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” provision works.
* 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 for the years to come.
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