What is truth? As elusive as this question may be (see 8/22/06 fillip), our Information Age depends on its ability to formulate an answer. More accurately, we are daily asked: "is this true?"
In the case of Splenda, Lynnley Browning reports (*) how a jury will have to decide whether it is "made from sugar" as claimed or not. At stake is no less than the "leadership of [... the] $1.5 billion artificial sweetener market". On the one hand, Splenda is indeed made not "of" but "from", sugar as established by the scientific truth conveyed by chemistry and grammar. On the other hand consumer behavior reveals the popular truth. According to it, "made from sugar" means that Spenda is not artificial and therefore is better than its competition, a clear deception. In our framework, the issue is nothing but a conflict between two irreducible sources of truth (see 12/05/06 fillip). No wonder jury selection has become the most important phase of a trial.
Being free from jury duty, we can take this case in another light. At heart, it is a jurisdiction conflict between the supplier, ruled by knowledge, and the consumer, governed by opinions. In supplier country, caveat emptor holds sway and if consumers allow themselves to be mislead by clever marketing, the fault is theirs. In consumer land, plain english warnings to consumers about any possible mishap are mandatory and if useful products are shunned because of such warnings, the suppliers be lost. "Truth this side of the Pyrenees, error beyond", Pascal (1) once said, to emphasize we cannot reach absolute truth by pure human means.
The Pyrenees separate France from Spain, the two major western powers of Pascal's days. Today information may be detached as never before from material impediments, it is still very much vexed by such international borders. No theory of information (see 3/13/07 fillip) can be complete without taking this issue into account. Good information laws (see 4/03/07 fillip) strive to spur the creation and dissemination of new information while balancing the rights of suppliers and consumers. Yet were one party this side of the border and the other beyond it, it would be a rare court of law which would treat the merit of a case while ignoring the call of national interests.
Legal hypocrisy is the first consequence of "Information with Borders". For instance Edmund L. Andrews reports about possible moves by the US on China to counter rampant copyright piracy (**). While we advocate the rights of information owners (see 6/13/06 fillip), we are under no illusion as for the accidental origin of the present high-minded US position. Were Hollywood a suburb of Shanghai, the US would defend piracy in the name of freedom of access to cultural goods. Forget the hypothetical and read Hal R. Varian's timely reminder (***) on US wanton piracy of UK intellectual property when the US was but a giant developing country and the UK at the peak of the world pecking order.
Commercial counter hypocrisy follows from such legal hypocrisy. Tobias Buck and Emiko Terazono give us a fascinating account of the current dispute between the EU and Apple iTunes (****). The EU takes iTunes' pricing to task for charging more for the same song in some countries than in others. True the practice of squeezing European consumers for a few cents more seems at odds with a common market, both starting point and major goal of the European project. But isn't the EU competition commissioner a bit too offhanded in dismissing as irrelevant Apple's considerations on European copyright and tax laws? They are a superannuated patchwork, not to mention the burden of accounting for residual national currencies.
Confining music virtual distribution within physical borders is an unfair subsidy to ferries and low cost airlines and the best way to turn pesky pirates into gallant blockade-runners. There is worse. With patent applications available online, how can useful ideas be efficiently confined within borders? What to think of the current European system of claiming and litigating patents? Tobias Buck reports it is a costly mess (*****). Given the sorry record at fixing the status of so-called software patents, I wish good luck to the internal market commissioner in fixing the litigation side. The problem is that, within the European space at least, nation has become an intellectual concept in conflict with most other aspects of the information sphere.
Lest we forget citizens are suppliers of information as well as consumers (see 5/23/06 fillip), we must also examine the behavior of the governments as consumers and as recommenders of information. The record is abysmal and provides succor to the worst corporate exactions. As information consumers, western governments appropriate personal confidential data from aliens in the name of security as routinely as from their own citizens (see 7/04/06 fillip). As information recommenders, non western governments often aspire to be sole arbitors of what their citizens should read, watch and listen to (see 9/05/06 fillip). That universal surveillance and censorship facilitate the drafting of good Information Laws may be a small exaggeration.
Is there a solution? World bodies such as the World Trade Organization and the World Intellectual Property Organization can help. But can they deliver faster and more than Europe itself has been able to achieve? According to Alena Kozakova (****) "the issue [is at the] interface between competition law and intellectual property law". She might as well have spoken for the whole body of Information Law. Within western democracies, we have seen how competition fosters pronaocracy (see 12/19/06 fillip), the governement of the people by the lobbies. On the world stage, the nations turn themselves into lobbyists. We can only expose the truth and wait till time erodes national differences in the creation and enjoyment of information wealth.
May borders be no longer an obstacle to our Information Age, may the status of consumers as information suppliers be recognized, may good information laws be enacted throughout the world accordingly.
May we be one day able to boldly proclaim after Louis the Great and with better luck (2), "the Pyrenees are no longer".
- (*) ........... See You in Court Sweetie, by Lynnley Browning (New-York Times) - April 6, 2007
- (**) ........ Piracy Move On China Seen as Near, by Edmund L. Andrews (New-York Times) - April 7, 2007
- (***) ...... Why That Hoodie Your Son Wears Isn't Trademarked, by Hal R. Varian (New-York Times) - April 5, 2007
- (****) .... Apple and allies pass song buck, by Tobias Buck and Emiko Terazono (Financial Times) - April 3, 2007
- (*****) .. Brussels unveils proposals to streamline patent regime, by Tobias Buck (Financial Times) - April 3, 2007
- (1) see Blaise Pascal in the Wikipedia
- (2) Louis XIV of France is said to have made this declaration as he let his grand-son accept the Spanish crown bestowed by the will of Charles II of Spain.
This decision was the cause of a major European war whose conclusion ensured that the Pyrenees would be left standing.