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Source link: http://archive.mises.org/12176/ip-gone-wild-in-france/

IP Gone Wild in France

March 15, 2010 by

Information Protectionism strikes again.

Author Lalie Walker and her editor are being sued by famous Parisian textile retailer “Marché St-Pierre” for using the store’s name in Ms. Walker’s new fiction, Aux malheurs des dames. The store claims that the Walker’s use denigrated its reputation (in the story, Marché St-Pierre is the scene of some crimes).

Says the director of the company (my translation): “This is a trademark ! This site is protected by Law ! No one can infringe on it and no one can talk about Marché Saint-Pierre without the authorization of the owner and director.”  The owner wants the book removed from circulation and asks for 2 million euros reparation !

Here is the full story (sorry, no link in English seems to exist)

It is unlikely that the plaintiff will win the lawsuit and succeed in banning the book. But the fact that Ms. Walker must spend her time and money defending her work illustrates the degeneration of State-provided Law.

{ 36 comments }

Andras March 15, 2010 at 12:50 pm

We can all list hundreds of cases in which property laws have “gone wild”. However, we would not use them to question Property Rights in general. Or would we? Where will socialism stop?

Slim934 March 15, 2010 at 3:00 pm

That might be a valid argument if it were not the case that IP actually undercuts legitimate property rights.

I fail to see how one can engage in property-based arguments over something that does not fit the definition of property.

Andras March 15, 2010 at 5:11 pm

What is your definition of property?

Peter Surda March 16, 2010 at 8:19 am

Property arises by causing a measurable change (“mixing with labour”) or an attempt to prevent others from causing a measurable change (e.g. building a wall) on something that is so far unclaimed by anyone else. IP does not fit, because there is no measurable change on the immaterial goods. As I have attempted to explain several times, in its extreme form, IP can mean literally anything.

A far more interesting problem is in my opinion to what extent to include psychical effects in “causing”. I incline to the interpretation that these can only be included to the extent covered by contracts, as the psychical reaction is the responsibility of oneself. Again, if taken to its extreme, psychical effects could mean literally anything.

What is your definition of property?

Andras March 17, 2010 at 12:21 am

My definition of property: whatever that was acquired by its owner legitimately, let it be through purchase, homesteading, inheritance etc.

Peter Surda March 17, 2010 at 7:08 am

Your “definition” does not explain what actions are considered “homesteading” and the scope thereof. As a patent proponent, you seem to include “writing a formula on a paper” as “homesteading” and anything that matches that description as the scope. With such a broad definition, literally any action can be considered homesteading and the whole universe as the scope. Furthermore, you also propose a time limit, which is not reflected in the above definition. I appeal to your scientific background to recognise the vagueness of your definition and its practical insufficiency.

Andras March 17, 2010 at 1:27 pm

Peter,
Homesteading is subjective. If you set the rules of homesteading to comply with my, I believe to be correct views all your issues are answered perfectly. I can not see why even a time limit would be an issue.
Please also consult patent law. What you allege is simply not true. Writing a formula is not enough, you need three more subqualifiers, novelty, being progressive and practical. All three need proof. These make a patent a real homesteading of an idea. When you make them public you give up your trade secrets for time monopoly.

Peter Surda March 17, 2010 at 3:01 pm

By claiming that homesteading is subjective, you invalidate your own argument. If it is subjective, then there is no reason why either of our definitions should take precedence over the other. You can’t have it both ways, you can’t be both subjective and correct at the same time.

Your explanation of how patents work does not invalidate my point. It just shows additional arbitrary conditions. Why should they be any more relevant than my dibs?

Andras March 17, 2010 at 3:42 pm

Peter,
I see your point and I think this is your pitfall. You expect an objective way to homesteading and in turn to property. Although from the individual’s side you can have “objective” claims for your property your fellow claimers will force you to compromise. They either use your rules or do not so the possible outcomes are quite diverse. Since I prefer peace to permanent war I vote for compromise even if I may not agree. I accept the arbitrary rules. The only way for me to object is to vote with my foot (and brain) and withdraw my inventions in the case of IP. In Austrian terms I become a marginal inventor. With time, rules will reflect the best compromise between the givers and the takers, however, there always be outsiders and I accept that, too, as any time I might become one of them. I definitely will not accept your definition of property connected to tangibility. However, if that becomes the rule I will live accordingly. You can take away my inventions but you can not force me to invent. It may take some time to run out of public inventions but it will. You can see similar battle in generic vs. original drug development. Even generics recognize, after a while, that they need us left alone. That is their best interest, too.

