RE: The Economist and e-Archiving

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

Publishing isn't pre-determined legal or illegal except in very narrow
areas in the US What can be published in certain countries comes and goes
with political regimes. Brazil in the 70's military regimes regularly
pulped before distribution, political opponents material In the US our
traditions and freedoms do not permit that

Can courts in France tell a UK publisher to remove something published.
The ecnomist example suggests they can. Should a publisher in one country
be bound by what is considered legal or illegal in another country? I
think, and Brodsky's comment on Barschall et.al. is a great example, the
world and our heritage, and out ability to learn from the past, whether
scientific or social, will be impoverished if courts in one country can
determine what is to be archived in other countries. If the practice of
suing in a different country because the laws "favor" one perspective or
another becomes standard practice, prior restraint will exist on a massive
scale. The Barschall case should stand as an example to the world
community that we need to do something about this problem in a significant
way.

What Gordon and Breach showed was that if you don't like the answer in US
courts, go to ANY country that had access to what you considered offending
material. It doesn't matter whether B&G was right or wrong, the massive
offensive legal drive in terms of 4 international sets of lawyers and
courts and different laws was clearly designed to discourage the AIP, APS
and Dr. Barschall from publishing and defending something G&B found
offensive and had some grounds, however slim, to pursue in some other
country.

This is insupportable if we are to continue to have any kind of free press
tradition worldwide. Can the French courts determine what is legal to
publish and maintain as part of the published record in US publications?  
The implications of world-legal practice, since the French German and
Swiss courts all acted as if they had jurisdiction in the Barschall case,
is yes. I think that is a recipe for disaster for the press and for
freedom of discussion that is the basis of democracy.

It isn't JUST the law and the legislative process in ONE country, but any
and all countries where the material is available. Should we go back to
parochial distribution-We've had that model you know, and it didn't work
very well. Only what was written IN the Soviet Union or approved by Soviet
censors was permitted in Russia. Are we ready for world wide legal
censorship by any legislative body or any court? Looks like we may already
be there. Perhaps instead of worrying about this life of the author plus
XX years stuff, WIPO et. al. should have been thinking about protecting
the safety in multiple jurisdictions of a vigorous press. That in the end
protects our safety, the tradition of debate and investigation and
ultimately the freedoms we cherish. And archiving that material, its
continued existence in some form is a worldwide concern as well.

Chuck

-----Original Message-----
From: Rick Anderson
To: liblicense-l@lists.yale.edu; John.E.Cox@btinternet.com
Sent: 6/19/03 8:07 PM
Subject: RE: The Economist and e-Archiving

> Who decides what is unlawful to publish?

Legislative bodies and the courts.

> To archive?

Legislative bodies and the courts.

> About your right to speak?

Legislative bodies and the courts.

> To archive?

Legislative bodies and the courts.

Let's be clear about something here: libel and slander are not civil
rights. The law does indeed limit what we can say and publish, and I don't
believe any thoughtful person would have it otherwise.  The question is
whether a slander, once illegally published, thereby acquires the special
status of being part of the "public record" and therefore must remain
available to the public.  Personally, I don't think that needs to be the
case, but I can understand arguments to the contrary.

-------------
Rick Anderson
rickand@unr.edu