He says that there is a “myth” of software patents being used as a tool of dispossession against the copyright programmers earned by writing something. This is a “myth”, in his view, since programmers need to check for patents, just as someone who wants to build somewhere needs to check the property status of the real estate in question.

He then goes on, however, to explain that it is actually impossible for most software authors to do the patent check. That means he is refuting his own point.

I entered the following comment at his blog:

From your point of view, anyone who wants to write a program needs to check first if there any prohibitions on writing it. No one does that, since it would be much too expensive, as you explain convincingly above.

If software patents could be checked as easily as the ownership of some real estate, people would have much less reason to complain. That, however, is not reality. Your point of view that programmers need to check patents before writing something is refuted by your own analysis.

This is the first time the sum of allowances under the European Union Emission Trading System is set by the Commission for the whole block.

This number will be reduced every year by 1.74 percent, which amounts to 35 374 181 allowances.

Their proposals seem to be reasonable and worthy of support. On first impression, the best feature is how they group various limitations with similar functions, and how they clearly include guidelines on compensation for their limitations. For example, their proposed Article 5.3 reads:

Art. 5.3  Uses Permitted to Promote Social, Political and Cultural Objectives

(1) The following uses for the purpose of promoting social, political and cultural objectives are permitted without authorisation and without remuneration, and to the extent justified by the purpose of the use:

(a) use for the benefit of persons with a disability, which is directly related to the disability and of a non-commercial nature;

(b) use to ensure the proper performance of administrative, parliamentary or judicial proceedings or public security;

(c) use for the purpose of non-commercial archiving by publicly accessible libraries, educational establishments or museums, and archives.

(2) The following uses for the purpose of promoting important social, political and cultural objectives are permitted without authorisation, but only against payment of remuneration, and to the extent justified by the purpose of the use:

(a) reproduction by a natural person for private use, provided that the source from which the reproduction is made is not an obviously infringing copy;

(b)  use for educational purposes.

I am pleased to see no exception for Internet search engines on that list. And if this kind of framework becomes accepted, anyone proposing to introduce such a limitation as opposed to just creating it as case law will need to address how much the search engines need to pay the copyright holders.

In contrast to Japan the German treaty violation is done by case law, by a decision of the Federal Court of Justice from April 29. The decision as such is not yet online, only a press release (in German).

That particular case was about an artist objecting to Google displaying thumbnails of her works published on her website. The lower court ruled that this is in violation of copyright, but had Google win anyway on a theory of abuse of legal rights. Since the plaintiff had done some search engine optimization her lawsuit was found to be contradicting her own prior behavior.

In contrast, the Federal Court of Justice relies on the theory developed earlier by former judge at the Court v. Ungern-Sternberg that makes up implied permissions out of thin air where there are none, or as in my case as a web author, fierce and clearly expressed opposition to spam empires getting a free ride on other peoples’ creative efforts.

As far as the press release goes, it is just the same old story that web authors can opt out easily and therefore are presumed to opt in.

I will have to wait for the full decision to be published. But actually I would be surprised if the Court discusses the clear violation of the Berne Convention that follows from his theory. The earlier article by v. Ungern-Sternberg overlooked that aspect.

So, for the moment, I will just take the occasion to once again object to the opt-out model.

While it is correct that people can easily opt out, the same is true for opting in. Anyone who actually wants search engines can declare so in their robots.txt file. So that whole argument can easily be turned around completely. Since it is so easy to opt in, anyone who does not take the trouble to do so must clearly be assumed to opt out. There is no logical reason for one of those views to prevail.

And this case makes clear that the assumption of permission is completely fictitious.

Here we have a creator of works that takes the trouble to sue the largest media company in the world, with their high-priced lawyers and endless resources. She pays large lawyers fees and spends years fighting against Google. And at the end of all that, the Federal Court of Justice assumes that she wants to permit Google’s use of her works. Or that at least Google can reasonably assume that.