Peter Surda March 18, 2010 at 7:56 am

We are obviously talking about different things. If I say that 2+2 = 4, you cannot invalidate my argument by pointing out that if I attempt a construct a house that measures 20×20 meters on a square area of land that measures 400 square meters, the government will send their goons that will smack me on the head.

You are of course correct that utilitarian approach necessitates the weighting of goals. Again this does not invalidate my claims.

As I have been trying to explain multiple times to various people and typically without any effect, unless you deny the validity of externalities, you can never obtain the full income generated by of any of your “product of mind”. From the income perspective, accepting IP as property only has a quantitative, not a qualitative, effect on the profits. Even without IP, you are free to use your ideas and results of reasearch to earn money by contractual relationships or using some of the methods I described in a different post. Ceteris paribus, you would earn less money. But of course there is no ceteris paribus in reality. Apart from the revenue effect mentioned, the presence/absence of IP also influences costs, and relative profitability of different business models. Your unwillingness to change the ways you conduct business in order to adapt to the changed conditions on the marketplace is a very weak argument to defend your position.

Any market restriction whatsoever causes some people to be better off by relieving the pressure of competition from them. Any removal of a market restriction whatsoever increases the market pressure on some people and these protest. Why should your dissatisfaction take precedence over the others’? Because the results of your work have beneficial effects? Results of all market restrictions have some beneficial effects. Why should those you favour have precedence over the others?

As I said elsewhere, I have no problem per se in accepting property rights in immaterial goods as a valid theory, provided:
- utilitarian net benefit is demonstrated, or
- natural boundaries are explained

While I doubt that IP proponents will manage to do either, since I can’t disprove either, I encourage them to attempt.

Andras March 18, 2010 at 12:11 pm

Peter,
You totally misunderstood me. I am not talking about revenue and income. I am an inventor, I don’t care about money beyond my basic survival level. And that I can easily get without inventions.
You talk about contracts without owners and market without prices and then you offer it to be tied to tangibles just to justify your scheme. Why would it be simpler by complicating it?
And for this
“As I said elsewhere, I have no problem per se in accepting property rights in immaterial goods as a valid theory, provided:
- utilitarian net benefit is demonstrated, or
- natural boundaries are explained”
I offer an example:
Compound A (Exact Structure) cures you of C.Difficile infections. This bug causes fulminating diarrhea and kills you in a miserable death. Before Compound A, one of the accepted method of treatment was to eat shit, literally, of your healthy relative. Compound A was never made before as it is a result of a long process, called drug discovery. During this process, not only the efficacy but also the safety of A is proved. It comes in a convenient pill form. You swallow it and you will not explode. However, the pill also allows people to figure out what is in it. It takes about ten minutes. Another week and you have unlimited supply of the pill. Unless, you have a patent system which allows you to recover your decade long investments. You got net benefit (unless you like eating shit) and you got natural boundaries, more exact than your land homesteading.
Let you offer an alternative business model without IP.

Peter Surda March 18, 2010 at 3:37 pm

I believe it is you who misunderstood me. In addition, you continue to repeat the fallacies that have long been refuted. Such as contract and prices requiring exclusion.

Unlike you, I do not formulate my theories because their outcome would suit me or a specific person. I formulate them in order to determine how things are, instead how they should be. Surely as a scientist you are familiar with the principle of falsifiability? I have incrementally tried various approaches to IP. In the beginning, I was an IP proponent. However, successively it turned out that the evaluated theories did not match reality, contained contradictions or gaps in argumentation. The one that I formulated above is the current result of the process. So far, I wasn’t able to falsify it and neither were IP proponents. I expect IP proponents to go through a similar process, questioning their own assumptions. Sadly, this is not what IP proponents are doing. Their reactions are typically a bunch of fallacies, pseudo-religious doctrines and unproven utilitarian assumptions.

The example you provided is not a proof. The story described might be true, but the “proof” depends on the assumption that without IP, the costs would be higher than the revenues. First of all, since IP influences both costs and revenues, there is no apriori reason why it should be so. It could very well be that IP is the reason for the costs being so high and your causality is reverse. Second, both costs and revenues are changing variables, so the outcome could be that the time to discover it without IP might simply be different (e.g. later). Third, you neglect the concept of opportunity costs. It is possible that the extra money that was spent on the development might have bought bread for people that instead starved to death.

If you want to persuade me, you need to abandon a method of argumentation that is based on beliefs and emotions.

