Merry Christmas !

Merry Christmas from the Louvre!

Yours truly, The LawPundit and his Better Half

We are pleased to note that
LawPundit was included in the maroon-colored “blogbase”
of the marvelous blog-link Christmas tree
at the Mandarin Design Daily:The MEG Blog
where Mandarin Design extends to us a Christmas wish of
“Peace and Happiness to you and your family”
It is a wish we pass on to all the bloggers in the blogosphere.
Why the Louvre? – Blogging, too, is an art form.

Can-Spam Act Signed

New FEDERAL Anti-Spam Law in Effect January 1, 2004 in the United States

Via Ivan Hoffman’s mailing list

– see http://www.ivanhoffman.com/mail.html to subscribe –

which I highly recommend,

we are alerted to the fact that the Can-Spam Act has been signed into law by US President Bush.

As written at the President’s official government site:

“On December 16, 2003, President Bush signed into law the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), which establishes a framework of administrative, civil, and criminal tools to help America’s consumers, businesses, and families combat unsolicited commercial e-mail, known as spam.”

The basic point of this law is that spammers who continue with their spamming practices after January 1, 2004, will ultimately wind up in jail.

Ivan Hoffman refers us to his discussion of this new Federal “CanSpam Law” at

The Federal Can Spam Law

This is a very important development since it will quickly begin the kind of legal enforcement against spam and spammers which has become absolutely necessary due to the abuse of the mail privilege by that ever-present unteachable minority of humanity which understands nothing other than the brute force of law.

Barbra Streisand – Sabine Christiansen – Alida Gundlach – Right to Privacy – Freedom of the Press – Copyrights

Barbra Streisand – Sabine Christiansen – Alida Gundlach – Right to Privacy – Freedom of the Press – Copyrights?

Did the lawyers here bring a cause of action based on the wrong line of argument?

A legal action brought by Barbra Streisand in the US – which charged a violation of the right to privacy through the internet publication of aerial photos of her Malibu Beach home – now also finds comparable cases in Germany involving publication of aerial photos of the Mallorca (Spain) homes of Sabine Christiansen and Alida Gundlach, two popular German TV journalists.

The Barbra Streisand Case

The Barbra Streisand case involved her Malibu home, raising the legal issue of whether publication of an aerial photo of the house and surrounding property – without any photo of her person on that photograph – violated Streisand’s right to privacy (the online text caption to the photo does identify the house as belonging to Streisand).

This case was dismissed just a week ago and reported at The Smoking Gun, which has scan-copied the decision to that website. Allan J. Goodman, Judge of the California Superior Court, made a similar holding as the court in Germany, finding no violation of the right of privacy and expressly finding that it made no difference that the image was published on the internet and was thus available worldwide for all to see or that the image was offered for sale online as part of an allegedly environmental “photo project” of the entire California coastline.

The Sabine Christiansen and Alida Gundlach Cases

The German cases were brought to my attention via the December 12, 2003 Newsletter of the German site LegaMedia.net, in an article entitled “Luftbildaufnahmen ja, Wegbeschreibung nein”, discussing a case decided by the Federal Court of Justice (Bundesgerichtshof), the highest German court in cases of “ordinary jurisdiction“, i.e. civil and criminal matters. [Please note that Germany has a separate court – the Federal Constitutional Court (Bundesverfassungsgericht) – which is charged to make sure that the provisions of the German Constitution, the so-called Grundgesetz, are adhered to.]

The German Federal Court of Justice held that it was within the freedom of the press to publish aerial photos of the homes, such photos not containing photos of the persons owning the homes, even though such publication involved entertainment of the media audience and had minimal information value.

The second case involved the publication of detailed instructions of access to the somewhat remotely located Mallorca home of Alida Gundlach. On that issue, the court held that such publication was not protected by freedom of the press, since it merely served to make Gundlach more easily accessible to the public, which invaded her privacy, and was not a right protected by the freedom of the press. For more information see also here, Netzeitung, Brinkmann and Beck.

