Remembering my dad Pertti Välimäki in his own words

My dad passed away three weeks ago. After the initial shock and emotional rollercoaster I feel now both thankful and peaceful. I could not have asked for a better dad who lived to see so many things over his almost 72 years of run here. He witnessed my life through all the turbulents years and saw his grandchildren grow up. We all learned so much from him.

Obituarities in Helsingin Sanomat and Asianajoliitto summarize his career accomplishments as an attorney, professor and Supreme Court justice in Finland. Those are the things he was publicly known for.

For me he was still first and foremost a dad with whom I had an open and candid relationship until the end. We talked on weekly basis. There wasn’t a topic we wouldn’t have chatted about. The best ones were lengthy conversations over dinner or a bottle of wine about sports, law, society and politics. We disagreed from time to time and our political views differed but the next morning it was all forgotten.

I picked up from him the love for all kind of sports and outdoor lifestyle. We went together trekking, running and fishing. Just two weeks before his time was up we had a great overnight fishing trip in Kirkkonummi where he caught a Baltic Sea white fish and prepared it for our dinner. This post’s headline picture was taken on that moment.

He influenced my life in numerous ways. I entered and by chance passed the law school entry exam mainly because he happened to be a professor there at that time and the exam books were lying on our shelves. I had to prove him I can get there too. Eventually I went on to do other stuff, build new tech and other businesses. He had an open mind and was curious and supportive in whatever I did in my life checking always “how’s the business?” and “how’s the kids?”. But the most often he still opened with “have you been running lately?”

My dad used to say you learn to write only by writing. (And you learn to run only by running.) Even if he published only legal scolarship and judgments he did write about much more. So here’s his recap (in Finnish) of our road trip across the US back in 2010: Isä ja poika Ameriikan raitilla keväällä 2010. That was kind of a trip of the lifetime we talked about time and again whenever we got back together…

In memoriam — Ville Oksanen

Went through some terrible news today. Ville Oksanen, my long time friend and colleague, passed away. He was my call-to guy for anything possible that mattered over the past 15+ years. No matter what I was calling about I could always know his feedback comes with deep insight and the highest possible integrity.

Ville needs more than a quick obituary. To start with here’s something we got published in Helsingin Sanomat back in March 1999 when we were just 22-year-old nerdy students. I still consider this early piece kinda set the stage to everything that was to come in his life’s work.

We need a Ralph Nader for IP

I visited Rovaniemi over the weekend for another academic seminar. James Love — who started already in the 1970s as Ralph Nader’s aide — gave an energetic keynote on global intellectual property policy. Love knew practically everything about his subject…. thus I was left just wondering why the message does not sink in. Why there is so little if any impact on policy makers. Not from academics calling for balance or user rights, granted. But not even from experienced lobbyists like Love – except for a few hacks, as he called them. He remains a critic, an underdog. Why?

Perhaps the root of the problem is the ignorance of the general public. While the issues are there, they are not taken seriously because nobody knows about them.

Consumer rights were there but became real only after championed by Nader. Unsafe at Any Speed. Same goes for global warming. Al Gore and Inconvenient Truth. Who would take the role of star speaker for consumer interest IP? Love offered Stallman and Lessig but I had reservations for both.

A problem wih the current talks is always that the substance is broken into pieces. A separate hack here or there. You need good examples, but who would nail down the red line?

Hosting liability enters European Court of Justice

The biggest legal case I have ever litigated is currently pending before the Finnish Supreme Court. It is about the administration of a Bittorrent tracker called Finreactor, pretty much like the infamous Piratebay.

Our main argument in the Finreactor-case is based on the liability limitation for “hosting” as defined in Directive 2000/31/EC, article 14. I tried first in the Court of Appeal, and then again in the Supreme Court to get the justices to send the main questions to European Court of Justice for a preliminary ruling. They did not do it. Finnish courts, perhaps still reflecting the silent and somewhat shy Finnish mentality of the past times, are notorious in not sending anything there.

Anyway, now it seems there are at least two trademark-related cases where European Court of Justice will say something about article 14.

The first is Google v. Louis Vuitton (also known as Google AdWords case) where there is already advocate general’s opinion published. The second one is L’Oréal v. Ebay where the questions are published.

More interesting of these two is the first one as it will be obviously decided first, and may set the precedent for future cases. The advocate general seems to think that the AdWords service is indeed a hosting service, but in this case Google has too much interest in the published content itself to be exempted from liability:

145. …Google’s display of ads stems from its relationship with the advertisers. As a consequence, AdWords is no longer a neutral information vehicle: Google has a direct interest in internet users clicking on the ads’ links (as opposed to the natural results presented by the search engine).

The advocate general would have accepted Google’s general search engine from liability, however:

144. …Google’s search engine … are a product of automatic algorithms that apply objective criteria in order to generate sites likely to be of interest to the internet user. The presentation of those sites and the order in which they are ranked depends on their relevance to the keywords entered, and not on Google’s interest in or relationship with any particular site. Admittedly, Google has an interest ““ even a pecuniary interest ““ in displaying the more relevant sites to the internet user; however, it does not have an interest in bringing any specific site to the internet user’s attention.

Some could say the advocate general is imposing a requirement on “neutrality” in order to benefit from liability. There is no such requirement in the directive and actually the opinion explicitly recognizes that in order to benefit from liability the hosting activity does not have to be purely technical:

140 …The fact remains that certain content is hosted by information society services, be it for advertising or for any other activity covered by those services. Information society services will rarely consist in activities which are exclusively technical, and will normally be associated with other activities which provide their financial support.

So how I read the advocate general’s opinion — in accordance with what I have argued to the Finnish courts — is that you cannot actively participate in the publishing process in order to benefit from the liability exemption. Advocate general is probably thinking that Google is “jointly” publishing the AdWords with the users because it actively makes money from the publications (“Google’s display of ads stems from its relationship with the advertisers… Google has a direct interest in internet users clicking on the ads'”). In other words, Google has too close relationship with the publishers and is too much involved in the published content.

The opinion gets however problematic when you take into account the fact that anybody can sign into the AdWords program. Anybody signed can publish any AdWords he or she likes. Google does not monitor or censor the words. And in general, everyone hosting content somewhere must have a contractual relationship with the hosting provider, pay for the use, and be able to use some publishing tools. Thus, the main rule must be that contractual relationship and collaboration between the hosting provider and publisher is possible to a large extent. The hosting provider must just stay in the provider’s role and not become the publisher. It cannot get involved in the published content, it cannot monitor the publication process, and it cannot cash-in from the publications — like advocate general is obviously trying to say. Hopefully European Court of Justice will clarify in its decision at least this part of the case.