Professor Joseph Weiler has now written about the judgment in the criminal libel case brought against him in a French court. A decision was handed down by the Tribunal de Grand Instance de Paris on 3 March 2011.

The details of the matter are outlined in an earlier post. In short, Professor Weiler was sued as editor of an online international law journal regarding a book review posted in the journal’s book review website. The book review was written by German academic Thomas Weigend, about a book written by Dr Karin Calvo-Goller. The review was not favorable.

The eventual result, after some correspondence between Professor Weiler and Dr. Calvo-Goller (please see my earlier post for details), was a criminal action for defamation brought in a French court against Professor Weiler. The trial took place in Paris on 20 January 2011.

According to Professor Weiler, the main arguments presented by the defense were:

1. The Court should not exercise jurisdiction, as the matter is too remote from France.
2. The Court should rule that the criminal complaint by Dr. Calvo-Goller amounted to an abuse of process.

The Court upheld both arguments. Regarding the jurisdictional issue, the Court appears to have ruled that the complainant had not sufficiently proved that the review in question was actually viewed in France during the period in which a criminal complaint needed to be filed.

Regarding the abuse of process issue, the Court noted that Dr. Calvo-Goller admitted to “forum shopping”. The Court noted that the choice of the French legal system was “artificial”, and was done because bringing the case in France would: be of lowest cost to her; give her the best chance of success on its merits, due to the nature of French law; and had the greatest potential to result in “both opprobrium and significant costs to the accused” (from an unofficial translation from the judgment).

Further, the Court noted that the review was not defamatory and that the complaint was brought in bad faith, particularly given her identity as a lawyer and someone who studied (and is thus familiar with) French law.

The Court awarded Professor Weiler 8,000 Euros in damages (approximately US$11,000). The damages will be donated to a charitable cause.

The full judgment in French and an English translation will be published on the journal’s blog in the next few days.

Update (4 March 2011): The Chronicle of Higher Education has published an article on the judgment, which includes a link to the judgment (in French), a copy of which was provided to The Chronicle by Professor Weiler.

Professor Joseph Weiler has won the defamation action brought against him in a French court, which I discussed last month here.

So far I have not been able to find any more details about the ruling, but once I do will write a longer post.

What is the line between academic criticism of a work and defamatory statements about the author? A French court is currently considering this issue.

In 2007, a book review website,, published a review of a book by Dr. Karin N. Calvo-Goller about the International Crimimal Court. The review, written by Professor Thomas Weigend, then Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne, was not particularly favorable. Professor Weigend’s criticism included:

…in the main part of her book [the author] simply restates the contents of relevant parts of the ICC Statute and the Rules of Procedure and Evidence…

…this exercise in rehashing the existing legal set-up is particularly unproductive since a large part of the volume consists in a reprint of the ICC Statute and its Rules of Procedure and Evidence…

…analytical nuggets are all too rare…

…[the author’s] conceptual grasp of the “inquisitorial” systems seems insufficient for a critical analysis that might go beneath the surface…

However, the review clearly states that the fault is as much with the editor as with the author of the book:

Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC.

The review is certainly not at all favourable. But neither is it a personal attack on the author.

On the other side of the matter from the author is the editor of the journal in question, Professor Joseph Weiler. Professor Weiler is no recent entrant to the academic scene. He is a well-known and respected scholar, currently University Professor at New York University, as well as the Joseph Straus Professor of Law and European Union Jean Monnet Chair at NYU School of Law. He was previously a professor at Harvard Law School and the University of Michigan Law School, and has published widely–as well as having extensive experience as an editor of academic works. His full qualifications and experience, as both an academic and legal consultant, are too numerous to summarise here.

So how did Dr. Calvo-Goller respond to the poor review? First, she asked Professor Weiler, as editor, to remove the review from the journal’s website. She was unsuccessful in doing so, even after asking a second time. All of the details are set out here. A few months later, Professor Weiler was asked to appear before a magistrate in France to respond to charges of criminal defamation brought by Dr. Calvo-Goller.

A description of the hearings and how the suit came about, as told by Professor Weiler, is available here.

The trial has now taken place, and a verdict is expected on 3 March 2011.

I should disclose that I am a former student of Professor Weiler. But the motivation behind the suit does not seem right to me. Does claiming defamation in the form of an unfavourable book review strike anyone as discouraging free expression and communication? At the very least, it seems to be an inappropriate use of the legal process. Bad reviews of one’s work, while upsetting and sometimes damaging, also appear to be a fact of academic life.

At the very least, as the New York Times has noted, damage to Dr. Calvo-Goller’s reputation may not only be achived by the poor review, but by the criminal complaint itself.

This is a brief, excellent statement on why copyright term extension is a bad idea, written by a very authoritative, and not-at-all-radical-lefty-commie-pinko, law professors.

As an Australian, I read it with interest, and some sadness – we are already protecting the ‘record companies, ageing rock stars or, increasingly, artists’ estates’ via a term extension agreed to in the US-Australia FTA.

In case you hadn’t picked it up on the many places that have reported the news – the European Parliament has voted against a ‘three strikes’ policy which would require ISPs to ‘terminate’ internet access to repeat copyright infringers. Rapporteur Guy Bono commented:

‘The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion.’

Here here. Extended story: IP Watch. According to that story, the Parliament voted generally in favour of the report (report available here), but voted 314 to 297 on amendment 22 to request member states not to authorise shut-off as part of the graduated response to fight copyright violations.

