country which would take the offer. Then if you implement a
compatible program, Microsoft could sue you in that country, and win. When
the judge rules in their favor and bans distribution of your program, the
courts in your country will enforce the judgment on you, obeying the Hague
treaty.

Does this seem implausible? In 2000, Cisco pressured Liechtenstein, a
small European country, to legalize software patents. And IBM's chief
lobbyist threatened many European governments with a termination of
investment if they did not support software patents. Meanwhile, the U.S.
trade representative pressured Middle Eastern country Jordan to allow
patents on mathematics.

A meeting of consumer organizations (http://www.tacd.org) recommended in
May 2001 that patents, copyrights and trademarks ("intellectual property")
should be excluded from the scope of the Hague treaty, because these laws
vary considerably between countries.

That is a good recommendation, but it only solves part of the problem.
Patents and bizarre extensions of copyright are just two of many excuses
used for suppression of publication in certain countries. To solve the
problem thoroughly, all cases about the legality of distributing or
transmitting particular information should be excluded from globalization
under the treaty, and only the country where the distributor or
transmitter operates should have jurisdiction.

In Europe, people opposed to software patents will be active in working to
change the Hague treaty; for more information, see
http://www.noepatents.org/hague. In the U.S., the Consumer Project for
Technology is taking the lead; for more information, see
http://www.cptech.org/ecom/jurisdiction/hague.html.

A diplomatic conference is slated to begin today (June 6, 2001) to work on
the details of the Hague treaty. We should make ministries and the public
aware of the possible dangers as soon as possible.

Copyright 2001 Richard Stallman

Verbatim copying and distribution of this entire article are permitted in
any medium provided the copyright notice and this notice are preserved.