Xavier Méra March 15, 2010 at 5:42 pm

I don’t think that there is room in a genuinely free society for IP as usually understood but this is peripherical to the point I wanted to make. I could have written the same post even if I thought there were some legitimate IP rights. The reason is that it strikes me as obvious that no reasonable IP theory -if such a thing exists- could justify what the owners ask, or more specifically, could justify the statement from the boss according to which “no one can talk about Marché Saint-Pierre without the authorization of the owner and director”. So, that some kind of IP rights would be part of the rules of a free society or not, this case would still be an illustration of a degradation of the quality of law.

You say that we could list cases in which property laws have gone wild. I would not use them to say that there is something wrong with property rights in general. Instead I would say in the spirit of this post that it illustrates a pattern, namely that the quality of law provided by our rulers tends to become poorer and poorer as time goes by. I would say that genuine property rights are less and less protected and more and more infringed upon by the authorities supposedly in charge of their protection. And I would say that this is the trend we can expect under monopoly provision.

Ficus Rubusto March 15, 2010 at 1:18 pm

If the store wins, what would that do to the movie industry? Many American films feature famous French landmarks and stores. Does France really want to go down that road? Just think if the makers of the Da Vinci Code or Angels & Demons were afraid of being sued!

Artisan March 15, 2010 at 2:50 pm

According to the article, the book clearly plays upon the Jewish owner stereotype and mocks his would be avarice. This may be considered normal liberty of expression, but it is also clear that it conflicts with the image the real owner tries to convey to his products. Antisemitism is not well accepted at last in today’s Europe and thus the book’s pun would presumably have little impact in reality. It wasn’t always like that in France. The Jewish owner may react in a very oversensitive way, due to the history of his family in Europe (his name is Dreyfuss, for those who know French history).

Xavier Méra March 15, 2010 at 4:19 pm

Artisan, I do not see anything in the article suggesting that the “book clearly plays upon the Jewish owner sterotype and mocks his avarice”. The only thing mentioned that the plaintiff does not like is that a character in the story accuses the owners of having kidnapped some other characters. This is supposed to denigrate the reputation of the actual owners in the real world.

Given how sensitive the media are in France regarding anything related to racism or antisemitism, given the fact that any expression of racism or antisemitism is punished by Law there, it would be surprising that the owners would not use that charge against the author and editor if the book conveyed any sympathy for antisemitism. And it would be even more surprising that the article would not mention it.

Artisan March 15, 2010 at 6:54 pm

OK, in the article you linked I read “Marché Saint-Pierre store is property of family Dreyfus” located in the 18th Arr.
As I wrote, that’s a famous Jewish name in a traditionally Jewish district, especially so the trade of fabrics has that connotation too (Information not in that article: In 1942 among the 13.000 Jewish people of Paris arrested and deported to the VelDiv, about 2000 were from that circumscription)

And later this eventual hint to avarice in the book: “Violette Margelin aurait été kidnappée pour leur faire cracher leurs supposés millions”. Later it is mentioned that the direction of the store is suspected to have organized the alleged kidnapping itself…

It seems rather harmless to me I agree but then again, antisemitism left some wounds in France till now I guess.

Xavier Méra March 15, 2010 at 10:36 pm

Ok, I see what you mean. You’re certainly right about the Dreyfus name and antisemitism is still a very touchy topic in France. Note however that Dreyfus is the name of the actual owners. It is not the name used in the story, as far as I understand. Now, I fail to see that kidnapping for money fits a specific cliché regarding Jews. In any case, the plaintiff does not seem to raise the charge of antisemitism. Now of course, even if antisemitism was involved, this would hardly alter my point.

Artisan March 16, 2010 at 4:47 am

Of course its only a slight allusion to the unmistakably Jewish environment of the store.
Someone expresses in the book a vague resentment towards a rich fabric trader.

The only link to reality here is the name of the store as you say. No doubt though that antisemitism could make more out of it but so what? It’s obviously not the intend of the writer. The owners alas seem to suffer from acute paranoia.

I doubt that their case can be won in fact… but I haven’t read the book.

Renaud Fillieule March 15, 2010 at 5:37 pm

When will this IP madness stop?

Having read the paper (I am French), there is not a hint of antisemitism. And by the way, the site ‘Rue 89′ is leftist.

newson March 15, 2010 at 6:38 pm

logical outcome of a degenerate law.

