Diacritiques

Avec un peu de recul, quelques remarques de plus sur l’affaire Guillermito/Tegam. (Après les parties une et deux, en anglais, ce billet a une version française.)

Primo, c’était un plaisir de rencontrer Veuve Tarquine à Paris Carnet. Elle m’a expliqué que contrairement à ce que j’avais écrit, l’avocat de Tegam n’était pas mauvais, mais qu’il suivait une stratégie légale par nécessité. Compte tenu du fait qu’il n’était même pas acquis que Guillermito ait commis une infraction ou contrefait le logiciel en question, et vu le sérieux et la pertinence de ses analyses, l’avocat ne pouvait que tenter de rabaisser Guillermito et pratiquer l’obscurantisme par rapport aux aspects techniques.

Deuxio, Lunar (à qui j’ai pu parler aussi) a mis le doigt sur le sexisme de l’institution judiciaire, un point qui m’a effleurée depuis que j’ai commencé à lire Eolas. Le procureur dans la rôle du Père-avec-un-grand-P, l’absence totale de progrès sur la féminisation des noms de fonction et métier dans ce domaine, sont en conflit avec la réalité pratique, les nombreuses avocates et juges et même procureures qu’on voit dans le Palais de Justice. D’accord, on ne va pas encore pouvoir se passer de l’apellation « Maître » car la forme féminine remplit déjà deux fonctions bien différentes. Sauf à abandonner un peu de formalité et de rituel, ce que ne serait pas forcément une mauvaise idée, mais ce n’est pas moi qui décide.

Ensuite, il y a des surprises dans les fils de discussion sur les blogues de nos chers avocats-blogueurs. Bon, des surprises pour ceux qui n’ont pas l’habitude des Pieds Nickelés de la guéguerre informationnelle. A lire chez Veuve Tarquine et Eolas. Je me demande à qui cela profite de vilipender les mobiles de Guillermito et faire la pub pour Tegam. Ce ne serait pas la même stratégie que celle mentionnée plus haut ?

En ce qui concerne l’aimable commentateur de chez Veuve Tarquine qui exige la condamnation de Guillermito, remarquons d’abord que cela est précisément un des enjeux de la décision du tribunal, à savoir trancher si la loi a été transgressée ou non. C’est la première fois qu’il y a un procès de ce genre en France. Et même s’il se trouve que les juges considèrent que c’est le cas, dans un État de Droit de type démocratique on peut ne pas être d’accord avec la situation légale actuelle. La loi, ça se change, ça se réforme. On a tout un parlement pour ça. Et sa profession d’avocate n’empèche pas que Veuve Tarquine ait des opinions et les exprime librement.

Ce dédain pour le droit à la libre expression, bien moins présent pendant le procès que l’insistance sur celui à la libre concurrence, est l’une des raisons pour laquelle les propos du procureur ont trouvé un tel écho. Il a bien dit que quand on trouve des défaut dans un logiciel, « il n’y a pas d’autres » possibilités que soit créer un produit concurrence et faire confiance à « la libre concurrence, le meilleur mécanisme d’améliorer les produits », soit d’aller déposer plainte à la police de la consommation, soit, à la limite et seulement si on est journaliste, écrire un article dans les strictes limites du loi sur la presse. Le consommateur moyen n’a pas à comprendre, ni à apprendre comment fonctionne l’informatique. Il a à se soumettre.

Enfin, j’ai trouvé, encore chez Veuve Tarquine, une image de la Justice qui trône au-dessus des juges dans la salle où a eu lieu le procès. Je le reproduis avec permission. Son regard lointain, en l’espèce, était fixé sur Monsieur le Procureur de la République.

This is the second part of an article on Guillermito’s trial for criminal copyright infringement. The first part is here.

It is not my goal to summarise the entire case: I am not a lawyer, copyright law is different in every country (and my knowledge of it little more than hazy), and I also don’t have the time to sum up all the technical and legal details as far as I understand them. (I will be happy to answer any questions to the best of my ability, though.)

