The Court of Appeal has asked the European Court of Justice (ECJ) to decide whether online publishing takes place where information is hosted or where it is read. The High Court had previously said that a company is responsible for "making available" material where a server is based rather than where the reader accesses it, but …
"The Court of Appeal has asked the European Court of Justice (ECJ) to decide whether online publishing takes place where information is hosted or where it is read."
I would say that there is a third way that better fits the term publishing. To me the act of publishing happens where the data is actually sent from. So I am publishing this comment from the desk at which I'm sitting. Regardless of the location of the server or the reader I would say the act of publishing occurred where I'm sitting now.
Further to this El Reg and their hosting company are complicity in this act of publishing.
I think this is the only sensible option and i would expand slightly to say the jurisdiction should be where the legal entity (i.e. the person or company) resides or operates. If the jurisdiction is where the server is located i could set up a company called MyPirateMP3s.com in the UK, set up some servers in some obscure country with lax copyright laws and simply say to the court it's not your jurisdiction my servers are in Swaziland or wherever. Conversely if you are subject to the jurisdiction of wherever the person accessing the site is located then to run a globally legal website you would have to comply with the local laws of every single country in the world with internet access.
The law is incompatible with the technology, and needs to be re-written as a global law to accomodate a global platform.
Cyberspace does not fit with our concept of international boundaries, and most attempts to make it fit will fail, or at best will dicriminate one party over another.
I'm not saying a global law is a simple option - just pointing out that we need to accept it.
But who's version of Global law?
US (yes we know they already think it is), UK, EU China, Saudi, Uzbekistan?
All have completly different views on what is correct and what isn't.
@AC D'oh!, you missed the point.
There would only be one Global Law, applicable everywhere. Call it International Law, call it Global Law, call it Cyberspace Law.
It's more about us being citizens of planet earth than of any one nation. A philosophical option instead of building on the existing letter of the law and its boundaries. It's a concept to match Cyberspace, not about physical borders.
Absolute fantasy for now - but it will have to happen one day.
Which part of "global" didn't you understand? It's not *one* country's version of what it should be, we need a global agreement which everyone can sign up to.
Of course we also need to ensure that the MPAA et al don't get to dictate to everyone what the law should be...
The difference between satellite and the internet
is that with that satellite you have some control as to where the signal ends up; the satellite is very clearly and deliberately hung in (non-national) /space/ and its ground station very deliberately set up just to feed that satellite and make that signal end up in a certain area. So there, it makes perfect sense to hand jurisdiction to the receiving end. The thing was set up that way.
On the internet that is just so much wishful thinking. The servers just sit somewhere and everybody else makes a connection to that server and asks for the information. Though the ease of crossing borders with those requests and their replies is making those national borders more of a nuisance and legal fiction than something anybody else really cares about. Right up until you need to make the law do your bidding, of course.
You could argue that with your servers set up to only allow access from certain countries you could create a situation sufficiently similar to satellite, but it's a much less exact science and with a lot of on-going work to subvert any restriction you impose there, too. Though I usually use "who has control?" as a yardstick, filtering as a legal argument is something I'd rather stay well away from. You also (presumably) have control where you put your servers and that's a much simpler legal yardstick, for one because it takes much longer to move servers than it takes to change filtering rules.
Virtualisation is gnawing away at jurisdiction there, too, so we might end up having to simply declare nationality and thereby jurisdiction of the hosted services and content eventually, but that's not relevant to this case, hopefully.
The nationality of the author or the jurisdiction of where his desk sits isn't at all a better substitute, simply because there's not necessarily a ready record of that, and even if there is it might cause lots of impractical conflict. Think china claiming jurisdiction on facebook servers because some dissident wrote things on it they don't agree with. Can they even prove the dissident wasn't in some other country when he published that? Or is time of publishing not important? Again, as you try to pry the proposition apart, soon you ought to notice that the notion is not tenable.
I agree with the first post
I am writing this as a passenger in a car in France. It will be sent to a British site, hosted wherever, and maybe read in Uzbekistan... WTF? Am I supposed to know the ins and outs of the legal system in a country I can't even find on a map? As far as I am concerned, written in France, so French/EU...
Surely the place where something is "made available" is the place where it was previously unavailable?
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