Tad March 15, 2010 at 6:55 pm

First, this is not an IP case, it is a defamation case. Drawing any conclusion about IP law based on this would beinvalid reasoning. There is perhaps an argument about defamation law here, but then it has been long practice in works of fiction (especially those that could defame individuals) to include a disclaimer stating that all characters, etc. are fictional. The works cited in the article did not portray any real persons in negative lights, so even here we would be in doubtful territory.

Second, how does damaging the reputation of a company or individual differ from damaging the physical plant or property of the company or individual? The premise that a “trademark” or other “intellectual” output is not “property” because it is not tangible is to pervert the essential idea of “property.” A thing is not property because it is a tangible, physical thing; it is property because someone has improved upon something as it was found in nature, and the person who improved upon it is entitled to the fruits of his labor. The prevailing presumption behind intellectual property is that the product of one’s mind is a “thing” that is owned by the person or group that produces it, that they are entitled to the fruits of their efforts. I have not seen any argument advanced to refute this presumption that meets the burden of proving the claim. It is the premise that intellectual property isn’t property that fails to support the asserted conclusion.

Finally, the premise asserted by Slim934 that “IP actually undercuts legitimate property rights” is absurd. The unstated premises behind this claim are usually stated as: I own the paper, therefore I have the right to put the ink on it in any manner I choose. Since I have the right to put the ink on the paper as I choose, you do not have the right to forbid me to use your idea for the pattern of that ink. In graphical form,
P->C
C->~F
———
p->~F

However, if we substitute the word “printing press” for the word “idea” in the logic, the fallacy becomes apparent. I am certainly permitted to put the ink on the paper however I wish, but to assert that you cannot forbid me from using your printing press to do so is clearly not a violation of my rights, and is clearly an exertion of your property rights. Again, the whole argument devolves on the premise that for something to be property, it must be tangible. This premise is still not established well enough for the case against IP to be sound. Until you can establish that a person is not entitled to the fruits of his intellectual labor and effort, without simultaneously destroying the idea a person is entitled to the fruits of his efforts toward improving physical things, the argument against IP will fail.

Do not mistake my point as agreement with the current state of IP law. I merely point out that the argument against IP law fails with the premise that intangible things are not property.

Russ March 15, 2010 at 7:39 pm

The fruits of a person’s efforts with respect to physical property is that finished product, and the person must have exclusive rights to that object to keep those fruits. Physical property is exclusive. With respect to IP, though, the person does not need to have exclusive rights to the idea to get benefit out of it, since IP is easily copyable.

It is not that we refuse to consider anything except tangible things as property that is the problem. The problem is that you continue to insist that ideas are the same as physical property (exclusive), when they are obviously not.

I think that arguing about it is moot, though. Things that are easily copyable will be copied. The nature of the thing will out.

Xavier Méra March 15, 2010 at 9:17 pm

Tad,

I might have been a bit sloppy with the terminology. But first it is not entirely clear from the article (or from other articles I read) if this is a defamation case, an IP case in the usual sense, or both. The sentence I quoted from the boss clearly mentions trademark so that it fits the IP category. At the same time, this sentence comes from an interview. It is not clear that the actual charges brought before court include trademark infringement or not. And defamation is also mentioned in the article.

Second, I understand that IP does not cover defamation in the language of positive law, but in essence, we are talking in any case about an alleged right on intangible things, “ideal objects”, or shall I say “intellectual property”, since defamation is about an alleged right to reputation.

Stephan Kinsella March 15, 2010 at 9:37 pm

IP traditionally includes patent, copyright, trademark, and trade secret. But I think a good case can be made that reputation rights (defamation law) is another type of IP right as well.

Peter Surda March 16, 2010 at 11:38 am

Until you can establish that a person is not entitled to the fruits of his intellectual labor and effort, without simultaneously destroying the idea a person is entitled to the fruits of his efforts toward improving physical things, the argument against IP will fail.

What is “fruits of intellectual labour” and how is it distinguished from externalities? Until you explain the distinction or confirm that there is none, the argument for IP will fail.

If you use a physical good, this causes a measurable change in the good (even temporary). The concept of measurable change determines the boundaries of property. If you attempt to use an immaterial goods, there is no measurable change in the immaterial good. The only way to establish “use” of immaterial goods is by using metaphors and subjective evaluation. This is why it is an unsuitable base for boundaries. It is subjective, and can mean literally anything.

