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Germany threatens to jail Carl Malamud for making the law available for free

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Re: Germany threatens to jail Carl Malamud for making the law available for free

#31

Post by nhaehnle »

Tomte wrote: post #8
Amadou wrote: post #3

Earlier quoted context omitted.

And no, it is not incorporated into law, either. Despite what some people usually claim. So you are disputing the part of the article that says: "Every country in the EU is required to implement and publish these standards." I've followed Malamud's work in the USA and there he has been 100% accurate in his claims that the standards he publishes are incorporated into law by reference. You seem to be saying that he's w…

Look, I know, EU "law" is difficult. I happen to have a little bit of knowledge about that, because I work on safety-related systems in industrial automation, where the same legal mechanisms apply (although "my" directive is 2006/42/EG, not Directive 2001/95/EC). Legally it works like this: 1. The EU issues a directive. Directives are not directly binding (some gray areas have developed over the years) and must be im…

Thank you for the explanation.

Let me offer a tl;dr: Standards bodies found a bureaucratic loophole allowing them to make their standards into de facto-law while avoiding that those standards then become part of the public domain as they ought to be.

Sounds like a classic case where the law has not caught up with morality.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#32

Post by nhaehnle »

Tomte wrote: post #16
Amadou wrote: post #10

Earlier quoted context omitted.

In Germany we have implemented this directive Sounds like you are agreeing with Malamud. Regardless of whether or not various certification authorities trust the word of the companies that implement products to match the directive, the directive is the law in Germany. Right?

Emphatically no. First, the Directive itself is not the issue here, the harmonized standards are. Please don't mix it up. Nobody would sue for copying the text of the Directive. And second, it's really, really important to understand that only the national law must be followed and that it is not identical to the Directive. I know it sounds like nitpicking, but this difference is important. Not in the day-to-day devel…

That's the kind of talk that will lead to lawyers being the first against the wall when the revolution comes, right after the Marketing Department of the Sirius Cybernetics Corporation.

The morality of the situation is very clear: Those standards are de facto law because they are treated by common practices as if they were the law. Hence they need to be in the public domain.

This is not an arbitrary sentiment either. You can draw a parallel to how trademarks can lose their protection by becoming part of regular language.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#33

Post by varjag »

chalst wrote: post #29
belorn wrote: post #28

Earlier quoted context omitted.

So let me see if I understand this right. The EU has created several safety laws that each countries must follow. The laws then in turn reference proprietary written standards by DIN, which people need to buy in order to actually follow and understand the law. Is that correct?

I don't know about ANSI, but the IEEE is a US non-profit standards body, and you need to buy its standards to claim compliance with them. This, and fees for testing products, is generally how non-governmental standards institutes fund themselves.

You also have to pay for ANSI/NIST standard texts, ITU, ISO standards, and for EU industrial standard texts. It's nothing out of ordinary.

EDIT: I see ITU has made their standards free of charge since 2007.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#34

Post by thirdsun »

bowlofpetunias wrote: post #12

Worst linkbait title ever? In fact, the entire post ridiculously manipulative. Doctorow is not doing anybody any favors by going into full tin-foil-hat-speak to disguise the facts. "Germany" is not "threatening" anybody. Malamud is getting sued by what is only referred to as the mysterious "the code people". (Which is actually DIN, an internationally well known standardisation institution, not need to refer to them a…

It might be relevant to mention that Hamburg's district court is the court of choice for copyright holders - this court has quite a long history of ruling in favor of media corporations when it comes to issues of piracy, copyright disputes and similar subjects.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#35

Post by rowyourboat »

nhaehnle wrote: post #30
rowyourboat wrote: post #11

Earlier quoted context omitted.

That does not make it legal to publish a work without the copyright holder's consent.

Perhaps, but it does make it moral to publish the work. And law ought to follow morality rather than the other way around.

If your point is that these standards are in fact de-facto laws and should be treated accordingly (free access and all), then make that point directly. It is unclear to me how copyright violation helps here, apart from publicity.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#36

Post by flexie »

DannyBee wrote: post #14
flexie wrote: post #13

Earlier quoted context omitted.

You are quoting an American ruling. This is a European case.