The citation of the cases in Germany is:

Aktenzeichen: Bundesgerichtshof VI ZR 404/02 and 373/02

These cases can be found – in one or two weeks – published at the site of the Bundesgerichtshof under the menu-point Entscheidungen (Decisions). The Court is still slow in getting the cases posted and one can only presume this will improve in the future. Nevertheless, our description of facts and holdings above derives from the cited news accounts and the cases will have to be read in the original to be certain that the facts and holdings as presented above are accurate.

The Interesting Legal Question is…

The interesting legal question is, how close can an aerial photo get in detail – we have great telescopic lenses these days – before the right to privacy is invaded? Does it depend on the presence of a person on the photo? Is a permissible photo limited to “outdoor” formats? What about a telescopic aerial shot through a window? What about a shot showing personal sun chairs and furniture on the sun roof? with a towel on them? sun-tan lotion? lunch? a book just being read? how about showing a pot of flowers on a table in the garden? or refuse in great disarray? Is publication of the telephoto of a personal piece of clothing on the lawn prohibited? What about the shrubbery? or the details of the swimming pool? or the garden hose? – which is a fixed installation connected to the house, so not purely “outdoor” – imagine if the garden hose were pink – personal? Would it make a difference if the lawn was being watered or not at the time of the photo, i.e. a personal action in progress? or that some other activity was taking place? What if microscopic examination of the photo of the house would show the outline of someone standing at a window? What if it were Barbra Streisand? What if it were a burglar who had used a previous photo of the house to plan his break-in? What action would Streisand have against the photographer if the burglar stated that he used an aerial photo for his criminal plans – indeed, what if that was his modus operandi?

Enter define: modus operandi in Google for a definition of that phrase.

What about Copyright Law? Did Streisand’s lawyers bring the right cause of action?

What is the copyright law on buildings? Buildings are protected by copyright, but Section 120(a) of the Copyright Act provides a specific exception that permission is NOT required to take or use photos of any buildings ordinarily visible from a public place. Obviously, the ground below us is ordinarily visible from the sky. But is a plane or helicopter in the air considered “a public place” in the circumstances of this case? If not, then the freedom of the press argument is surely irrelevant since, according to a non-binding “opinion” posted by Tyler T. Ochoa, Associate Professor, Whittier Law School, “news” is not exempted from this limitation. Here is the applicable law:

Section 120. Scope of exclusive rights in architectural works

(a) Pictorial representations permitted.

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

This provision of the Copyright Law has only existed since 1990.

As noted in the case Leicester v. Warner Bros.

“On March 1, 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works. To comply with this treaty obligation, Congress passed the Architectural Works Copyright Protection Act of 1990 (AWCPA), establishing a new category of copyright protection for works of architecture. See H.R. Rep. 101-735, at 4-10.

As defined in 17 U.S.C. S 101, an ‘architectural work’ is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”

First of all, all air space is everywhere restricted, subject to many special regulations and certainly not “a public place” in the normal sense. Put another way, not all air space is “a public place”. The opinion states that “Air travel is a commonplace of modern society and recreational or purposeful flights over the California coastline are commonplace events that people who chose to live in the area must accommodate”, but no one expects or wants helicopters hovering closely over or near their property. That is a different matter.

Limitations are thus set by regulations on flight elevation, for example, precisely in order to protect private residential areas from intrusion, noise and other harmful effects. Moreover, in the litigated case, one page of the website of the photographer sued by Streisand would indicate that some kind of a special transition was required from Los Angeles International Airport in order to fly his helicopter at 500 feet in the Malibu area – at which height the photo was taken, so that this certainly does not look like the kind of normal “public place” intended by the copyright statute drafters. In other words, I would argue that low flying planes and helicopters do not fit the definition of “public place” referred to in the statute, since these require special permits to be where they are – hence, giving them the right to exploit commercial photos taken from such vantage points would give them an advantage to which they are not legally entitled. Thus a good case could – in my opinion – have been made that the copyright law is violated by commercial publication of pictures made from such a basically restricted and ordinarily not visible “public” aerial location. The copyright law does not prohibit the taking of such pictures – but it should then reserve the commercial exploitation of such photographs to the copyright owner of the building architecture. This would be in the spirit of the copyright law as of 1990.

