[Fsfe-france] Convention de la Haye et danger pour le logiciel libre

[Frederic Couchet]

communiqué de presse d'Eurolinux qui va être envoyé :
petition.eurolinux.org/pr/pr11.html

Ci-dessous draf d'un texte de RMS à ce sujet.

Commentaire de JPS:

ATTENTION : il s'agit d'un sujet potentiellement sensible (cf. procès Yahoo). 
D'où la phrase "ne rien faire tant que l'on ne connait pas la portée des 
plans actuels sur Internet et le logiciel libre" En particulier, il vaut 
mieux parler de "l'impossibilité technique de bloquer l'accès au contenu" et 
donc du risque "d'une censure des contenus français en raison de décisions à 
l'étranger" ou du risque de voir "les brevets internet américains s'appliquer 
en France". Il vaut mieux éviter de réclamer ce qui ressemblerait à forme de 
liberté d'expression absolue, car ce n'est pas politiquement correcte en 
France.

Bref, il vaut mieux faire peur sur les risques de cette convention que de 
défendre le droit à publier chez soi ce qui est légal chez soi, dans la 
mesure où cette deuxième position est équivalente proche d'une position de  
défense la liberté d'expression absolue.

Parler du cas Danone, DeCSS, etc. utile.



From: Richard Stallman <address@hidden>
Subject: Please look at this draft
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This is an almost-finished draft of an article explaining the danger
of the Hague treaty.  Are you interested in campaigning against it?
Should I include the URLs at the end in this article?

Do you have any other suggestions for changes?

Can any of you confirm that price-comparison advertising
is illegal in Germany?

The free software community has taken the lead in opposing software
patents in Europe.  The Hague treaty, now being negotiated, threatens
to subject software developers in Europe and other countries to US
software patents--and many other harmful laws from a variety of
countries.  Even laws of censorship might have global effect.

The Hague treaty is not actually about patents, or about copyrights,
or about censorship, but it affects all of them.  It is a treaty about
jurisdiction, and how one country should treat the court decisions of
another country.  The basic idea is reasonable enough: if someone hits
your car in France or breaks a contract with your French company, you
can sue him in France, then enforce the judgement in whichever country
he lives in.  The treaty becomes a problem when it is extended to
distribution of information--because information now travels normally
and predictably to all countries.  (The Internet is one way, but not
the only way.)  The consequence is that you could be sued about the
information you distributed under the laws of *any* Hague country, and
the judgement would be enforced by your country.

For instance, if you release a software package (either free or
proprietary) in Germany, and people use it in the US, you could be
sued for infringing an absurd US software patent.  That part does not
depend on Hague--it could happen now.  But right now you could ignore
the US judgement, safe in Germany, and the patent holder knows this.
Under the Hague treaty, any German court would be required to enforce
the US judgement against you.  In effect, the software patents of any
signatory country would apply to all signatory countries.  It isn't
enough to keep software patents out of Europe, if US or Japanese or
Egyptian software patents can reach you there.

But patent law is not the only area of law that could cause disaster
if globalized by the Hague treaty.  Suppose you publish a statement
criticizing a public figure.  If copies are read in England, that
public figure could sue you under the strict UK libel law.  The laws
of your country may support the right to criticize a public figure,
but with the Hague treaty, they won't protect you any more.

Or suppose you publish a statement comparing your prices with your
competitors' prices.  If this is read in Germany, where price
comparison advertising is illegal, you could be sued in Germany and
the judgement brought back to you wherever you are.

Or suppose you have political views that a certain government
prohibits.  You could be sued in that country, and the judgement
made there would be enforced against you wherever you live.

Not long ago, Yahoo was sued in France for having links to US sites
that auctioned Nazi memorabilia, an activity that is legal in the US.
After the French court required Yahoo to block such links in France,
Yahoo went to a US court, asking it to rule that the French judgement
cannot be applied in the US.

It may come as a surprise that Chinese dissidents in exile in the US
joined the case, in support of Yahoo.  But they had a good reason to
do this: their movement's existence depends on the outcome.  You see,
Nazism is not the only political view whose expression is prohibited
in certain places.  Criticism of the Chinese government is also
prohibited--in China.  If a French court ruling against Nazi
statements were enforcible in the US, or in your country, maybe a
Chinese court ruling against anti-Chinese-government statements will
be enforcible there too.  Perhaps this is why China has joined the
negotiations for the Hague treaty.  The Chinese government can easily
adapt its censorship law so that the Hague treaty would apply to it;
all it has to do is give private individuals (and government agencies)
the right to sue dissident publications.

Works that criticize Islam have faced increasing censorship in Egypt,
a Hague treaty participant; this too could be globalized by the Hague
treaty.

Americans might think that the first amendment will protect them from
foreign censorship laws.  The draft treaty does allow a court to
reject a foreign judgement if it is contrary to public policy, and US
courts might reject these judgements.  But that won't help you if you
publish on the Internet, because your ISP either has assets in other
countries or communicates to the world through larger ISPs that have
them.  A censorship judgement against your site, or any other kind,
could be enforced against your ISP, or your ISP's ISP, in any other
country where it has assets.  In response, it will shut off your site.
The first amendment will still exist, but since the Hague treaty will
globalize only lawsuits, not civil liberties, its protection will be
bypassed.

The possible effects of the treaty are not limited to laws that exist
today.  When 50 countries know that their court judgements could be
enforced throughout North America, Europe and Asia, they would have
plenty of temptation to pass laws just for that purpose.

Suppose, for example, that Microsoft would like to be able to impose
copyright on languages and network protocols.  They could approach a
small, poor country and offer to spend 50 million dollars a year there
for 20 years, if only that country will pass a law saying that
implementing a Microsoft language or protocol constitutes copyright
infringement.  They can surely find some country which would take the
offer.  Then if you implement a compatible program, Microsoft could
sue you in that country, and win.  When the judge rules in their favor
and bans distribution of your program, the courts in your country will
enforce the judgement on you, obeying the Hague treaty.

A meeting of consumer organizations (http://www.tacd.org) recently
recommended that patents, copyrights and trademarks ("intellectual
property") should be excluded from the scope of the Hague treaty,
since these laws vary considerably between countries.

That is a good recommendation, but it only solves part of the problem.
Patents and bizarre extensions of copyright are just two of many
excuses used for suppression of publication in certain countries.  To
solve the problem thoroughly, all cases about the legality of
distributing particular information should be excluded from the
treaty, and only the country where the publisher operates should have
jurisdiction.

In Europe, I hope that the free software community will lead the way
in opposing this treaty, as part of its efforts to keep Europe free of
software patents.  Look at www.ffii.org and www.april.org for more
information.  In the US, the Consumer Project for Technology is taking
the lead; see http://www.cptech.org/ecom/jurisdiction/hague.html for
more explanation.

A diplomatic conference is slated to begin on 6 June 2001 to work on
the details of the Hague treaty.  We should make ministries and the
public aware of its dangers as soon as possible.

-- 
Petition contre les brevets logiciels      http://petition.eurolinux.org/
Frederic Couchet                     Tel: 06 60 68 89 31 / 01 49 22 67 89
APRIL                                               http://www.april.org/
Free Software Foundation Europe                 http://www.fsfeurope.org/