The following are notes and observations from a non-legal point-of-view: more about analysing the different players’ approach to the issue than about editorialising on French copyright law or the pitfalls of intellectual property. I am translating loosely (but as accurately as possible), paraphrasing minor bits I haven’t noted verbatim.

Guillermito: The impression he left was that of a researcher (which is, after all, his profession), of someone who is interested in finding out and understanding how things work; and who won’t let a company get away with lies and exaggerations about the quality of their products if he is capable of proving otherwise. Which is all he did, in all openness.

The judges: This sort of case is judged by a college of three judges, one of whom has the task of summarising the case. Some of the observers were a bit worried that the judges might be hampered by a (presumed) lack of understanding of computer matters (they were all over twice the age of the average member of the geek crowd, after all). But, pleasant surprise, the judge in charge of the case actually knew the file inside-out, had even understood the weaknesses of the expert’s report and asked relevant questions about technical details#[1]. Of the other two, one was looking at Guillermito as if he was her favourite grandson (I think it was to mask her fatigue, and I don’t blame her; I rather admire the court’s endurance), the other one was looking a bit frazzled sometimes, but attentive and interested.

The lawyer of the software company that filed the complaint: I think he was bad (yet, I heard the software company had hired an expensive and reputable firm). His technical explanations were, unlike the descriptions provided by Guillermito and his lawyer, incomprehensible. And the judges didn’t appreciate it, if their frowns are any indication. The public had a hard time to keep quiet (but managed) when he talked about all the infringing explanations on how to understand the workings of the anti-virus program, which were written down in “the program README.TXT, which is a text file” on G’s (closed down) server. Other than that, he was trying to be as insulting as possible, stopping short of calling G a terrorist (which his clients hadn’t shied away from in an advert), but by used and overused the sobriquet “byte apprentice” (apprenti-octet). And he told a woeful tale of the poor anti-virus program that G had endeavoured to break down, smash to pieces, batter, abuse and attack (I am not exaggerating), which is forbidden”. None of this seemed to make a good impression either.

The prosecutor:#[2] A formidable character, thundering down on Guillermito from the heights of his podium. He seemed to accept the results of G’s analysis — basically, that the program is a dud (un daube — suppressed laughter in the audience) — and even alluded to “companies that take 20 years to provide a stable operating system”.

What was particularly interesting, though, was the limpid and ideologically somewhat extreme approach he took. The first step was to compare Guillermito repeatedly to Robin Hood, thus covertly introducing the widespread but dangerous equivalence “copyright infringement = theft”. Robin Hood may be a good criminal, but every legal system that is based on the Rule of Law can’t but convict him. Then came his main point. In a society like ours, he argued, where “there is no room for legitimate resistance” (since it is a good one, regulated by Law), Guillermito, not being a computer scientist or programmer, gets to use the program in question in the capacity of a consumer only. If he is unfortunate enough to find out that the program doesn’t do what the company that distributes it claims, he has a choice: either to file a complaint with the police, or to write and market his own, superior product, thus putting his trust in the free market to weed out the duds. The law, he clarified, is there to protect consumers (and employees etc., ie the weak); other than in the cases written down in its books, “free competition is the best mechanism to improve products”. Exceptions may be made if public interest comes into it in other ways (like in the regulated drug market), but since software “has rarely killed anyone” and is generally considered harmless, property rights take precedence over intellectual curiosity. “You have to accept the restrictions.”

At this point I was itching for someone to bring up free speech. The prosecutor touched on “the right to criticise”, but only in the negative: critique is legit “within the limits laid down in Media Law, and not as a hacker (pirate)”. On the contrary, he pursued, “our society is at risk if it isn’t credible when it comes to intellectual property, in particular in the international context”. What follows logically is that the pursuit of knowledge and understanding, unless it serves immediate profit motives, is of no worth at all compared to the overwhelming importance of what derives from the free market and the protection of property rights. Empowering consumers (well, or simply people) and thereby opening an alternative to hiding behind the Law’s tutelage is not something the French Republic seems to consider as valuable. The enlightenment is a bygone era, its goals not worthy of further pursuit and made obsolete by newer and bigger challenges. This, I felt, was quite a big thing to swallow; it also captures what makes me feel out of phase with some of society’s norms. Not that I don’t care about whether I abide by the law or not; conflicts of principles are, however, possible.