Tad March 16, 2010 at 9:17 pm

Peter,

While your argument makes sense, you imply that those who disagree with you have the burden of proof. Since IP law is well established and has been in place for centuries, you are arguing against the prevailing presumption, and therefore you have the burden of proving your assertion, not the other way around. My point is not that your position is wrong, merely that it fails to meet its burden. The mere fact that IP law exists and that many people accept it as fact establishes that the argument for IP has succeeded. This is not to say that it should succeed, merely that it has succeeded, for good or ill. If IP law is to be changed or eliminated, then those who argue for the change must prove their case.

I would also point out that your argument that “Until you explain the distinction or confirm that there is none, the argument for IP will fail,” is, in this case, an argument from ignorance. The absence of evidence to the contrary of your argument is not evidence in support.

I understand your point about measurable change and boundaries, but I would point out that this definition is also arbitrary. It is one of many possible definitions. Ultimately, the definition of property is what people agree to as the boundaries of property. Just as Stephen argues that “defamation” could be considered “IP.” In fact, the concepts of property, measurement, boundaries and so forth are ideas. We are actually arguing about the “boundaries” of an “idea.”

It seems to me that it would be more fruitful to base a case against IP on some measurable benefit from changing the current way we look at IP rather than trying to argue that the immaterial product of the mind is not property. Under the current conditions it is presumed that protection of IP provides an incentive to produce intellectual works, and therefore provides some measure of protection for the risk involved in bringing forth new intellectual goods. Is this somehow malinvestment? Would eliminating IP provide a better incentive/disincentive mix? Would the change result in less litigation, in turn resulting in less destruction of wealth? Is it better to resolve disputes of defamation on the plains of Weehawken rather than in a court of law? Would it redistribute wealth such that you and I would be rich and Bill Gates not rich? What change do you think to create? Why should your definition prevail against the currently prevailing definition?

Let me reiterate that I am not saying the position against IP is wrong; I am saying that the case hasn’t been fully made. The weak premise is the disagreement about the definition of what “property” is. Even if we decide that intellectual output should be called by another name, I am still not convinced it should not be afforded the protections we currently call IP rights. Without agreement on that question, the argument fails because your opponents will find it unsound.

newson March 16, 2010 at 10:00 pm

to tad:
slavery, having existed for centuries, acquired legitimacy by dint of its longevity? is that the drift of your argument? what has the age of a statute got to do with legitimacy, which is what is being discussed here?

Peter Surda March 17, 2010 at 10:26 am

I appreciate that instead of evading confrontation, you explained your objections. This has been quite rare with those who oppose my arguments regarding IP.

Allow me please then to address your objections. First of all, as far as I know, the law does not claim copyright, patents, trademarks etc are property. Furthermore, the term “intellectual property” is not present in the law. It is a colloquial expression that tries to put these laws under a common umbrella. None of the natural rights-based pro-IP theories I heard so far match the current legal system.

Second of all, I admit that from certain point of views, the burden of proof is on me arguing for a change. I do not claim such a point of view is invalid, I merely am not interesting in addressing it.

There are two types of pro-IP theories. The natural rights ones, which tries to establish objective criteria for property definition, and the utilitarian ones, which try to create such a property definition that maximises utility. I rarely discuss the latter. I think it has been addressed sufficiently in Against Intellectual Monopoly by Boldrin&Levine. Furthermore, since I realised that although I had been a software engineer all my career, I have not used either copyright or patent to earn money, I lost personal interest in defending utilitarian IP arguments. I had not actually tried to avoid IP deliberately, just for whatever reason, none of my jobs or business activities depended on it. It is possible that on occasions which I cannot recall my income did depend on copyright or patents, but all those that I can recall (i.e. overwhelming majority) did not. Furthermore, many utilitarian IP proponents do not consider it even plausible that the costs outweigh the gains and IP could be a net loss, so a debate with them is pointless.

So what remains is the natural right IP theories. My efforts are actually more limited. I am merely interested in finding a property theory that allows to determine property boundaries objectively. To rephrase it, a natural right property theory should, if all facts are known, directly determine the boundaries. My theory, stated above, fits this criterion. I consider it theoretically possible that a pro-IP theory that fits this criterion also exists and have been pleading for IP proponents to formulate it. Regrettably, all of them so far failed to do so. Their theories do not allow objective boundary determination and depend on subjective evaluations.

To summarise, my efforts are strictly scientific and follow the path of falsifiability. True, I have not been able so far to exclude the possibility of the existence a natural right IP theory (I was forced to retract some of my attempts which proved insufficient). However, I have proposed a consistent natural rights property theory that does not include IP, while IP proponents have failed to present a consistent property theory that includes IP. By all means, I encourage them to do so. It is by the attempts to refute opponents’ arguments that human knowledge progresses.

