French Courts Still Very Confused About The Difference Between A Platform And A User

from the blaming-the-wrong-party dept

Tue, Jun 10th 2008 2:44pm — Mike Masnick

For all the complaints that some have about the various safe harbors found in US law to protect service providers from the actions of their users, it's important to note the sort of ridiculous results that occur without such safe harbors. And, for that, you have to look no further than France, which not only doesn't appear to have similar safe harbor laws in place, but whose courts seem to consistently take the position that service providers absolutely are responsible for the actions of their users. We've seen this in the ongoing rulings against Google, which has finally been appealed out of France to the wider European courts. And, then there are the absolutely ridiculous results, such as that time when a French court declared Yahoo and its CEO at the time war criminals, because a user sold some Nazi memorabilia on Yahoo's auction site.

The latest isn't quite as extreme, but is no less ridiculous. A French court has declared that eBay is a counterfeiter because counterfeit goods were sold on eBay. Note that the court didn't blame the actual seller, but the platform provider eBay. The lawyer for the company suing claims that eBay is much more than a platform because it has tools that help sellers sell better. That seems like a huge stretch, but apparently the court bought it. Making eBay liable for any auction held on the site in France is likely to seriously stifle the use of eBay in the country. It now not only will need to review auctions, but somehow do so without any way of actually knowing if a product is legit or counterfeit. How could eBay possibly know this? It can't -- which means it will probably have to do something like ban a tremendous number of auctions. How that can possibly be a good thing for anyone in France is beyond me.

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Filed Under: counterfeiting, france, liability. platform, safe harbors, user
Companies: ebay

19 Comments

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sonofdot, 10 Jun 2008 @ 2:57pm

LV, for one
It's a good thing for Louis Vuitton and the 2 or 3 other French companies that manufacture anything useful (after all, that's who they're trying to protect), bad for everyone else. Simple solution: stop buying French goods, legitimate or otherwise. Can you live without Hermes, Louis Vuitton and L'Oreal? I know I can.
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Anonymous Coward, 10 Jun 2008 @ 3:03pm

I'll bet there is a home grown version of eBay in France that the government is giving a little help by throttling foreign competition.
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bored guy, 10 Jun 2008 @ 3:12pm

Forget France
I think the solution is simple. eBay should just block all of France, the people of France can take it up with their government if they don't like it. Its not like it would really put eBay back much. On the other hand, simple solutions are never actually simple. I'm sure that there would be international outrage at such an assertive move.
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Vive la Intertubes?, 10 Jun 2008 @ 3:20pm

PermaBan...
Couldn't the rest of the world just get together and permaban France from the internet? Great-Firewall-of-France? Yank their backbone connections?

I'm typically the least anti-french person you will find in the US, but this is just silly...
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Jake, 10 Jun 2008 @ 3:34pm

I can see what the French courts are trying to do here, and I'm broadly in agreement with the sentiment; expecting companies to take reasonable precautions to ensure that their service is not being used for criminal purposes is really not a lot to ask. But I emphasise the word 'reasonable', and expecting a search engine to monitor and filter the entire Internet is not reasonable.
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Mike (profile), 10 Jun 2008 @ 3:43pm

Re:
expecting companies to take reasonable precautions to ensure that their service is not being used for criminal purposes is really not a lot to ask.

And the makers of hammers should be required to police the use of hammers to break windows?

And automobile companies should makes sure that cars aren't used in the commission of a crime?

How about computer makers? Dell shouldn't be letting its users engage in any crime either.

Do you begin to see why this is a problem. Blame criminals for crime. Not the tools they use.
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Terry, 10 Jun 2008 @ 4:03pm

Finding the right analogy
Your analogies are flawed in that they all involve objects that are used by people independently of the vendor.

A better analogy would involve a venue: The owners of a bar should be required to make sure customers aren't selling illegal drugs, fencing stolen goods on the premises or giving alcohol to minors.

To many people (including the french courts, apparently), services like eBay are more like a venue in which activities take place rather than a service that is purchased and consumed or used elsewhere. So without understanding the orders-of-magnitude difference in scale between an internet venue and a physical venue, I can see how people would think that policing said venue is no different than hiring security to watch the patrons of a bar or the spectators at a sports arena. It's a responsibility that goes along with operating said venue. The analogy breaks down because a physical venue is not the same as a virtual one accessible from anywhere in the world, including places where laws differ. A tough problem to solve.
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Tony, 10 Jun 2008 @ 4:09pm

Re: Re:
"Blame criminals for crime. Not the tools they use."

