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Re: Court Jurisdiction and the Internet

From: ashok <ashok@ada.ernet.in>
Date: Mon, 28 Jul 1997 20:52:20 -0500 (GMT)
To: A.Aitken@unl.ac.uk
Cc: www-talk@w3.org
Message-Id: <Pine.SOL.3.95.970728204256.20411F-100000@ada>


On Wed, 23 Jul 1997, ALASTAIR AITKEN CLMS wrote:

> ashok@ada.ernet.in wrote:
> 
> > On Mon, 14 Jul 1997, Michael R. Sees wrote:
> 
> > > I am a law student studying how a citizen of a state
> > > can subject himself to the jurisdiction of a foreign court though
> > > web-related activites.
> > > 
> > > Where may I find technical information related to the
> > > possibility of limiting access to a web site by geography?
> 
> >              The subject you study is interesting. But Iam afraid if you
> > can find a global solution. As an intellectual property specialist, I can
> > tell you that unless there are convenants signed amongst the countries
> > there cannot be any restriction in the flow of data in the cyberspace. For
> > more and specific information please do contact me.
> 
> Perhaps I do not understand.  Are you (ashok) saying that if one country does
> not have a covenant (?) with another then the one cannot restrict the flow of
> data to that other?  This was not at issue over the US Governments attempts to
> control the dissemination of crypotographic utilities to other countries.  As
> far as I am aware the UK never entered into any 'covenant' with the US that
> would permit them to restrict what software we might obtain from there and yet
> the US has restricted this anyway.  Do we have an action under international
> law?  I doubt it.
> 
> You are talking property rights and countries need no 'covenants', perhaps you
> mean treaties or conventions such as Berne, to protect what is theirs.  I do
> not want to get into the argument over whether the US has the right to restrict
> the dissemination of cryptography routines because that is an internal matter
> for the US and it's citizens.
> 
> Europe recently issued a directive intitiating the first new intellectual
> property right for some years - the right to prevent unfair extraction from a
> database - which has prompted the US to consider the adoption of similar
> measures.  Europe entered into no covenant with anyone to intitiate this right
> yet, as a directive, it is binding on all EC states and actionable in European
> courts against those who infringe the right, wherever they come from.
> 
> There is also the issue of pornography.  States have the right to restrict
> what they consider to be damaging to public morals or injurious to public
> decency (not my terms) whether it enters their jurisdiction via a port or a
> wire.
> 
> There are reasonable similarities to be drawn between real goods and virtual
> goods in terms of what a jurisdiction might restrict or allow.  They need no
> treaties to be enforceable within a country.
> 
> The original question was technical and I believe was answered earlier.
> 
> The legal opinion you gave seems fatally flawed to me.
> 
> Alastair Aitken				a.aitken@unl.ac.uk
> +44 171 753 3202			http://www.unl.ac.uk/alastair/
> 
> The opinions expressed here bear no relation to my employers' or my own but are
> a gift from the green and yellow gargoyle that sits permanently on my shoulder.
> 
> 
> 
Dear Alastair Aitken,

              Thanks for your comments. From the point of International
jurispredence, if one country does not have convenant with another,
information flow cannot be restricted. This is simply based on the legal
principle that one is governed by the laws of the land where the person is
residing. Thus, an act may be treated as offence in one country and may
not be so. Hence to have a global approach, one should have uniform laws.
Take an example. Sometimes ago Malaysia banned the use of internet by its
subjects for some time. Such an law is applicable to Malaysians/foreigners
staying in Malaysia. And there is unlimited info flow from outside
Malaysia.
         Similarly, its an common practice that several software are
pirated by the third world countries and patented technology are developed
through the technique of reverse engineering. In brief, what would have
been a clear case of intelectual property violation in the country of
origen, passes of as perfectly legal in some other countries. To overcome
this, there needs to be a concerted action by the countries as convenants.
        Comming to the central issue - " Can there be restrictions on web
related activities" - Iam afraid such a thing at present is simply not
possible as technology for  proper enforcing mechanism's dont exist.   

       I do encourage criticical comments/suggestions.

                                      ashok,
                                            ashok@ada.ernet.in   
Received on Sunday, 3 August 1997 09:54:20 GMT

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