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hague.html (14010B)

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 <title>Harm from the Hague
 - GNU Project - Free Software Foundation</title>
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 <h2>Harm from the Hague</h2>
 
 <address class="byline">by <a href="https://www.stallman.org/">Richard
 Stallman</a></address>
 
 <p><i>June 2001</i></p>
 
 <p>
 Europeans have energetically opposed and thwarted the attempt to
 introduce software patents in Europe.  A proposed treaty, now being
 negotiated, threatens to subject software developers in Europe and
 other countries to U.S. software patents&mdash;and other harmful
 laws from around the world.  The problem is not just for programmers;
 authors of all kinds will face new dangers.  Even the censorship laws
 of various countries could have globalized effect.</p>
 
 <p>
 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 bring the judgment to a court in whichever
 country he lives in (or has assets in) for enforcement.</p>
 
 <p>
 The treaty becomes a problem when it is extended to distribution of
 information&mdash;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 <strong>any</strong>
 Hague country, and the judgment would probably be enforced by your
 country.</p>
 
 <p>
 For instance, if you release a software package (either free or not)
 in Germany, and people use it in the U.S., you could be sued for
 infringing an absurd U.S. software patent.  That part does not depend
 on Hague&mdash;it could happen now.  But right now you could ignore
 the U.S. judgment, safe in Germany, and the patent holder knows this.
 Under the Hague treaty, any German court would be required to enforce
 the U.S. judgment 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 U.S. or Japanese or
 Egyptian software patents can reach you there.</p>
 
 <p>
 But patent law is not the only area of law that could wreak havoc 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 U.K. libel law.  The laws of your
 country may support the right to criticize a public figure, but with the
 Hague treaty, they won't necessarily protect you any more.</p>
 
 <p>
 Or suppose you publish a statement comparing your prices with your
 competitors' prices.  If this is read in Germany, where comparative
 advertising is illegal, you could be sued in Germany and the judgment
 brought back to you wherever you are.  (Subsequent note: I've received
 word that this law may have been changed in Germany.  The point is the
 same, though&mdash;any country could have such a law, and some other
 European countries may still have one.)</p>
 
 <p>
 Or suppose you publish a parody.  If it is read in Korea, you could be
 sued there, since Korea does not recognize a right to parody.  (Since
 the publication of this article, the Korean Supreme Court affirmed the
 right to parody, but the general point remains.)</p>
 
 <p>
 Or suppose you have political views that a certain government prohibits.
 You could be sued in that country, and the judgment against you there
 would be enforced wherever you live.</p>
 
 <p>
 Not long ago, Yahoo was sued in France for having links to U.S. sites
 that auctioned Nazi memorabilia, which is lawful in the U.S.  After a
 French court required Yahoo France to block such links, Yahoo went to
 court in the U.S., asking for a ruling that the French judgment cannot
 be applied to the parent company in the U.S.</p>
 
 <p>
 It may come as a surprise to learn that exiled Chinese dissidents
 joined the case in support of Yahoo.  But they knew what they were
 doing&mdash;their democracy movement depends on the outcome.</p>
 
 <p>
 You see, Nazism is not the only political view whose expression is
 prohibited in certain places.  Criticism of the Chinese government is
 also prohibited&mdash;in China.  If a French court ruling against
 Nazi statements is enforceable in the US, or in your country, maybe a
 Chinese court ruling against anti-Chinese-government statements will
 be enforceable there too.  (This might be why China has joined the
 Hague treaty negotiations.)  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.</p>
 
 <p>
 China is not the only country to ban criticism of the government; as
 of this writing, the government of Victoria (Australia) is suing to
 suppress a book called Victoria Police Corruption on the grounds that
 it &ldquo;scandalizes the courts.&rdquo; This book is available on the
 Internet outside Australia.  Australia is a Hague treaty participant;
 if the treaty applies to such cases, an Australian court judgment
 against the book could be used to suppress it elsewhere.</p>
 
 <p>
 Meanwhile, works that criticize Islam have faced increasing censorship
 in Egypt, a Hague treaty participant; this too could be globalized by
 the Hague treaty.</p>
 