Guillermito’s lawyer: Suffice it to say that he was excellent. Impressively, he called the prosecutor’s “Robin Hood” bluff with an elegant reference to how the prosecutor’s discourse actually created a Robin Hood out of a simple researcher interested in computer.

The stakes: I am not qualified to do them justice, so I will just briefly note that this is the first software copyright infringement case in France that isn’t about someone making and/or selling multiple copies of a proprietary program. On the basis of this alone, the case will set a precedent. Moreover, French law has recently incorporated some EU intellectual property directives, which will be put to test for the first time — in particular the part about what we are allowed to do with or to a program for purposes of testing, scientific investigation or review, even without the consent of the copyright holder. The legal technicalities will have to deal with the thorny point of whether or not you need a license in these cases (which is unfortunately a rather blurry issue in G’s case).

The sentence of 4 months of probation plus a fine of 6,000 € was put forward by the prosecution. The defence wants a non-guilty pronouncement. Oh, and the software company wants 900,000 € in damages, a sum that even the prosecutor seems to consider rather outrageous.

The saga continues with part three.

[1]: One exchange with Guillermito that made the geek crowd smile (paraphrasing): Judge — You’re talking about “attack programs” … api99 for example. What is this? Do you know about it? G — Oh yes, that’s a virus. J (slightly taken aback) — A virus?! G — Well, if you’re testing if an anti-virus program that claims to stop 100% of all viruses actually does what it says, you use viruses. You can download them on the internet. An anti-virus program is supposed to stop viruses by definition. J — Ah, yes, by definition. [2]: One point should be noted here. The French criminal justice system being an inquisitorial (and not adversarial) one, the role of the prosecution (in particular) is much different from what it is in the US or the UK (and many other English-speaking countries). The prosecution’s task isn’t to prove the guilt of the defendant. As far as I can see, their job is twofold: a) representing the Republic (or society) and thus referring to the rule of law and the public interest (they also propose the sentence and are the only ones to get to do this); b) playing the role of the bad guy; in this capacity they get to scold and lecture the defendant, and to gesticulate dramatically.

The new year started with a bang#[1]: Steph is visiting Paris. The more common tourist attractions aren’t good enough for this Anglo-Swiss star of the francophone blogosphere, so after lunch and some pleasant conversation, we went to a criminal trial. Not any old trial, of course, but Guillermito’s.

French blogs are talking about the case all over the Internet, but there is little good information in English.#[2] In short, Guillermito is a French molecular biologist who works on plant immunity at Harvard. As a hobby, he is interested in computer security. For his critique (fr) of the anti-virus program Viguard, he has been charged with what it is misleadingly translated as “counterfeiting” works protected by intellectual property law: a better translation is, I think, criminal copyright infringement.

It was the first time I’ve been to a trial, and of course Guillermito’s case (being the most complex of that afternoon’s lot) came last. Which is why I got to see, hear and learn a ton of interesting bits:

