[Ecommerce] Jack Valenti: MPAA/MPA wants mass-market license terms to be strickly
enforced in Hague Convention on Jurisdiction
Jeff Williams
jwkckid1@ix.netcom.com
Mon Jul 14 10:26:00 2003
James and all,
Thank you for forwarding this. As far as INEGroup members
are concerned, Jack can go jump in the proverbial lake...
Our members are also considering a boycott of MPAA theaters,
services, and or other products in the near term, and I would imagine
that will be decided around or near election time. We presently
estimate that will cost MPAA around $8m/month...
James Love wrote:
> -------- Original Message --------
> Subject: Jack Valenti: MPAA/MPA wants mass-market license terms to be
> strickly enforced in Hague Convention on Jurisdiction
> Date: Sat, 12 Jul 2003 11:30:54 -0400
> From: James Love <james.love@cptech.org>
> To: random-bits@lists.essential.org
>
> http://www.cptech.org/ecom/jurisdiction/JV%20Kovar%20letter.pdf
>
> * "First, we strongly disagree with the suggestions of some that seek
> to carve out from the reach of the Convention certain classes of
> business-to business (B2B) transactions, whether based on the character
> of the contracting entity (e.g., libraries or educational institutions),
> the amount of the transaction, the nature of the negotiations (e.g.,
> so-called "non-negotiated contracts") or the substance of the underlying
> transaction (e.g., mass-market licenses)."
>
> Jack Valenti
> Chairman and Chief Executive Officer
> Motion Picture Association
> 1600 Eye Street
> Washington, DC 20006
> TELEPHONE: 202/293-1966
> TELECOP1ER: 202/452-9823
> Internet: jvalenti@mpaa.org
>
> June 26, 2003
>
> Mr. Jeffrey Kovar
> Assistant Legal Advisor for Private International Law
> United States Department of State
> 2430 E Street, NW
> Suite 203, South Building
> Washington, D.C. 20037-2851
>
> Dear Mr. Kovar,
>
> I write on behalf of the Motion Picture Association of America (MPAA)
> and its international counterpart, the Motion Picture Association (MPA).
> We serve as the voice and advocate of the American motion picture, home
> video and television industries, domestically through the MPAA and
> internationally through the MPA. The members include: The Walt Disney
> Company; Sony Pictures Entertainment Inc.; Metro-Goldwyn-Mayer Inc.;
> Paramount Pictures Corporation; Twentieth Century Fox Film Corp.;
> Universal City Studios LLLP; and Warner Bros.
>
> We very much appreciate all your efforts on this matter over the last
> decade, and especially your efforts to inform and be informed by
> interested non-governmental parties. As companies that do business in
> every corner of the globe, we have a profound and abiding interest in
> promoting certainty in contracts. A global convention that assures
> businesses that the choice of court provisions they contract for will be
> honored and enforced in every country, absent extraordinary
> circumstances, would certainly promote the growth of commerce and trade.
> We believe that the Preliminary Result of the Work of the Informal
> Working Group on the Judgments Project (Working Group Draft) is a solid
> start toward that laudable goal, and a useful focus for the Hague
> Conference. We support the U.S. Government's efforts to continue
> discussions with other nations on this draft, and improve the final product.
>
> We understand that, at the moment, you are not seeking detailed
> comments, but instead more general views on the Working Group Draft
> draft. Reserving such detailed comments for a more appropriate time, we
> offer the following broad observations.
>
> First, we strongly disagree with the suggestions of some that seek to
> carve out from the reach of the Convention certain classes of
> business-to business (B2B) transactions, whether based on the character
> of the contracting entity (e.g., libraries or educational institutions),
> the amount of the transaction, the nature of the negotiations (e.g.,
> so-called "non-negotiated contracts") or the substance of the underlying
> transaction (e.g., mass-market licenses). Any attempt to exempt whole
> classes of parties or transactions from a convention designed to honor
> the choice of court agreements to which the parties had agreed could
> only promote chaos, not certainty. Moreover, it would force courts
> around the world to engage in complex fact finding even to reach the
> preliminary question of whether a particular party or transaction is
> encompassed within the scope of the treaty, For example, the court would
> need a full-fledged evidentiary hearing to determine whether a
> particular non-profit organization constituted a "library" or whether
> the choice of court provision was the product of an adequate negotiation
> between the parties.