Of course she does not want to permit any such thing. If she did, she wouldn’t be suing in the first place. So this decision just claims the right to decide in place of the copyright holder what is best for her and what she should be permitting, where it is quite clear that her actual will is on the opposite side.

Neither German copyright law nor the European Directive have an exception for search engines. This decision of the Federal Court of Justice attempts to create one anyway. That is not in the power of the Court, who is overstepping his competences, while violating international Treaties in the process. If the friends of the evil spam empire want to slap the copyright holders in the face with this new exception, they need a majority for legislation.

Such legislation would need to address why Google gets away with using other peoples’ works without compensation, while use for personal purposes or for inclusion in a school text book triggers compensation. In the latter case the German Federal Constitutional Court actually insisted as a matter of human rights on that compensation. Why a small publisher of school textbooks needs to pay while Google with its billions of profit gets all content for free is not easy to explain.

Such legislation would need to address why it is incompatible with European principles of copyright and the Berne Convention when Google digitizes books and makes them searchable without prior consent, but why those principles suddenly cease to apply once the copyright holder chooses to place his content on the Internet. Where is the difference?

And such legislation would need to address the scope of the search engine exception. Exactly what is necessary to qualify as a “search engine” use? Can search engines also mirror whole sites in their cache, taking reader numbers from the original site? Can they offer machine translations?

I doubt that this single decision by the Federal Court of Justice will be able to answer all these questions. It will be interesting to come back to the question once the decision itself is online.

See also this short comment on the Google European Public Policy Blog.

While the Court did hold the German implementing law unconstitutional, making it seem as if the plaintiffs had won something, on the basic question liberty lost. Germany is still obliged under EU law to implement preventive data retention. Even if that will be done in a slightly different way required by this decision, the decision does not hold preventive data retention as such unconstitutional, as it should have done. Treating all your citizens all the time as potential criminals is not compatible with any meaningful right to privacy of telecommunications. Not one of the eight judges deciding the case was on the side of the plaintiffs and on the side of human rights protection in this basic question. Two of them even would have agreed with the implementing measures.

This total failure of the Court might be explained partially by the fact that the human-rights violating outrage in question was not enacted as a German law, but rather at the EU level. The German Constitutional Court has given politicians at the EU level the right to violate the human rights formerly guaranteed in the German Constitution without limits. In the past decisions on this fundamental question, the German Court told citizens to seek human rights protection against EU legislation elsewhere (with the European Court of Justice).

While it is a sorry state of affairs to have total surveillance of all citizens all the time affirmed by all judges, there is one positive aspect even to this decision, hidden in paragraph 218 of the ruling. To quote just one sentence:

“Dass die Freiheitswahrnehmung der Bürger nicht total erfasst und registriert werden darf, gehört zur verfassungsrechtlichen Identität der Bundesrepublik Deutschland.” (It is part of the constitutional identity of the Federal Republic of Germany, that the citizens’ use of their freedom may not be completely recorded and registered).

That is “preventive Constitutional law”. While, sadly, the decision gives total surveillance a pass this time, the majority also says that this is as far as they are willing to go. Even the EU legislator may not use this as a model for other data retention laws, for example on library records, surveillance cameras, visited Internet pages, or use of transportation. That is a very vague threat of stopping further total surveillance projects, but it is backed up with a reference to the 2009 decision on the Lisbon Treaty, where the Court has actually asserted the right to control even EU legislation for compliance to the fundamental values of the German Constitution.

This is the first time that the German Constitutional Court has actually dared to declare some kind of limit to legislation at the EU level. That is some kind of progress.

As far as Germany is concerned, opponents of total surveillance are reduced to campaigning for political repeal of the Surveillance Directive at the EU level. One way or another, this question will still get to the European Court of Justice, who will then have an opportunity to show citizens if the brand new Article 7 of the Charter of Fundamental Rights given legal force by the Lisbon Treaty actually guarantees some minimum of respect for private communication. And one way or another, this will be decided by the European Court of Human Rights.