• The public toilets at the Paris Palais de Justice are in an acceptable but not great state of cleanliness even in the mid-afternoon. To get there, you need to find the courtyard with the Saint Chapelle in the middle. The facilities you need are right below. (And if you’re confused now, this map of the premises will sort it all out; there are bad pop-up photos if you mouse over it.)
• All those lawyerly professions are much more interesting than I used to think. You get to externalise your aggressive tendencies, accuse, even insult (within limits), do a spot of discourse analysis if you feel like it, be gentle … in short, play a role, but without anyone expecting any artistic value from your performance.
• The prosecutor was particularly impressive: a massive man with a booming voice, who kept bunching up his robes, gesticulating, lecturing; he would have made a formidable headmaster, too (I had some flashbacks to my teaching experiences).
• A beautiful painting of a wan, reclining Justitia in a flowing grey-blue dress, a heavy tome on her knees, her scales dangling from a tired hand, the other one being in constant danger of receiving a nasty cut from her sword, was looking resignedly down on the prosecutor from behind the judges. I understood most of the symbolism on the ceiling, except the hand mirror with a snake winding around its handle, all on a background of oak leaves.
• After reading Eolas’s excellent introduction (fr), I expected the proceedings to resemble a church service. And they do: the hard benches, the handsome wood panelling, paintings, and beautiful ceiling, and above all the routinised solemnity taken as a matter of course. Still, all the getting up and sitting down business is much less dynamic than what a congregation manages to do, and in church, the public isn’t carefully observed by a police officer, who doesn’t hesitate to scold anyone who does something they shouldn’t.
• Oh, yes, that police officer. I managed to attract his attention and was reprimanded for reading Bourdieu’s Langage et pouvoir symbolique on my knees. It had been a desperate attempt to stay awake during a particularly tedious case about the relationships between employers, employees, self-employed contractors and the office that collects social contributions (unemployment, medical and other insurance fees) from the first for the second but not for the third. Lawyers, on the other hand, get to sit on benches that are hidden from view by high backs and armrests, so they can do all kinds of stuff without anyone objecting.
• Be prepared (fr) and ask at the information desk if in doubt. We (Steph, Michel and I) were and did, but a gaggle of geeks (a giggle?) hadn’t realized that “our” court had temporarily swapped court rooms with another one, which is currently hearing a case that requires a bigger dock that can hold 6 defendants at once. So they found themselves looking at a handful of suspected islamist terrorists instead of one poor hacker. (The terrorism case, though quite well publicised in the French press, appears to be of little interest to the general public. I was happy to confirm to one of the lost geeks that the logo “ABC” that one of said geeks saw on a TV camera does, indeed, belong to an American network. More on that other case in the NYT and in the Age, here and here.)
• The sentence you risk if you sell a car without telling the buyer that a) it was repaired from the bottom up after a big accident, and b) during the repair, the broken km counter was exchanged for one that showed 17,000 km less than the car had actually run, even if the buyer manages to re-sell the car for the same price they paid you, is not substantially lower than if you are a butcher whose premises are in such a bad state that you might well poison your entire clientèle (I’ll pass on the nauseating details involving deadly bacteria and dozens of kg of rotting meat ready to go into sausages).
• Courtroom N° 10 sits about 40 members of the public. I’d say there were about 50 Guillermito-supporters present, mostly bloggers and computer security specialists. Everyone was on their best behaviour (well, we tried). I hope Mr Peer’s feet have recovered. I was also happy to see neuro` again and was honoured to meet Veuve Tarquine, who is particularly charming, a lawyer and a blogger#[3]. She stopped long enough in-between zipping at lightning speed from one end of the Palais to the other to give us poor ignorants brief historical overviews and valuable pointers. And Guillermito himself, of course, who is adorable and articulate, dispensed buckets of patience to make the technical stuff as accessible to the court as possible, and left an excellent impression, I think.

Then, finally, Guillermito was called. My notes and impressions of his trial are covered in the second part.

[1]: Well, actually it doesn’t. I’m still slow and tired, and the number of drafts I never seem to be able to finish or posts I want to write but can’t seem to manage is growing. Anyway. A very happy, healthy, fruitful and satisfying New Year to all friends and readers of ˌser.ənˈdɪp.ɪ.ti! [2]: Guillermito has written a short summary in English. There is also a Slashdot thread about the case, but I find most of it more misleading than helpful. [3]: Each segment of the blogosphere has its strengths and weak points. In France, there is an astonishing number of fabulous law blogs.