European Court of Justice goes political. In the Laserdisken-decision the justices argue that the protection of intellectual property rights, when it doesn’t make any sense, is still justified because there is “pressing social need” to do so. European DVD importers can no longer keep their shops open because of a misguided copyright directive. Meanwhile, overseas online retailers clap their hands: they have now monopoly over European consumers.
Just read this excerpt to get into the minds of European justices:
“– Breach of freedom of expression
64 Secondly, regarding the freedom to receive information, even if the exhaustion rule laid down in Article 4(2) of Directive 2001/29 may be capable of restricting that freedom, it nevertheless follows from Article 10(2) of the ECHR that the freedoms guaranteed by Article 10(1) may be subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under that provision and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C‑71/02 Karner  ECR I‑3025, paragraph 50).
65 In the present case, the alleged restriction on the freedom to receive information is justified in the light of the need to protect intellectual property rights, including copyright, which form part of the right to property.
66 It follows that the argument that there has been a breach of freedom of expression must be rejected.”
I think there are two ways to start fixing this sort of decisions: (1) European courts should start accepting amicus briefs, and (2) European judges should board the next flight to the US, go learn some law & economics, and stop that theological reading of bureaucratic nonsense.
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A possible solution to the legal question behind the case is that the exhaustion doctrine will be limited to EU citizens and companies. This would be in line with the copyright registration system in the US: if you register your copyright in the US, you get extra benefits. Also: if you open your company here in Europe, you would get extra benefits. Right now the benefit goes overseas while we continue to bear the collateral damages.