Affirmative Action and Affirmative Competition

The other side of affirmative action is affirmative competition. See Politics & Law: University of Michigan Law School

Legal Implications of Blogging

Legal Implications of Blogging

The Blogbook has a link to an article by Pejman Yousefzadeh at TCS (Tech Central Station) on the legal implications of blogging entitled “The Next Litigation Battleground” (see also his blog, Pejmanesque). The article was also picked up by The Blog Herald.

Generally instructive on this specific topic of internet libel is a posting by Eugene Volokh on the decision of the Ninth Circuit Court of Appeals in the Batzel case, rehearing denied, involving an interpretation of 47 U.S.C. ยง 230 (section 230).

See in this connection my lengthy posting on libel slander defamation and blogs where it is discussed that bloggers should be careful about what they post or allow as comments on their blog pages until the blogger liability issue is firmly settled in the law.

Since the issue of blogger liability is very important, below is a list of blog links about internet libel:

1. via Instapundit – update here – to the Kausfiles and an October 28, 2003 article entitled “The Case Against Editors: Why it still pays to not have one” which points to a posting by Eugene Volokh discussing the difference between libel and slander, who further links to his own May 12, 2002 article in TCS entitled “The Future of Internet Speech“, which points out that 1st Amendment rights to free speech under the US Constitution have limits and are supplemented by the laws of the various states (e.g. on such issues as retraction).

2. Howard Bashman, in How Appealing links to other blog sites commenting on libel, and comments the 9th Circuit decision in Batzel, including the dissent, which raises serious legal issues. See the dissent of Judge Ronald Gould at dissent from denial of rehearing en banc in Batzel v. Cramers. Marty Lederman at SCOTUS links to this dissent for another “historical” reason – the citing of law blogs (blawgs) in a judicial opinion.

3. A Small Victory has some interesting mostly non-legal comment on the libel issue.

European Union Expansion to 25 Member States – Map

Update: Please note that the European Union was expanded to 27 States on January 1, 2007 as Romania and Bulgaria joined the ranks of Member States.

European Union Expansion to 25 Member States – Map (German – Karte)

NEW EU MEMBERS as of May 1, 2004

On May 1, 2004, ten (10) additional countries will join the European Union as new member states, raising the number of EU Member States from 15 to 25.

This extremely important development for the world will change the taxation and legal systems of the new EU Member States, according to a report of May 1, 2003 of PriceWaterhouseCoopers which writes:

“The enlargement of the EU will fundamentally change the tax and legal systems of the ten accession countries requiring harmonisation to ensure they are in line with EU legislation and case law. Areas affected include: VAT, customs and excise duties, direct taxation, commercial law, consumer and competition law, social security and employment law, intellectual property, e-commerce, financial services, and data protection.

Peter Cussons, international corporate tax partner, PricewaterhouseCoopers, said:
“The need for a large measure of tax and legal harmonisation is inevitable, the list of areas affected is huge, and the compliance clock is ticking.
“Companies with existing operations in the ten accession countries should be re-evaluating their operations now to enable them to implement necessary changes in time for the accession date of 1 May 2004. It should also be noted that these changes will have implications not just for companies which already operate within the accession countries, but also companies which plan to invest in or have or plan to have other business relations with those accession countries.

“I cannot emphasise enough that, with only 12 months remaining, businesses need to act now to ensure they are fully compliant with the new largely harmonised EU tax and legal environment.”

And now there are only 5 months left for these changes to be made.

The enlargement of the European Union will have further long-term political, economic and legal repercussions as ebusiness.com has stated:

“In the Treaty on European Union which came into force in 1993, Article 49 says that any European State which respects the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law may apply to become a member of the Union.