I don't know - that sounds an awful lot like personal responsibility to me, and we all know we can't have that.
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Anonymous Coward, 10 Jun 2008 @ 4:24pm

Obviously eBay didn't even turn up to the hearing. Everyone knows if you put a little bit of pressure on the French, they will surrender.
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IronChef, 10 Jun 2008 @ 5:04pm

Rambling, Mein Freundin
Is Yahoo Auctions still running? I thought they shut down a long time ago. Can I sell my Datsun on Y!Auctions?

Well, all I know is that you need to treat French like you would a beautiful woman. Revision: a very emotional woman. I'm sure French Dignitaries love those who take a trip to Napa Valley while on a business trip. To those seeking presidental nomindation, I highly reccomend this page: http://www.wine-il.com/

Unfortunately, Washington DC isn't near any vineyards so that may be why we've never worked so well with them in the past.

White wines such as Pinot Noir and Riesling, are plentiful in the Southwestern Deutschland. Specifically, Länder der Bundesrepublik Deutschland: Baden-Württemberg, and (und fur mein Deutchlanders:) Bavaria are known for their fantasic wines. (The former Bundescapital being Stuttgart. Maybe you've heard of it.)

So what does this have to do with France, you may ask.

Think about it.
Bundesrepublik.
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Roger Gilbert from USA, 10 Jun 2008 @ 5:40pm

What is a user/platform anyway?
I don't know the technical definitions for user and platform, but every time I've ever known about, I could trace "user" to an actual humanoid bioform, even if it was through an automated process such as a robot or web crawler, or other similar smoke-screen. A platform, to me, is a collection of tools that makes up a complete system for doing the task. The driver would be the user, and the car would be the platform. From France's definition listed in this article, apparently Linux is a user since it has tools for me to use my computer, and the internet as a whole better. Does anyone see the logic here?
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Lawrence D'Oliveiro, 10 Jun 2008 @ 6:57pm

War Criminals
The Nazi memorabilia case was one where a site was contravening the law in Europe, though not in the US. So Yahoo tried to get a declaratory judgement in a US court saying it didn't have to follow European law.

But if a site based in one country doesn't have to obey another country's laws, then how come a US court was able to shut down iCraveTV?

It seems more like the principle is that "US law takes precedence regardless".
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Jason (profile), 10 Jun 2008 @ 8:15pm

Re: Finding the right analogy
"Your analogies are flawed in that they all involve objects that are used by people independently of the vendor.

A better analogy would involve a venue..."
--------------------
No, a better analogy would involve requiring a telephone company to reasonably prevent any crime that might be committed over a telephone.

Perhaps now you can see the problem. You see a networked data stream is just a data stream. The only way to monitor content is to monitor content. An ISP has no more business preventing illegal use than the phone company has in recording every user's phone conversations.

Are there instances where a phone company or internet service provider under the properly obtained orders of a federal judge or magistrate should reasonably assist law enforcement in monitoring a specific user where probable cause has been demonstrated and the agency reasonably suspects that a crime has been committed? That at least has some tenable points.

But what the French government requires is idiocy in action. They want to talk war crimes? They are quickly turning into the Gestapo all by themselves, AND they are deputizing the utility companies by force.
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Cynic, 10 Jun 2008 @ 8:19pm

But by extension doesn't that mean that France should be responsible for any crimes committed in other countries by its citizens? Shouldn't they take reasonable precautions to insure that their citizens are not given the freedom to leave France if they are doing so for criminal purposes, and if they fail in that responsibility shouldn't France be financially responsible for any damage to life or property?

After all, fair is fair, and I'm sure France is very concerned with fairness!
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Anonymous Coward, 10 Jun 2008 @ 8:56pm

A question on my mind that need to be addressed:

Many people aren't worried about their personal data, because once it's "recieved", it's "At Rest", it becomes Data.

However, information to data requires this legal transformation:

Personal Information ---> Transit --> Personal Data

Personal information is the legal definition of whatever is traveling in the fiber across the country, and hasn't reached it destination. Until "received" it's considered "data" because it's "Not at rest".

So should "Personal Information" have the same legal standard and protection given to "Personal Data"?

Things to think about.
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Anonymous Coward, 10 Jun 2008 @ 8:59pm

Re:
I could have transformed "Data" for "Information"

I am not a lawyer. Either way, I think both need equal protection, and no one is focused on it
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Anonymous Coward, 10 Jun 2008 @ 11:28pm

yeah well, the French are wanks
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Anonymous Coward, 10 Jun 2008 @ 11:30pm

Re:
France is where the telephone, automotive, were invented according to their history books, not to mention many cooking techniques.

They are just a little mad that they don't get any respect. Maybe rightfully so.
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Jezsik, 11 Jun 2008 @ 1:12pm

Isn't France itself a platform?
If a Frenchman sells counterfeit goods in France, doesn't that make France a counterfeiter? Never mind who sold it, the platform provider is France. France is much more than a platform because it has tools that help its citizens by protecting them and provide health care. Touché!
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