Tad March 17, 2010 at 2:58 am

Newson,

You are arguing the wrong question. I am NOT saying that IP law is right or wrong, and I am certainly not arguing in support of IP law. I AM saying that, because the prevailing presumption is what it is, that those who would change it have the burden of proving their case, not the other way round. Your argument is both a red herring and a straw man. The legitimacy of slavery is totally irrelevant to the question of whether there is agreement on the premise that intellectual product is not property, and to attempt to equate the moral repugnance of slavery with that of IP law is to cast the discussion is a falsely, and grossly overstated, negative light.

I have deliberately not stated my opinion one way or the other, but have focused on the validity and soundness of the argument. An argument is valid if the premises, assuming they are true, lead inescapably to the conclusion. An argument is sound if it is both valid and the premises are true, such that the conclusion must be true. My point — and this is the only point I am trying to make here — is that the premise that intellectual output is not “property” neither leads inescapably to the conclusion that IP should not be protected by some sort of property right (by whatever name you may wish to call it), nor is this premise well enough established and agreed upon that that if it did lead to that conclusion, we could call the argument sound.

newson March 17, 2010 at 11:06 am

to tad:
actually it’s a reductio ad absurdum: the fact that laws are on the books for centuries is neither here nor there. given that the costs of the legislation are visible and real, the onus is on those supporting the status quo to justify them either on moral or utilitarian grounds. any impost or curtailment of freedom should be subject to constant scrutiny. those that don’t stand up to review should be dropped post haste.

who knows what the what the “prevailing assumptions” are? depends on who you ask. most people know the law, but many may not support it ideologically, or they may. this is unknowable.

the anti stance argues for a legal vacuum, no active imposition of costs, so it’s to the pro side to make an argument for the continuing funding of the existing programme.

Bruno DeGourville March 17, 2010 at 5:34 am

Please find below a translation of the French article mentioned by the author of this post.So that some nonsense about anti-semitism and what this case is about might stop. And so that others who are not fluent in French might also take part in the discussion.

But first let me mention that (and this is important for I doubt the Court will ignore it) the title of Mrs Walker’s book “Aux Malheurs des Dame” (which I translated as “The Ladies’ Misfortunes” ) is a clear reference and pun on the famous 1883 Émile Zola’s novel: “Au Bonheur des Dames” (“The Ladies’ Paradise”).

Zola’s story is set in the world of the department store, an innovative development in mid-nineteenth century retail sales. The plot is played against the career of Octave Mouret, the owner of the store Au Bonheur des Dames, whose retail innovations and store expansions threaten the existence of all the neighborhood shops.

The main difference between Émile Zola and Lalie Walker, beside their notoriety and literary skills, is that in the case of “Au Bonheur des Dames”, Émile Zola did not mention “Le Bon Marché” by name. But he made sure, thanks to his literary prowess, that the reader knew exactly which famed department store of the time he was actually targeting in his social satire. He never got sued for that.

Now to the reference by some to the anti-semitic character of the book or the case: it’s nonsense!

Artisan: if you finally admit as you say in your own words that “its only a slight allusion to the unmistakably Jewish environment of the store.”, why even mention it in the first place?

Furthermmore, there is nothing “unmistakably Jewish” in this case or in the novel. The owners of the actual store might be Jewish. So what? In the book the owners are not! And Montmartre has never been considered a Jewish neighborhood of Paris either. Saint Paul-Le Marais has always been and is still the Parisian Jewish district by excellence. It’s not because a Jewish name is mentioned right after a dollar amount, or that you have a Jew and money involved at the same time in a fictional plot that anti-semitism is an element to be taken into consideration. Anti-semitism has absolutely nothing to do with the topics at hand. So again, stop the non-sense and stick to the subject.

Also, the legal case mentioned is an IP one too, albeit indirectly. If one can’t even remotely use a landmark name without prior approval of its rightful owner (which is the case in Marché Saint-Pierre vs. Lalie Walker/Francois Besse/Parigramme Publishing/Philippe and Helene Madgelonnette and the whole world,read the article in English below) IP law is inferred.

And as Robert Gabbay, CEO of the company that owns Marché Saint-Pierre said himself irritatingly: “This book mentions our brand! It’s a trademark! This place is protected by law! No one can touch nor speak of the Marché Saint-Pierre without the permission of its owner and manager. What’s next?! This is slander!”

