Some reflections on the duality of regime for software protection in the European Union

Although the framework for protection of computer programs has been established in the European Union more than two decades ago, it has not undergone any major changes. Opinions of Advocate General Yves Bot have convinced the Court to advance the concept of the plurality of copyright regimes applicable to software: source code, object code and documentation would be protected under the Software Directive, whereas interfaces, programming languages, data formats and software manuals are dealt with as literary works under the InfoSoc Directive. In SAS Institute v WPL, the Court also ruled that copyright in a computer program cannot be infringed where the lawful acquirer of the license neither decompiled the object code nor copied the source code of the computer program, but merely studied, observed and tested that program in order to reproduce its functionality in a second program. This ruling paves the way and acknowledges the reverse engineering efforts on the Old Continent.     

Are internet robots adequately regulated?

The robots.txt protocol allows website owners to specify whether and if so, what bots may access their sites. On the one hand, websites owners may have good reason to fend off bots. The bots may consume too much capacity, they may harvest data that are not suitable for presentation elsewhere on the web, or the owner may have reasons for disallowing bots that lie in the relation with user of the bot. On the other hand, search engines, aggregators and other users of bots may provide social beneficial services based on the data collected by bots, i.e. data that are freely available to anybody visiting the site manually. How should the law regulate disputes that arise in this context? Two legal regimes (trespass to chattels and unauthorised access) have been examined. Based on the characteristics of the disputes at hand, a number of desirable characteristics for an ideal form of regulation are identified. When testing the two regimes they are found to be lacking. A structure for a form of regulation is presented that allows the law to develop in a way that does more justice to the disputes at hand.     

Europe after the U.S. Pivot

Insofar as Europe's security and cohesion have for decades been premised upon a strong American political and strategic engagement, Washington's intention to “rebalance” to Asia casts a shadow over the sustainability of a stable and coherent geopolitical order on the continent. This article argues that as the United States seeks to rebalance strategically towards the Asia-Pacific region a number of “indigenous” geopolitical trends are becoming increasingly important in Europe: an Anglo-French entente for a “maritime” Europe, a German-French “continental” project of economic and political integration, and Russia's resurgence across Europe's East. The growing prominence of competing geopolitical visions for Europe might even call into question the cohesion and direction of the institutional expressions of the U.S.- engineered Western order in Europe, namely the Atlantic Alliance and the European Union. Increasing geopolitical and institutional contestation, we contend, pose a number of challenges for both U.S. interests and European security.     

‘Unlawful Combatants’: The West's Treatment of Irregular Fighters in the ‘War on Terror’

The West's treatment of irregular fighters in the “war on terror” was highly problematic. This article contends that we must look beyond the assumption that political and strategic considerations compromised the law and led to the “invention” of the category of the “unlawful combatant.” Rather, the law of armed conflict itself includes strong exclusionary mechanisms towards irregular fighters. These exclusionary strands in the law came to dominate the West's strategic decision-making on the treatment of irregular fighters. Moreover, the fact that irregular fighters became such a vital issue post-9/11 was not a result of the war on terror being a new kind of war, as has often been argued. Rather, this article suggests that it reflects an identity crisis of the West's regular armed forces at the start of the twenty-first century.     

Non-Western Threats and the Social Sciences

As the Department of Defense strives to take the social sciences more seriously in the face of threats emanating from the non-West, it confronts several challenges. Among them, we Westerners cannot model non-Western minds. Nor can we devise a methodology that will accurately capture contingency. We may already be doing our “scientific” best with “pattern of life” targeting. Consequently, DoD should invest more heavily in individuals who already have an affinity for, and interest in, the non-West and who show promise as future commanders and talented analysts rather than spend large sums on trying to devise more comprehensive models, methodologies, and metrics.     

The Eurozone Crisis as a Challenge to Democracy and Integration in Europe

This article explores how both the sovereign debt crisis and the European Union's response illustrate fundamental characteristics of contemporary European integration. In the face of an unexpected emergency, national politicians took the lead and pressed ahead with more integration. The long-term results though depend on national acceptance of not just the bailout provisions but also enforcement of debt brakes mandated by the new EU treaty. This means democratic politics at the national level will continue to have a fundamental influence on EU affairs, while the North/South split will co-exist alongside a more marked separation between countries inside and outside the Eurozone. In this context of increased political turbulence within the EU, there is likely to be only a limited window of opportunity for successful negotiation of a free-trade deal with the United States.     

Cheap Hawks, Cheap Doves, and the Pursuit of Strategy

The post-9/11 threats to American security require a complete revision of American national strategy. For too long, presidents have had to favor quick, cheap solutions to crises, unable to count on support from the “homebody” public for long, drawn-out conflicts. “Cheap hawks” among them have hoped that apocalyptic rhetoric will suffice when resources fall short; “cheap doves” hope that by ignoring the threat, it will go away. But with the war on terror, the revival of geopolitics, and ever-accelerating globalization, the U.S. tradition of bellicose rhetoric backed by underwhelming force is a recipe for failure. To effectively manage its threats, America needs a new catechism and to make sure its economic, energy, and military policies support this.     

Can We Win a War If We Have to Fight by Cosmopolitan Rules?

After months of bombing, NATO achieved only a stalemate in Libya. That disappointing result may reflect NATO's commitment to respect “international humanitarian law,” now understood to impose severe limits on military operations that might harm civilians. This body of rules is a departure from traditional understandings of the law of war. The embrace of these inhibiting rules raises serious questions about whether western nations are now prepared to fight and win actual wars.     

Security governance in the maritime commons: The case for a transatlantic partnership

Power distribution in the maritime commons is changing. The inevitable relative decline of U.S. sea power provides an opening not only for China as a rising challenger but also for the European Union as a cooperative security provider. Although such a claim may have seemed farfetched a few years ago, the performance of the European Union in the counter-piracy Operation Atalanta off the coast of Somalia and in the Gulf of Aden, illustrates the possibility that the European Union will prove to be an unexpected player in the maritime commons in the twenty-first century. This possibility suggests a renewed transatlantic dialog over the governance of the maritime commons.     

Harvey Sicherman: An Appreciation

In this appreciative tribute, a vice chairman of FPRI's Board of Trustees assesses Harvey Sicherman's work in government and as President of a leading foreign policy think tank.