>
> Going down this road would be an exercise in futility, for no useful
> Convention could ever emerge from it. Rather than straining to serve
> groups that hope to maximize their future ability to avoid their
> contractual obligations, the Government should work to preserve the
> broad reach of the Working Group Draft, which encompasses the vast bulk
> of B2B choice-of-court provisions.
>
> For the same reasons, we would strongly oppose any move to provide
> special status to Internet Service Providers (ISPs), a proposal also
> raised at the recent meeting. We have not heard sufficient justification
> to warrant treating ISPs any differently under the Convention than
> banks, widget makers or movie studios when they enter into business
> agreements. Indeed, acceding to pleas for special treatment based on
> ill-defined concerns can only lead to other industries around the world
> asking for their own special provisions, defeating the sound objective
> of providing all organizations with the same clear and reliable rules on
> choice of court provisions.
>
> We do share the concern, voiced by others at the recent meeting, that
> the "escape hatches" in the document may be too broad or engender a
> nonuniform approach to the same issue, as they allow a court to
> frustrate the parties' agreement as to choice of court where it finds
> that the agreement is "null and void (Articles 4,5, and 7(a)) or where
> "recognition or enforcement would be manifestly incompatible with the
> public policy of the State addressed" (Article 7(e)). We fully recognize
> that the courts in this nation and others must have some room to refuse
> to honor choice of court agreements in extraordinary circumstances, but
> are concerned that the Working Group Draft specifies no standard for
> what will render a particular provision "null and void" or "incompatible
> with the public policy."
>
> Without such a standard, there is a risk of inconsistent approaches as
> to when a "choice of forum" clause is "null and void" between those
> countries that have detailed and expansive "mandatory laws" (or
> doctrines of "ordre publique") and those countries which instead believe
> more strongly in freedom of contract and generally entrust such matters
> to the agreement and discretion of the contracting parties. As the
> Working Group Draft moves forward, we urge you to promote the goal of
> certainty by making plain that these exceptions should be applied only
> in rare circumstances.
>
> We would also use this opportunity to raise two more specific but
> important concerns. One relates to Article 15t which permits a State to
> declare upon ratification of the Convention that its courts may refuse
> to determine disputes if there is no connection between that State and
> the parties or the dispute. Our member companies. like many
> international corporations, produce and distribute their works on a
> worldwide basis, with different elements of the work coming from
> different countries. In such circumstances the various parties involved
> in the production of the work (and local subsidiaries may have been
> formed for various aspects of the work) may have intentionally chosen a
> court at the outset of the transaction. In a B2B transaction, the choice
> of the forum should not be so easily second-guessed. We urge you to
> consider working toward removing or modifying that section.
>
> Our final concern relates to Article 1.3 (k) and 1.4. We understand the
> distinctions the Working Group Draft seeks to draw between litigation to
> determine whether a particular patent or trademark is valid or invalid
> on one hand, and issues of their validity raised in a contract dispute
> between two parties on the other. The recent discussions by the group,
> however, suggests that the term "incidental question" in 1.4 is a source
> of confusion and requires some further explication. That explication may
> help clarify whether to consider extending the scope of 1.3(k) to
> copyrights.
>
> Once again, Mr. Kovar, we applaud you and your colleagues for the hard
> work and excellent progress you have made. We look forward to continuing
> to work closely with you, and hope that together we can achieve a
> successful outcome.
>
> Sincerely,
>
> Jack Valenti
>
> --
> James Love, Director, Consumer Project on Technology
> http://www.cptech.org, mailto:james.love@cptech.org
> tel. +1.202.387.8030, mobile +1.202.361.3040
>
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Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 131k members/stakeholders strong!)
"Be precise in the use of words and expect precision from others" -
Pierre Abelard
===============================================================
CEO/DIR. Internet Network Eng. SR. Eng. Network data security
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number: 214-244-4827 or 214-244-3801