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France is Different, Really

This post illustrates that even countries with legal traditions very different from that of the United States can teach Americans something about values. In France, criminal investigations follow the “j’accuse” model, under the Code pénal, where a single judge — known as the Juge d’Instruction — controls investigation and charging of suspects, and under which a defendant’s silence can be held against him and the burden of proof is far less than the “beyond a reasonable doubt” standard required here. France has also taken a rather different approach to civil law on the Internet, for instance holding Yahoo! liable for anti-semitic postings by users.

But these differences also go in another direction. Several weeks ago the French Assembly passed a measure, known as the “three strikes” law, that required ISPs to terminate Internet access for users found to have downloaded copyrighted materials at least three times. That law has now been set aside as unconstitutional (yes, France actually has a constitution!) by the French courts.

The French Constitutional Council ruled Wednesday that the law’s reliance on the government committee to make decisions on when to cut off people’s Internet access made it incompatible with the French Constitution. Since the “Internet is an element of freedom of speech and the right to consume,” only a judge has the power to deprive someone of it, according to the decision.

As a result, the law will be enacted without the “third-strike” of cutting off Internet access. Instead the government agency only will be permitted to send out mail and email warnings to suspected pirates. If it wants to further sanction an alleged illegal downloader, it will have to go to court.

Sarkozy’s Web-Piracy Fight Dealt Blow [WSJ.com].

While the decision rests ultimately on what we in the U.S. would term separation-of-powers, namely the relationship among different branches of government, it also introduces a concept completely alien to the American legal system. Although the Declaration of Independence starts with several self-evident truths, “liberty” and the First Amendment have never been interpreted to protect a “fundamental right” to communicate via the Internet, let alone break copyright laws. So in the U.S., a government agency can access one’s Internet usage from an ISP without a warrant (and sometimes without a subpoena) and a subscriber’s relationship with his or her ISP is a creature of private contract, not statutory, let alone constitutional, protection.

I am not suggesting that America adopt any or all of the French code-based legal system. What I believe this shows, however, is that even cultures which most Americans would regard as less concerned with the basic freedoms of its citizens — Americans would never stand for a system under which prosecutor and judge were combined in a single agency, judge or other government official — can teach us something about the values underlying the legal relationship of people to their government. Here in America we are blessed with constitutional rights. But basic human needs, like housing, jobs and medical care, are not a legal right. Internet access is very important to success in today’s economy, and I for one suggest that perhaps a debate on whether relegating that issue to the private, unilateral terms of service (ToS) of ISPs and Web site operators is a paradigm that is unlikely to be successful in the long term.

Goodbye “freedom fries.” You Frenchies aren’t so bad after all.

Who Owns Social Media UGC?

Two weeks ago there was a major outcry within the Facebook community over revised Terms of Service (ToS) for the hugely popular social networking site. The gist of the protest was an implication in the new ToS that Facebook claimed “ownership” of user-generated content (UGC) and reserved the right to market it for for commercial purposes.

Facebook ToS

Facebook ToS

That conclusion would be rather stupid from a business perspective and was quickly disowned by Facebook management. Facebook CEO Zuckerberg: “We Do Not Own User Data” [Mashable]. But because this was a Website policy, changeable unilaterally without user consent, it leaves unanswered the larger question of whether UGC is owned by the person posting the content, the person on who’s page/site the content appears or the owner of the service/server. The issue is WAY broader than Facebook. It applies, for instance, to comments posted on newspaper sites, blogs, photos shared on Flickr and the like, and many more applications.

Today I am not trying to answer the question, rather raising some. In the law of traditional commercial relationships — say banking or telephony — the “content” one shares with a company is owned by the corporation. Your banking records can be obtained by the government without your consent because they are “owned” by the bank. Only sector-specific privacy laws like Gramm-Leach-Bliley, which are altogether too rare in the United States, limit what the company can go with data arising from its relationship with customers. Hence, Facebook was possibly wrong (although correct from a customer relationship standpoint) to argue that it needed a license from one user to display his/her content on the “Wall” of another user, even when the first person had affirmatively decided to share that UGC by posting it within Facebook.

But what of corporations as employers? Since the law is settled, right or wrong, that a company owns emails generated on its systems, regardless of whether work-related, will that same conclusion hold for social communications sent and received via an enterprise Internet connection? And what of copyright; if a user posts photos to a sharing site, does that act imply either abandonment of their ownership interest or the grant of a “fair use” right to republication in full to the world?

These are interesting, and perhaps important, questions in the developing law of social media. Stay tuned here for more analysis and discussion as we make some tentative predictions of how the law will evolve and whether, in the ultimate analysis, it matters.