I have been highly critical of Google’s privacy policy on this blog. However, that court decision is clearly wrong. Under Article 14 of the 2000 Directive on Electronic Commerce, providers of information society services are not liable for content uploaded by their users, as long as they remove illegal content expeditiously upon getting aware of it.

The video file in question was removed within hours after the notification by Italian police. Requiring more from service providers like Google would mean an obligation to monitor user content, which is excluded by Article 15 of the Electronic Commerce Directive.

Damn. That Italian court is so wrong even I need to come out on Google’s side in this case.

“Chapter Seven  Standards for Prohibition of Collecting Information made Available for Download.

Article 4-4 The standard of Article 7-5 of the copyright law execution ordinance means that the person defined in Article 47-6 of the copyright law (including the case of application under Article 102, Paragraph 1 of the copyright law. The same applies for the rest of this Article) takes one of the following measures to prohibit the collecting of information following established customs.

1. Write the following statements into a electronic file called “robots.txt” which is made available for download (electronic file as in Article 31 of the copyright law. The same applies for number 2 below).

a) A prohibition of the collection of information by the person defined in Article 47-6 of the copyright law directed at programs.

b) Specification of the scope of the prohibition of the collection of information by the person defined in Article 47-6 of the copyright law.

2. Writing a prohibition of the collection of information made available for download by the person defined in Article 47-6 of the copyright law into an electronic HTML or similar file which is made available for download.”

Number 2 above also includes a definition of “HTML”. I refrain from translating it here, since it is absolutely useless. Anybody applying this Article already knows what hypertext markup language is.

In contrast, Number 2 above does not require that the prohibition is included in the appropriate metatag. See for example the explanation “The Robot META Tag Values” at SearchTools.com. However, since the whole standard requires adhering to “established customs” it would be not sufficient to just write some prohibition in the body of the text where the robots would not find it.

Number 2 does not require to specify the scope of the prohibition. That is probably because it is contained in the head of a single page anyway, so it is clear without specification that the page in question is included in the scope,while some other page without the metatag is not. However, under established customs it is possible to do partial prohibitions. For example, someone might direct Google to provide no snippets or not to follow links (as a countermeasure to link spam). These possibilities are not reflected in number 2. But again, under “established customs” it would make no sense to allow them in robots.txt but not in html metatags.

I have no idea what the Ministry means to say by “file similar to html”.

However, it becomes clear when reading the relevant Government Ordinance and the Culture Ministry Ordinance that were issued on December 28, 2009 and are published in Official Journal Special Edition (官報号外）275.

Government Ordinance 299 introduces a new Article 7-5 in the Copyright Law Execution Ordinance (著作権法施行令）. That Article gives a definition of the term “search engine business”. In my translation, that definition is:

The standard for collecting, organizing and providing information made available for download under Article 47-6 of the copyright law (including the case of application under Article 102, Paragraph 1 of the copyright law. The same applies for number 2) is laid down as follows.

1. Collecting, organizing and providing information made available for download must be done automatically by a computer program.

2. Information for which the person defined in Article 47-6 of the copyright law has prohibited the collection following the standard laid down by ordinance of the Ministry of Education, Culture, Sports, Science and Technology must not be collected.

3. When trying to collect information made available for download the search engine finds that measures under the previous number are taken, that information must be deleted.

Basically it gives search engines the right to copy without a license as far as that is necessary to run their search business. It also gives them the right to display a cached copy of pages linked to in the search results, thereby taking readers from the original site.

The limit to that exception is that it provides for an opt-out for the copyright holder. If they declare in the robots.txt file or in an appropriate html metatag that they don’t want search engines indexing their site, the exception does not apply.

That is in clear violation of Article 5 of the Berne Convention.  Paragraph 2 of that Convention reads:

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

Writing an opt-out into a robots.txt file is a formality, just like the old “all rights reserved” necessary in books published before America joined the Berne Convention. A copyright holder can only assert his copyright against search engines if he jumps through that particular hoop.
Requiring this formality is in clear violation of the Convention. If legislators want to hand out special favors to multibillion search engines, they need to do so without an opt-out clause.