 <p>
 Americans may turn to the First Amendment to protect them from foreign
 judgments against their speech.  The draft treaty permits a court to
 ignore a foreign judgment that is &ldquo;manifestly incompatible with
 public policy.&rdquo; That is a stringent criterion, so you cannot
 count on it to protect you just because your conduct is legal where
 you are.  Just what it does cover is up to the particular judge.  It
 is unlikely to help you against broad foreign interpretations of
 copyright, trademarks or software patents, but U.S. courts might use
 it to reject outright censorship judgments.</p>
 
 <p>
 However, even that won't help you if you publish on the Internet,
 because your <abbr title="Internet service provider">ISP</abbr> either
 has assets in other countries or communicates to the world through
 larger ISPs that have them.  A censorship judgment
 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&mdash;and
 where there is no Bill of Rights, and freedom of speech does not enjoy
 the same exalted status as in the U.S.  In response, the ISP will shut
 off your site.  The Hague treaty would globalize pretexts for
 lawsuits, but not the protections for civil liberties, so any local
 protection could be bypassed.</p>
 
 <p>
 Does suing your ISP seem far-fetched?  It already
 happens.  When the multinational company Danone announced plans to
 close factories in France, Olivier Malnuit opened a site,
 jeboycottedanone.com, to criticize this.  (The name is French for
 &ldquo;I boycott Danone.&rdquo;) Danone sued not only him but his site
 hosting company and domain name registrar for &ldquo;counterfeiting of
 goods&rdquo;&mdash;and in April 2001 received a ruling prohibiting
 Malnuit from mentioning the name &ldquo;Danone&rdquo; either in the
 domain name or in the text of the site.  Even more telling, the
 registrar removed the domain in fear before the court made a
 ruling.</p>
 
 <p>
 The natural response for French dissidents is to publish their
 criticism of Danone outside France, just as Chinese dissidents publish
 their criticism of China outside China.  But the Hague treaty would
 enable Danone to attack them everywhere.  Perhaps even this article
 would be suppressed through its ISP or
 its ISP's ISP.</p>
 
 <p>
 The potential effects of the treaty are not limited to laws that exist
 today.  When 50 countries know that their court judgments could be
 enforced throughout North America, Europe and Asia, they would have
 plenty of temptation to pass laws just for that purpose.</p>
 
 <p>
 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 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 judgment on
 you, obeying the Hague treaty.</p>
 
 <p>
 Does this seem implausible?  In 2000, Cisco pressured Liechtenstein, a
 small European country, to legalize software patents.  And IBM's chief
 lobbyist threatened many European governments with a termination of
 investment if they did not support software patents.  Meanwhile, the
 U.S. trade representative pressured Middle Eastern country Jordan to
 allow patents on mathematics.</p>
 
 <p>
 <a href="http://tacd.org">A meeting of consumer organizations</a>
 recommended in
 May 2001 that patents, copyrights and trademarks (&ldquo;intellectual
 property&rdquo;) should be excluded from the scope of the Hague
 treaty, because these laws vary considerably between countries.</p>
 
 <p>
 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 or
 transmitting particular information should be excluded from
 globalization under the treaty, and only the country where the
 distributor or transmitter operates should have jurisdiction.</p>
 
 <p>
 In Europe, people opposed to software patents will be active in
 working to change the Hague treaty; for more information, see
 <a href="http://web.archive.org/web/20061209210148/http://www.noepatents.org/hague/index_html?NO_COOKIE=true">www.noepatents.org</a>.
 In the U.S., the Consumer Project for Technology is taking the
 lead; for more information, see
 <a href="http://www.cptech.org/ecom/jurisdiction/hague.html">www.cptech.org</a>.</p>
 
 <p>
 A diplomatic conference is slated to begin today (June 6, 2001) to work
 on the details of the Hague treaty.  We should make ministries and the
 public aware of the possible dangers as soon as possible.</p>
 
 <hr class="column-limit" />
 
 <p>
 There is more information about the problems with the Hague
 at <a href="https://web.archive.org/web/20210507012748/http://web.lemuria.org/DeCSS/hague.html">web.lemuria.org</a>.</p>
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 <p>Copyright &copy; 2001, 2022 Richard Stallman</p>
 
 <p>This page is licensed under a <a rel="license"
 href="http://creativecommons.org/licenses/by-nd/4.0/">Creative
 Commons Attribution-NoDerivatives 4.0 International License</a>.</p>
 
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 <p class="unprintable">Updated:
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