Re: [dvd-discuss] dmca international?

[Dan Steinberg <synthesis(at)videotron.ca>]

ummmmmmm that would not be a point I would 100% agree on. Were that to be the
case, there would be no pressure on other neations to enact their own
versions of DMCA.  The thing your legal department may have been confused
with is what the DMCA does and what provisions are supported by international
treaty. My knowledge of German copyright law can be summarized in a sero-byte
header, but I do know that other nations have DMCA-like legislation in the
works and that the drafters all felt the legislation was necessary to make
their local laws conform with treaties and multilateral agreements they had
signed.

For those who wish more sleep, here is the short form of the course.
In almost all jurisdictions, local law trumps everything.  Certain places
decide that internernational law trumps local law...but the application of
that quickly proves troublesome and gets the local govt un-elected quickly.

Now coutries need to trade with their partners, so they enter into treaties
with their parnters and multi-lateral agreements (A multi-lateral agreement
is really entering into many treaties at once). The agreement to reduce
greenhouse gasses is a famous one.
Mutli-lateral agreements are the bread and butter of international
organizations like WIPO.

Now once your country's representative to a particular international
organization, armed with a mandate to sign,  had agreed to a particular
agreement, your country almost inevitably has to pass its own legislation.
This is called enabling legislation and it is 'supposed' to reflect the
letter of the agreement 100%. In practice, this is rarely the case as
legislators never miss a chance to muddy the waters and attach their own
agendas.

Because they are multi-lateral, you can't expect everyone to drop everything
and enact legislation at the same time. Some are quicker than others. Some
face still opposition at home.  So multi-laterals usually contain wording
that sez 'this agreement comes into effect when X percent of the signatories
pass their enabling legislation'  or 'his agreement comes into effect when X
percent of the members pass their enabling legislation''.  The negotiation of
such clauses is integral to the treaty process because often member nations
have to figure out how long it will take them to get their own house in
order.

Another sore point is whether member nations agree to extraterritorial effect
either explicitly or implicitly to parallel laws passed by other member
nations.

End of mini-lecture...

I suspect (without a shred of evidence other than my gut feeling and the word
'adobe') that what happened was your legal dept. saw the word adobe,
remembered the fuss about Dimitri and the ongoing fuss with his company
(charges there have not been dropped) and decided to get cautious. Thats what
tiggers do best. There is so much about this issue that has not been fully
litigated, it would not be prudent for counsel to say 'go ahead and ignore
the letter'. Realistically, standing up to Adobe, requires the dedication of
resources your ISP may not have or feel they want to use that way. For a
complex legal issue like this I cant imagine an ISP bothering to stand up.

Tom wrote:

> (I'm not subscribed to that dmca-discuss list I sometimes hear about.
> if someone wants to forward this there, please feel free to do so)
>
> I work for a german ISP, and we have been getting a "DMCA takedown
> notice" from a california law company on behalf of adobe recently. this
> prompted our legal department to write a report on whether or not the
> DMCA applies to us (10000+ km away from the US).
>
> you'd think that is a no-brainer, unfortunately, it ain't. the legal
> eagle came up with the conclusion that international law grants
> copyright holders the same protection internationally as in the law
> "for which the (copyright) protection was sought". in short, the DMCA
> does absolutely apply.
>
> I'd love to hear opinions on this, preferably from law experts, because
> I would (obviously) much prefer my company to stand up to this instead
> of falling over backwards.
>
> --
> http://web.lemuria.org/pubkey.html
> pub  1024D/D88D35A6 2001-11-14 Tom Vogt <tom@lemuria.org>
>      Key fingerprint = 276B B7BB E4D8 FCCE DB8F  F965 310B 811A D88D 35A6

--
Dan Steinberg

SYNTHESIS:Law & Technology
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