We have the great pleasure of a visit from Thomas Hoeren
of the University of Munster at our Internet Law Colloquium
tonight. Prof. Dr. Hoeren has done it all in our space:
professor, director of institutes and centers, judge, author,
editor. He’s now giving his third of three lectures — this one,
a very colorful tour-de-force of EU law in our field — this week at
Harvard. He calls it a “postivistic” lecture, a collection of interesting facts.
* He does not like the Copyright in the Information Society
directive. (It’s “terrible” he says.) The “making available
right,” as articulated in the directive and mostly as implemented by the member states, is not a good idea.
* He calls America the “mother country of DRM.” And the mother country also of Lessig.
* “How do we protect private copying against encryption tools?”
he wonders. The Germans have the best rules on this topic.
He calls it the “yes | no | yo” solution.
* The Enforcement Directive: the big problem to solve is the issue of
rights against access providers. There’s an express regulation
that says that the access providers could be liable and must turn over
information to the content owners. The courts are empowered to determine what is equitable.
* He critiques a Lithuanian and Slovenian statute that “protects”
creators by providing for equitable remuneration for creators when she
or he makes a licensing arrangement with large companies. The
courts, unfortunately from his perspective, are empowered to make these
decisions about what is “equitable.”
* The software patent debate: “exhausting.” He contends that the
threats of copyright and trademark protection are greater than patent
protection, because of the longer terms.
* Unfair trade: the mistake is an easy one. The Directive on
Certain Legal Aspects of E-Commerce sets up a race to the bottom
problem because of the manner in which the “country of origin”
* Digital Evidence: Every electronic document can be manipulated. There are more
than 20 decisions from across Europe that say that e-mails do not have
evidential value. The answer of the EU: to use digital
signatures, backed up by a new directive. The requirement is very
high in order to meet the standard for parity in evidence with a
written deed: a “qualified signature”, which no one has.
* He’s very interested in what the right liability scheme for
intermediaries should be. The last of the examples, this
liability regime topic, pits at least two possibilities against one
another: 1) the notice-and-takedown approach of the US’s DMCA and 2)
the alternative strategy of constructive knowledge. It maps also
to the current debate in the US over the Grokster litigation, at a high
level, about what sort of a secondary liability regime (here, in
copyright), is optimal?
* Internet governance does not mean very much, he says. In part,
because the term “internet” has been replaced by “information.”
And no one has figured out what “information governance” means yet.