

Court Of Human Rights: Convictions For File-Sharing Violate Human Rights - dutchbrit
http://falkvinge.net/2013/02/07/court-of-human-rights-convictions-for-file-sharing-violates-human-rights/?

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roel_v
Why are falkvinge.net posts _still_ upvoted here? This guy is a quack with no
grasp of the law whatsoever.

The linked analysis on the blog contains the real consequences of this ruling:

\- posting pictures online that one took himself of someone else's dresses can
constitute copyright infringement (not so interesting, this has long been the
case - but it's a point that often gets the I-hate-copyright quacks up in
arms)

\- the distinction was made between 'for monetary benefit' or 'for the public
good'. The 'public good' to be interpreted narrowly - saying 'I uploaded the
new Metallica album to the pirate bay is my way of sharing culture' is not
'for the public good' (this last point was not made explicitly in the ruling
or the analysis but it's implicit from all the previous case law; it would be
interesting to see a judgement otherwise, but to the best of my knowledge the
ECtHR has so far even refused to just hear cases based on this argument)

\- furthermore, to quote from the analysis : "Speech, messages, pictures and
content which are merely money driven do not enjoy the added value of the
protection guaranteed by Article 10 of the Convention. In the Court’s view,
the margin of appreciation in such circumstances is a very wide one, even in a
case where the interference by the authorities takes the form of a criminal
conviction or a very high award of damages, both ‘sanctions’ with a risk of
having a chilling effect." This is merely reinforcing existing rulings at
various levels that got the general interwebs riled up - "it's inhuman to
convict somebody to millions in damages to run the pirate bay!" Sorry buddy,
ECtHR just said it isn't.

\- Choice idiocy, typical falkvinge style:

"When this court makes a decision, that decision gets constitutional status in
all of Europe (except for Belarus, which is not a signatory)."

Oh please. OK, not everybody has to be a lawyer, but at least read
[http://en.wikipedia.org/wiki/Monism_and_dualism_in_internati...](http://en.wikipedia.org/wiki/Monism_and_dualism_in_international_law)
before making dramatic claims like this. Also, using words like 'constitution'
that have very different meanings between legal systems (hint: it usually
functions very differently in civil law systems as it does in the US) usually
only adds confusion; in this case, I'm not sure if it's deliberate or just
because of general incompetence.

"A court that tries somebody for violating the copyright monopoly must now
also show that a conviction is necessary to defend democracy itself in order
to convict."

What? What the court said was that the 3-step test established in many other
aspects of ECtHR rulings apply here as well; he even quoted it one paragraph
above his claim: "Exceptions can be made to Human Rights according to a well-
defined three-step test: the verdict must be necessary in a democratic
society, <etc>"

How he got from that to what he claims, I can only ascribe to acute
illiteracy.

Please, sensible people on the internet: don't get your case law reporting /
legal advice from falkvinge.net. If you think his reasoning will help you
defend your case in court if you even end up there for copyright infringement,
you'll be in for a very rude awakening.

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narag
So what it means is that copyright can not be used as a means to censor free
speech? Well, that's what I understood anyway.

That's still interesting. And although I also found the wording very
confusing, I upvoted it (I usually do this as a bookmarking method). Please,
don't hate me!

~~~
roel_v
Yes, that's roughly what it means, and it isn't exactly surprising, nor new.
The rhetoric in the article is tabloid-style reporting.

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tzs
There was a good explanation of what this ACTUALLY means on Reddit [1].

[1]
[http://www.reddit.com/r/technology/comments/1828u4/eu_just_t...](http://www.reddit.com/r/technology/comments/1828u4/eu_just_took_a_big_step_towards_freedom_of_sharing/c8b2tj4)

~~~
dutchbrit
Thanks for the link

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rayiner
In addition to Roel_v's very cogent dismantling of the article, I'd like to
point out a separate issue: European copyright law is generally based on a
different premise than American copyright law. European copyright law is
generally based on the moral right of an author to control access to his
original work. If you look at the history of copyright, the U.S. has in an
number of cases expanded copyright domestically to match broader protections
under international treaties reflecting European laws.

~~~
ZeroGravitas
Yes, funny that no-one ever seems to "harmonise" away from what well connected
lobbyists want, it's always in the same direction (more copyright in this
particular case).

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rayiner
"Well-connected lobbyists" is a boogeyman. Governments have been harmonizing
towards more copyright because:

1) It's easy to point to the media industry and whisper the word "jobs." There
is no other word, not even "checkbook," that gets a politician to perk up his
ears more quickly.

2) We're a society that understands and values property. The idea that someone
should have control over their original works, even total control, is an easy
sell to a society that defines even a teenager cutting across a yard as
illegal trespass. Freedom to share ideas is something we also value, but: a)
we associate that much more closely with political speech than creative
works;[1] and b) such freedom is a newer, less fundamental idea to us than
property.

A great example is moral rights in creative works. There are no "well-
connected" art-industry lobbyists that got European legislatures to recognize
moral rights to artistic works. It was purely the result of it being an easy
sell that artists had inherent rights over their creative works, even
extending to a certain ability to control the use of those works post-sale.

[1] And even to the extent we associate it with creative works, we associate
it with the right of content creators to publish socially uncomfortable
material (pornography, etc), rather than any "right" of content consumers to
share other peoples' original content.

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speeder
Interesting, very interesting, maybe we will be able to steer copyright back
toward its original purpose ( block plagiarism )

Copyright purpose was not preventing people from getting your work for free,
it was to prevent them to pay for your work to someone you did not authorized,
like some crazy publishers of 16th century that would happily sell copies of
books, even books not complete yet, without paying authors.

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TazeTSchnitzel
Shakespeare was a victim of this. People would sell copies of his plays and he
would get nothing.

~~~
chrisbennet
“But Shakespeare didn’t just read these texts and imitate their best parts; he
made them his own, seamlessly blending them together in his plays. Sometimes
the literary approach got Shakespeare into trouble. His peers repeatedly
accused him of plagiarism, and he was often guilty, at least by contemporary
standards. What these allegations failed to take into account, however, was
that Shakespeare was pioneering a new creative method in which every
conceivable source informed his art. For Shakespeare, the act of creation was
inseparable from the act of connection.”

Page 220, _Imagine by Jonah Lehrer_

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mtgx
There's a long explanation of the ruling here:

[http://echrblog.blogspot.in/2013/01/copyright-vs-freedom-
of-...](http://echrblog.blogspot.in/2013/01/copyright-vs-freedom-of-
expression.html)

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Julianhearn
Finally, the human rights act does something useful instead of giving
criminals lots of extra rights, oh wait...

