The answer to the question that I know you’ve all been asking yourselves (i.e., “Where’s David Post, and why hasn’t he posted anything of late to the VC? — even just to pitch his book!) is: I’m teaching this summer at our Rome program, and between adjusting to a new (and very, very complicated city) and trying to see all of the extraordinary things there are to see in Rome, and teaching for an hour or so every day, I’ve been pretty harried. [You can tell I’ve been too busy, because I didn’t even have a chance to blog about Barcelona’s extraordinary 2-0 victory over Manchester United in the Champions League final, which was held here in Rome the day I arrived, and which I watched (a) in the piazza in front of the Pantheon, at a TV screen set out by one of the restaurants] (first half) and (b) at a back table in the kitchen of a little trattoria where my wife and friends were having dinner])
But it’s an interesting time to be teaching a course (as I am here) on “Intellectual Property and the Internet.” As you’ve probably heard, France has been taking a particularly aggressive stance in regard to the question of Internet “piracy,” both domestically and in the EU parliament; it has passed a harsh law requiring ISP monitoring of Internet use designed to ferret out users of P2P file-sharing systems, including a mandatory cutoff of all Internet service for anyone found (after an administrative, but not a judicial, hearing) to have been sharing files unlawfully on three separate occasions. [Stories here, here, and here about the French law] [Stephen Rudman sent me a report that the French military have been involved in shutting down Bittorrent servers, though I can’t vouch for their accuracy]. The French introduced a similar measure this Spring in the European parliament, where it was voted down – indeed, the parliament passed a measure prohibiting EU governments from terminating a user’s Internet access without a court order, declaring that “Internet access is a fundamental right such as the freedom of expression and the freedom to access information.”
It sets up a nice constitutional conflict between the EU and one of its member States — and this past week, into the mix comes the French Constitutional Court, which struck down all sanctions against individuals in the French law, on the grounds that they presumed guilt, which could only be established by judicial process. Patrick Fitzgerald very helpfully sent along the following report:
In addition, they included a powerfully-worded statement on free speech which suggested that mandatory disconnection might be disproportionate per se, whether or not imposed by a court. Citing the Declaration of the Rights of Man of 1789(!), they argued that free speech was a fundamental right and that its continued evolution meant that it now included, practically, a right to access the internet.
Whilst it is tricky to extract pithy quotes from French Constitutional decisions, this is probably the most interesting:
Consid