Further clarification was given by the European Council meeting in Copenhagen in 1993 which laid down the basic conditions for membership – the so-called “Copenhagen criteria” :

stable institutions guaranteeing democracy;
rule of law, respect for and protection of human rights and minorities;
existence of a functioning market economy;
capacity to cope with market forces and competitive pressures within the Union;
ability to take on the obligations of membership, including Economic and Monetary Union.”

As seen on the map above prepared for this purpose, these ten new members starting in the north and moving southward are:

Estonia
Latvia
Lithuania
Poland
the Czech Republic
Slovakia
Hungary
Slovenia
Malta
Cyprus

United States and European Union compared

The European Union has similarities but also differences to the United States.

Predecessor Organizations and Member States

The predecessor organizations of the European Union started with six (6) members.
These were Belgium, West Germany, France, Italy, Luxembourg and the Netherlands.

Currently there are 15 so-called “member states” in the European Union including the original six member states (Germany after the reunification added the 5 East German Laender on October 3, 1990)

plus the following nine additional member states added as follows:
Denmark, Ireland, United Kingdom joined in 1973. (numbers 7,8 and 9)
Greece joined in 1981 (number 10)
Spain and Portugal joined in 1986. (numbers 11 and 12)
Austria, Finland, and Sweden joined in 1995. (numbers 13, 14 and 15)

Norway signed an accession treaty in 1994, but Norwegian voters rejected membership in a referendum, so that Norway is NOT a member of the European Union.

The accession to the European Union affects the monetary systems of the new member nations and their currencies.

What about the EURO in the new member states?
As you can read at that link, in spite of membership in the EU, the adoption of the Euro in the new member states is conditional upon meeting certain monetary requirements.

The Maastricht Treaty and Other Treaties forming the EU

The Maastricht Treaty also known as
The Treaty on European Union
entered into force by ratification of the Member States on November 1, 1993.

See the milestones of the EU in a timeline of events for the European Union

See the factsheets for the European Union

Lessig on Ownership of Advanced Fiber Networks – but what about Management?

Lessig on Ownership of Advanced Fiber Networks – but what about Management?

Lessig and McAdams in Wonderland

Via GrepLaw and their posting “Lessig’s Take on Fiber” we are transported by the magic carpet of links to the Wonderland of Cornell Professor Economics Alan McAdams and Stanford Professor of Law Lawrence Lessig‘s take on McAdams’ ideas.

I consider Lessig’s book Code to be superb, am very much in accord with the problems he sees in applying traditional copyright and patent laws to the internet and to software, but I would suggest that he missed an important issue in his Wired article “Fiber to the People: When customers own the network, everyone wins.” [LawPundit comment: it is seldom that everyone wins – caveat emptor.]

The word Management is missing

Who owns “the last mile” [i.e. the last stretch of “network” connection to the end user]?

The entire talk by McAdams and Lessig is about “ownership” of networks and how great it is that municipalities are building their own networks, OWNED by the community members [the “end-users”], something which ostensibly permits these networks to enjoy the advantages of a natural monopoly for single-wired network systems, allegedly without any of the disadvantages that attach to monopolies wielded by private corporations. But one important word is missing entirely from Lessig’s article – and that word is MANAGEMENT.

Ownership is not the main issue

It would seem to me to be largely irrelevant on its face whether a network is owned by shareholders through a private company or whether those shareholders own the company through a government entity. You have an artificially-created legal person – an institution of some kind – private or public, which holds the stocks in the company, stocks which are somewhere in the hands of individual persons. There is NO advantage to that per se because the economic operation in question – here, networks – MUST be MANAGED, regardless of the “formal” ownership. And it is on that point that government ownership of “natural monopolies” has always failed dramatically – we need only look to the abysmal track record of Marxist systems. It is the CONTROL of management which is essential, and this is usually a function of ownership, and there, as Shakespeare would write “is the rub”.

Ownership affects Management Decisions

Since governments do not work for profit but presumably “for the good of all”, selection of the management as well as the management of operatons proceeds along entirely different decision-making trees than in the corporate world. In THEORY this should make no difference. In PRACTICE, experience has shown it makes a crucial difference, which can easily end in economic disaster.