THE ORIGINAL ARTICLE TRANSLATION:
So far, no filmmaker or novelist had been sued because he had his hero jump off the bridge of the Tournelle before murdering half of his characters at the Gare de l’Est train station.

In the “Da Vinci Code”, the curator of the Louvre is murdered. The movie by Jean Mitry, “Mystery at the Folies Bergere,” tells of mysterious murders in the concert hall of the same name and Gaston Leroux transforms in his novel “The Phantom of the Opera, the Opera Garnier into a haunted house.” These three literary works and hundred of others taking place at actual landmark places have one thing in common: they have never been sued for libel.

On the other hand, Lalie Walker, a thriller novelist, find herself sued for libel and insult because the plot of her latest detective novel takes place at the Marché Saint-Pierre, in the eighteenth arrondissement of Paris.

“The Ladies’ Misfortunes” published in the fall of 2009, begins with the disappearance of Violet, a cashier at the Marché Saint-Pierre. A strange odor of burnt, an other missing person, Voodoo dolls nailed to the doors of the department store, the bizarre behavior of its managers … that is the eerie atmosphere that prevails at this old Parisian department store.

This is the setting for Lalie Walker’s latest novel for which she warns us in the foreword:

“If the Marché Saint-Pierre does exist, and many elements of this novel come from my own wanderings and encounters at Marché Saint-Pierre, everything here is fiction. For fiction only could allow me to dig the recesses of the human psyche.

It is my vision of Marché Saint-Pierre, a very reputable and well visited place, that I give here, and which serves me as a fictional place and unity of time.”

“This Is slander!”

Village Orsel, Administrator of Marché Saint-Pierre (owned by the Dreyfus family), does not see it that way. The trademark owners of “Marché Saint-Pierre” have subpoenaed Francois Besse, founder of Parigramme Publishing, and Lalie Walker. They demand to stop any further distribution of the book, withdrawal it from circulation, as well as two million euros in reparation.

Contacted by Rue89, Robert Gabbay, CEO of the company, was irritated:

“This book mentions our brand! It’s a trademark! This place is protected by law! No one can touch nor speak of the Marché Saint-Pierre without the permission of its owner and manager. What’s next?! This is slander!”

Revenge?

The long reading of the subpoena before the Correctional Court shows that the management at Marché Saint-Pierre is not only suing the author and her publisher but also two of its former employees, Philippe and Helene Madgelonnette

Laid off in 2006, this couple demonstrated daily for three years in front of the Marché Saint-Pierre to protest their firing. According to the court summons, there is no doubt in the eyes of the Management that:

” The author is clearly tele-guided by Monsieur et Madame Magdelonnette’s hate and desire of vengeance against Messieurs Elbaz and Gabbay, and their desire to see the store going downhill”

“I have never met them,I did not even know their story,” says Lalie Walker. Her editor, Francois Besse, confirms:

“This connection is ludicrous. Neither the author, nor I know them. We’ve never met them. And it is not the intent of the book. This is not an investigative report on the social working conditions at the store.
It’s a detective novel, a fiction! Writing a book tele-guided by former employees who seek revenge would require an incredible hand!”

Can a Fiction Be Insulting?

To this accusation is added the one of writing a book against the five floor fabric store and its customers. Backing his accusation with excerpts of the totally fictitious novel, Village d’Orsel accuses:

“This constitutes slander with aggravating circumstances, meant to affect the honor and respect of the plaintiffs to scare away the customers once more.”

This excerpt for example is deemed offensive:

“Rumors were running around every day with a little more frenzy and virulence about strange cloth dolls nailed to doors and wooden shelves. The Michel brothers reportedly received anonymous death threat letters. Violet Margelina would have been kidnaped to extort alleged millions …”

Further in the book, when Lalie Walker has one of her characters say that the Michel brothers, owners of the fictitious stores, might be the kidnapers, the actual owners are offended:

” Those abductions of women charged on the Marché Saint-Pierre Management are defamatory, and undermine the honor and respect of the plaintiffs.”

It would take too long to list all the numerous book extracts at fault.

No Confusion Possible

William Savage, a lawyer specializing in communications law, said he was very surprised:

“”The book was published by Parigramme in its Black 7.5 Collection. As the name of the collection suggests, it is clearly a fictional thriller. A foreword reminds the reader of the fictional character of the novel at the beginning of the book.

There could be libel even in fictional works. But the distinguishing criterion is when confusion may arise between reality and fiction. When you read the book, there is no such confusion possible. No actual people’s name is mentioned. The owners of the store in the book are brothers. Which is not the case in reality.