Please cite any european decision to the contrary to support your decision ... Germany's official copyright law (which i only have english translations of, so apologies) says: "(3) The copyright on private collections of standards is not affected by section 1 and 2 if they are referred to in laws, regulations, decrees or official announcements without reproduction of their wording. In this case, the originator is obl…

I made an assertion and now it's my "job to support it"?! How is that for an assertion. Stating that everybody is not entitled to get a free copy of copyrighted material is hardly an assertion in the first place and I think you maybe have a very strong sense of entitlement if you think you should tell me what my job is ;-)

I am not a German lawyer but a Danish one. The Danish copyright law doesn't have such provision but in Denmark charging manufacturers 100 euro for a standard would not upset any judge. 100 Euro is the price of a meal at an average restaurant, 20 minutes of lawyer time or a text book on insolvency law (if you can't pay for it). Things are cheaper in Germany so maybe 100 Euro is too much. I don't know.

Lawmakers often prefer that technical standards are made by private and semi private bodies because politicians and government clerks have absolutely no clue about technicalities. manufacturers prefer it for the same reason.

Even if these technical bodies sell 1,000 "baby pacifier standards" all over Germany, and I doubt they sell that many, the proceeds barely cover the direct cost of creating the standards, including hiring lawyers, engineers and other experts, negotiating with different interest groups, printing etc.

If the alternative would be to let the taxpayers bear the full price I think it's fine to have manufacturers pay a few hundred euros yearly to get the standards they need.

In most of Europe compliance with product safety regulations is not ensured through the courts by lawyers hired by those who have suffered damage. Yes, these cases exist but in much smaller numbers than in the US. The real enforcement of the rules is carried out by public agencies that control that the rules are followed, issue fines and bans, close factories etc. So there are very few readers of most of these standards.

As for court cases, I don't know of any on this subject.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#37

Post by XODsQToxwi1eOy8 »

rowyourboat wrote: post #23
XODsQToxwi1eOy8 wrote: post #20

Earlier quoted context omitted.

Let me suggest a new law: You have to either factor this product of two 8192 bit primes or implement standard X. It's not incorporation, or is it?

I agree the situation is not ideal, and I applaud any effort to try to show that the way the law and the standard are intertwined make for a de facto incorporation of the standard into law (which would mean the standard would have to be accessible for free). It is not clear from the article that that's going on, and it's also not made clear why starting with a copyright violation is a good way to bring about this cha…

Well, how do you bring about change in a democratic republic without publicity? Bribery?

Re: Germany threatens to jail Carl Malamud for making the law available for free

#39

Post by rowyourboat »

nhaehnle wrote: post #32
Tomte wrote: post #16

Earlier quoted context omitted.

Emphatically no. First, the Directive itself is not the issue here, the harmonized standards are. Please don't mix it up. Nobody would sue for copying the text of the Directive. And second, it's really, really important to understand that only the national law must be followed and that it is not identical to the Directive. I know it sounds like nitpicking, but this difference is important. Not in the day-to-day devel…

That's the kind of talk that will lead to lawyers being the first against the wall when the revolution comes, right after the Marketing Department of the Sirius Cybernetics Corporation. The morality of the situation is very clear: Those standards are de facto law because they are treated by common practices as if they were the law. Hence they need to be in the public domain. This is not an arbitrary sentiment either.…

The morality of the situation is very clear: Those standards are de facto law because they are treated by common practices as if they were the law. Hence they need to be in the public domain.

I agree that if those standards are indeed de facto law, they should be treated like law. But that is not the case the article makes. The articles makes a case around being surprised about getting sued for publishing copyrighted material without the owner's consent. Which is not suprising at all.

Re: Germany threatens to jail Carl Malamud for making the law available for free

#40

Post by XODsQToxwi1eOy8 »

ralpht54 wrote: post #22
XODsQToxwi1eOy8 wrote: post #20

Earlier quoted context omitted.

Let me suggest a new law: You have to either factor this product of two 8192 bit primes or implement standard X. It's not incorporation, or is it?

Laws tend to be general. For example a lay might say something like: Communication between two parties needs to be secure. Now, what is secure, how do you define it? Like tomte said you have the burden of proof. One way is to say you followed a standard because standards are formulated by "experts" and thus your communication is clear. An alternative is to develop your own secure algorithm - you might have to proof t…

No, actually, you don't have the burden of proof, that's the point. If that was the case, following a US standard, say, should probably be as good a defence as following an EU standard. Instead, one particular proprietary standard is exempted from you having to prove anything, except for the fact that you do follow the standard. That special treatment is what is being criticized here.

Also, laws don't cease to be laws because they are not consumer oriented. Your argument applied analogously essentially would mean that it would be perfectly fine for all laws concerning the taxation of corporations to be secret because those are highly technical and not consumer oriented. These dumps are not meant for consumers, but for people who are required to follow the rules set by those standards.

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