Private vs. Public Universities?

That last statement applies regardless of whether the operation of the government entity is in traditional profit-making spheres or in non-profit spheres. We need look only at education. The top universities in the USA are? – take your pick, Stanford? Harvard? Yale? – ALL private universities. The worst educational establishments in the USA are – and there is no question about this – state run. Everyone knows there is a qualitative difference – so what is that difference? The difference is accountability.

UPS, Federal Express and the US Post Office?

United Parcel Service (UPS), Federal Express and other PRIVATE companies have been phenomenally successful in competing with the US Post Office – which long held a “natural monopoly” on mail and packages by mail, a natural monopoly which in theory should have been and should be MORE EFFICIENT than private enterprise but is NOT by any means. See John Stossel and “Signed, Sealed and Delivered”, where the differences in management are cogently discussed.

Waiting in Line at the Beverly Hills Post Office

I remember once waiting for nearly an hour to buy a stamp for a letter while standing in a line of 25 people at the only teller working at the Beverly Hills Post Office in a well-to-do area of the United States which could normally afford to hire more postal employees. In fact, it was a time of great California UNemployment – so why where there not sufficient tellers? No private business in Beverly Hills would survive that kind of “natural monopoly” service for even a day, but standing in lines has always been a mark of government-run operations and still is today, wherever you go, because there is no option to their monopoly services. The “end-user” stands and waits because he has no alternative. The reason for governmental long lines of waiting is that governments – not being accountable to either the profit principle or to the CONSUMER, but being only accountable ONLY to THEMSELVES (as in any community ownership operation) – are notoriously wasteful, ineffecient, corrupt, usually subsidized as a result and undependable over time.

West German privatization of East Germany

When West Germany and East Germany merged nearly 15 years ago, the first entirely sensible thing that was done was the privatization of the East German economy, which had previously been run according to the flawed “McAdams Theorem” (as Lessig would like to call it) of “natural monopolies”. One of the savings alleged by McAdams and Lessig in arguing for the advantages of community-owned networks is that you just have ONE set of wiring, owned by the community. Well, there was no duplication of “wiring” in East Germany in the old days, but only ONE wire for everything – and in many cases, NO wire at all. It did not work.

The West German solution was the only feasible one, and the reunited government sold the East German “government enterprises” to private entrepeneurs – often for the nominal fee of only one German Deutsch-Mark. It was not the FACT of ownership that was the difference. Rather, the German government recognized that business had to be put into private hands to be successful, because such operations would be MANAGED differently, i.e. according to the profit principle, whose main hallmark is accountability. That accountability is measurable, in cash.

What will Communities do when Modernization is Required?

What will happen, for example, when the “one-wired” system of the “natural monopoly” community network envisioned by McAdams and Lessig is suddenly faced with private “wireless” communications and other technical advancement? Since the community-owned enterprise has a community investment in the physically-wired infrastructure of the system (an investment which it will try to protect) and since this community (e.g. a municipality) also runs the political management of the community, experience has shown that the first thing that is done by such government entities is to wipe out the modernizing competition, either directly, or indirectly by passing laws and requirements making the competition unable to compete – all of which ultimately leads to the type of economic inertia which has always marked Marxist systems.

Look at Germany, where wireless antennas have recently been challenged by community powers as being possibly harmful to the health of the community. If communities owned the older, competing systems, these newer systems would have no chance. Governments in this manner would be able to stop and stifle competition. In the private corporate world, by contrast, the only way to survive is to keep up with the new developments and if possible to even be ahead of them.

McAdams and Lessig are merely advocating ideas which have been proven to be long-term unworkable time and time again in other economic spheres.

Another Voice contra McAdams and Lessig

Corante – Arnold King (Ph.D. Economics, MIT) – The Bottom Line: the Economics of IT – Lessig Again

Other Voices pro McAdams and Lessig

Venturpreneur – D. Gordon Smith and here

Hobbs Online A.M. – Bill Hobbs