Two million Euros is excessive. It’s not even in the usual range of cases of libel. ”

Should reference to landmark places in fictional work be subject to the place owner’s approval? Or, as suggested by one of Marché Saint-Pierre’s manager, one should only speak well of a landmark to have the right to mention its name?

Lalie Walker is stunned:

“I went to Marché Saint-Pierre a few times. But I wrote a novel. It is entirely fictitious. I only set the imaginary at Marché Saint-Pierre and in Montmartre. It’s like charging Léo Malet for his stories about Nestor Burma in Paris.

I really don’t understand what I’m doing here in this legal case with so high a financial stake. This case threatens authors. It will be hard for us to do our job if we are sued for our fictional works.”

Rue89 has read the novel. And it strikes us that no connection with reality, even implicit is possible. Except the name of the landmark. François Besse (founder of Parigramme Publishing) and Lalie Walker must appear before the judges of the 17th Chamber of the Correctional Court of Paris on 9 April.

Tad March 17, 2010 at 12:16 pm

Since I first made the point that this is a defamation case rather than an IP case, I will respond to Bruno’s post. While the alleged libel/slander is against the company’s trademark, the symbol of its reputation and part of its intellectual property, it is not, as near as we can ascertain from the article, a case involving IP law. The author of the article clearly thinks that the case is absurd, and perhaps it is, but clearly the plaintiffs think they have a case under French law. Without benefit of briefs from both sides, a view of all the evidence, and an understanding of French jurisprudence, I am not prepared to discuss the merits of the case. Is this a case of “libel litigation gone wild?” Perhaps, but that is not the nature of our discussion here.

Several, including Xavier and Stephen, have pointed to the fact that “reputation,” like intellectual property in general, is intangible. This is a very relevant point, as it goes directly to the heart of this discussion. But it still fails to address the central question of whether there are “rights” that exist in these intangibles that should be protected by law. It is here that I maintain the argument against IP (or defamation) law fails.

As I think about this, there are two ways to frame the argument. The first is to assert as premises: if something is tangible then rights exist. IP is not tangible, therefore rights do not exist. While we would all probably agree with the premises, this is, unfortunately, the classic fallacy of denying the antecedent and is invalid on its face. Premises are true, but they don’t lead to the conclusion.

The second way to frame the argument is: If something is intangible, then rights do not exist. IP is intangible, therefore rights do not exist. This is a valid modus ponens argument, but the first premise is not established well enough to consider the argument sound. The prevailing presumption is that rights do/should exist in intangibles. it is here that the discussion should focus.

Peter Surda March 17, 2010 at 5:08 pm

The first is to assert as premises: if something is tangible then rights exist. IP is not tangible, therefore rights do not exist.

Well, I don’t make an assumption like this. I wouldn’t mind accepting a theory that claimed that there are property rights in intangible goods. What I mind is a theory that says that some intangible goods can be property and some can’t. My objections to the concept of immaterial goods as property is the inability of IP proponents to explain:
- how to differentiate between those goods that can be property and those that can’t
- how to establish boundaries of immaterial goods

I consider it possible, although unlikely, that some day an IP proponent will actually be able to answer these questions.

Tad March 17, 2010 at 9:13 pm

Fair enough, Peter. Since I am not an IP proponent (or opponent), I will leave it to others to answer your challenge to your satisfaction. But let me ask, is it your position that there isn’t a differentiation, or is it that you are dissatisfied with the way that the differentiation is currently made? Are you saying there are no boundaries, or are you saying you don’t like the current status quo? It seems to me that the current body of IP law, with its attendant case law, attempts to both make the differentiation between what is protected and not, as well as attempting to define the boundaries of the goods produced.

Peter Surda March 18, 2010 at 7:22 am

The boundaries of immaterial goods as explained by IP proponents are very fuzzy and unscientific. They are defined by interpretation, subjective valuation of commonalities, historical developments, weighting of various aspects, utilitarian assumptions, transposition of material property principles and so on. Often they are not defined at all, merely asserted to be “obvious”. This would be an acceptable theoretical approach if the proponents did not claim that the boundaries are natural and objective, or they provided backing for the utilitarian assumptions.

Contrast this with contractual handling of immaterial goods (which is what some IP opponents on this site, including me, favour). The boundary is defined inside the contract. There is no need for it to be “objective”, “natural” or have a positive utility. All that is necessary is that the parties involved agree on the boundaries. Third parties’ opinions are irrelevant.

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