Some colleagues of mine (Paul H. Jensen, Alfons Palangkaraya and Elizabeth Webster), from the Melbourne Institute of Applied Economic and Social Research, have published a new Working Paper that would be of interest to people who, like me, are fascinated by international dynamics in patenting. The paper is called ‘Application pendency times and outcomes across four patent offices‘.

OK, so it’s not the most exciting title in the world. But here’s the thing. They’ve got matched patents applied for in Europe, the US, Japan and Australia, and worked out differences – in outcomes, and how long it takes to get a patent – for the same invention. They’re measuring differences in approach between the different patent offices! How many people do you know who can do that? Here’s an extract from the introduction: (more…)

On proposing a 95 year term for copyright in sound recordings:

“I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances…” [European commissioner Charlie McCreevy; press release here]

I’ve become more interested in copyright bureaucracies, and patent and trade mark offices: how they operate; how transparent they are; who they are; how powers are divided between them; how they interact; how they characterise their role, their ‘customers’, and their ‘stakeholders’. How we make them accountable for the decisions they make – or how we fail to do so. Regular readers may have noticed this flavour seeping into some of my more recent posts and papers.

Today, my little obsession is the growth of cooperation between Patent Offices around the world. While there’s long been cooperation (Trilateral Cooperation, for example, between the US, Japan and Europe was set up as early as 1983) I’ve been detecting an increase in the number of press releases in this area, and the number of mooted pilots and activities. So, being the obsessive that I am, I thought I’d collect together what’s been going on – at least as published, that I can find – and offer a few thoughts and questions that these developments raise. (more…)

While Google is currently the dominant player in the Internet search engine business, that doesn’t mean that there is not a great deal of activity among companies vying for a piece of the action. As was recently reported, even 1% of the global search market represents quite a bit of money.

Not all search engine companies use the same strategies to capture market share, however. (more…)

You will find, after a period of seriously heavy blogging recently owing to the Australian Copyright Amendment Bill, this blog will be a lot less active in the next while.

I’m in Melbourne, but preparing for a permanent move to the University of Queensland, site of the excellent ACIPA research centre on IP in January, and in any event, the urgency has gone out of the whole blogging thing now that the Bill is more or less done and dusted. We are all a bit copyrighted and commented and submissioned and discussioned out.

But there’s a couple of interesting things going on: one in open access in Australia, one in copyright in Germany. More over the fold… (more…)

As we await the implementation of the OzDMCA, it’s been interesting to follow the debates, over in Europe and elsewhere, about Apple’s iTunes/iPod link. The basic issue here is that iTunes-purchased music can only be played on Apple iPod players – unless, of course, you hack the Apple FairPlay encryption (which can be done using various well-known methods).

The issue, of course, is that if someone buys a whole bunch of iPod music, then you get lock in – they’ll be more reluctant to move to another player. The technological protection, in other words, might serve to raise barriers to entry in the music player market. It’s attracted a bunch of attention recently. Here’s the brief summary:

  1. A few people got very excited when Microsoft announced it would be coming out with a new player/music service, so far named Zune, and that, to get out of this lock-in system, Microsoft would be looking to replace, for new users, any music they’d bought on iTunes. Have a look at the debate over on Freedom-to-Tinker (Post 1 and Post 2);
  2. In France, we had the DADVSI law – originally seen as potentially ‘forcing’ FairPlay open, the final form of the law has, according to reports, seen the provisions on interoperability eviscerated (see the Wikipedia entry on DADVSI here)
  3. Now, in Scandinavia, we have news today that Apple Computer Inc. met a Tuesday deadline with a 50 page response to Scandinavian regulatory claims that Apple is violating their laws by making its market-leading iPod the only compatible portable player for iTunes downloads. So far, the response is confidential.

What’s that phrase? Stay tuned? And perhaps watch for what the effect of any Australian law will be on all this…

Today’s funny moment is from The Australian, which is carrying a story that French cosmetic company L’Oreal has won a copyright suit against a Dutch company for copying a perfume. The story appears to have originated in The Times, but does not as yet appear to have been widely syndicated. The bizarre thing, of course, is how such a claim could be brought in copyright. (more…)

For the first time, the Court of First Instance has annuled the European Commission‘s approval of a company merger. In January 2004, Sony and BMG notified the Commission that they intended to merge their worldwide music recording businesses (except for Japan) into a joint venture. In July 2004 the Commission approved the joint venture in Europe, and SonyBMG started business.

This week, in an action brought against the Commission’s decision by Impala, an organisation representing 2,500 independent music publishing and record labels, the CFI ruled that the Commission had failed to satisfy the legal requirement that the combined music recording businesses of Sony and BMG would not come to hold monopoly power.

What this decision means for the joint venture is unclear–reports state that Sony and BMG will need to lodge a new notice, and the Commission will undertake a new analysis of the transaction. But the conclusion reached could be the same. If it is not, it will be interesting to see how a joint venture that has been operating for two years will be unravelled.

From GrokLaw, the District Court of Amsterdam has upheld the validity of the Creative Commons Attribution-Noncommercial-Sharealike license. Adam Curry, a well-known media figure now living in Holland, posted some pictures of his family on photo-sharing site Flickr (his profile appears to be here). The photos carried a notice saying “This photo is public”, and were published under a non-commercial Creative Commons licence. A Dutch magazine reprinted four of the photos in a story on Curry and his children. (more…)

Following on my post the other day about courts ordering the release of “private” data about net usage, an interesting case in point is a decision of the Dutch Supreme Court in late November, which ordered Lycos to reveal the identity of a user of one of its websites who had anonymously posted slanderous (or potentially slanderous) allegations against a postage stamp dealer. (more…)

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