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New EU Law Proposed - Criminal Sanctions for IP Infringement
Monday, August 01 2005 @ 05:39 PM EDT

They probably mean well. They are thinking about criminal gangs and counterfeit goods that may, in some cases, actually harm or kill people, as well as the revenue lost. So EU lawmakers have come up with a proposed law that ensures that "all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences."

Several lawyers are already pointing out that actors like SCO would have a field day with such a law, because they could sue Linux end users in criminal court:

Richard Penfold, a partner at law firm DLA Piper Rudnick Gray Cary, said last week that the proposed directive could "quite possibly" allow the imprisonment of the boss of a company that is using infringing software, although it would depend on whether the defendant can argue that the infringement was unintentional. . . .

Ross Anderson, the chair of the Foundation for Information Policy Research, said the proposed directive could help SCO or other companies in future IP infringement cases against open source software.

"In future somebody like SCO will have another course of action open to them — the threat of criminal charges. This threat would enable SCO to cast a larger legal cloud," said Anderson.

Who'd be crazy enough to do that, others ask:
But Paul Stevens, a partner at Olswang, said it was unlikely that software users would be affected by the directive, as any company that pursues criminal cases against users is likely to suffer from the bad publicity.

"It's not that often that companies who have IP rights pursue cases against users," he said. "Most IP owners want you to continue buying their product and to continue dealing with them. If they started threatening someone with prison or a criminal record, how do you think their customers will feel?"

Who'd be crazy enough to do it? Um. SCO would. They already are suing end users.

That's just exactly the problem with powerful laws. Anyone can use them, and you have to figure someone will try to abuse them.

Don't you remember SCO's Complaint accusing IBM of violating export laws? Darl McBride comparing Linux users to pirates? Their worst minions accusing Linux users of even worse, of being criminals even? Falsely accusing the Linux community of taking the SCO site down with a DOS attack, an attack it later was shown came instead from criminal gangs pushing spam? SCO put that slander in their SEC filings, and they've never corrected it. Remember him writing to Congress about Linux destroying the US economy? What about their threat to use the DMCA to take down and confiscate Linux end users' computers or their software, like AutoZone? Remember the threat of a preliminary injunction? That's what I think they meant. Here's what they asked the court for in the way of "relief":

1. Injunctive relief pursuant to 17 U.S.C. Section 502 against Defendant’s further use or copying of any part of the Copyrighted Materials;

2. SCO’s actual damages as a result of Defendant’s infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. Section 504, SCO’s statutory damages and enhanced damages;

3. Attorney’s fees and costs pursuant to 17 U.S.C. Section 505; and

4. Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court.

As you can see, they not only looked into a preliminary injunction, they asked for a permanent one, against further "use". They may not believe all they said, but they surely said it, and they tried to do it. And if they had had any usable patents or even any demonstrable copyrights, do you imagine for one minute they'd hesitate to use it? Do you think they care about going over the top? Or even about losing customers? Once a company decides its only hope is extreme litigation, what does it care about customers? Lawsuits like SCO's come about in a framework where a company is going down the drain and sees IP legislation as its ticket to survival.

Just a little reality check. Speaking of which, the next time someone tries to tell you Linux is "antiAmerican" or criminal or used by pirates or aiding enemies of the US or other nonsense, I'd like to point out to you that the Department of Defense has authorized the use of Open Source software and the Pentagon uses it extensively:

In fact, the U.S. military to a large degree depends on free and open-source software for infrastructure support, software development, security and research, Bedford, Mass.-based Mitre found.
In case you missed the memo, it's here [PDF]. In fact, right now, the Navy is soliciting Linux kernel work from small businesses. (See items 139 and 143.) For that matter, if you want the stamp of approval to go even higher, you might like to know that the White House runs its web site on Apache on Linux, according to Netcraft. The fact that I even have to say all that tells you just how far some have been willing to go to achieve their ends. Such types must be considered when drafting legislation, because they wait like drooling hyenas in the bushes by the edge of the savannah, just waiting for a chance to pounce and cash in.

I thought it would be useful to show you the heart of the proposed legislation, Articles 3 and 4, and I've done it like this: the law's wording is presented first, and then their explanation is below it, in colored text, followed by a snip of the explanatory memo that is included in the proposed legislation [PDF], which you can read in its entirely if you wish.

**************************************

Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
on criminal measures aimed at ensuring the enforcement of intellectual property rights

Proposal for a COUNCIL FRAMEWORK DECISION to strengthen the criminal law framework to combat intellectual property offences {SEC(2005)848}

Article 3 Offences

Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.
This Article obliges Member States to consider all intentional infringements of an intellectual property right on a commercial scale as a criminal offence. It also covers attempting, aiding or abetting and inciting such offences. The “commercial scale” criterion is borrowed from Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), concluded on 15 April 1994 and signed by all the members of the World Trade Organisation. Article 61 obliges Members to “provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.”

The infringement must be intentional, that is to say that the act must be deliberate, whether it is an actual infringement, an attempt at infringement, or aiding and abetting or inciting such an offence. This does not affect specific liability systems such as the system laid down for Internet service providers in Articles 12 to 15 of Directive 2000/31/EC on electronic commerce 3.

Article 4 Penalties

1. For the offences referred to in Article 3, the Member States shall provide for the following penalties: a) for natural persons: custodial sentences; b) for natural and legal persons: i) fines; ii) confiscation of the object, instruments and products stemming from infringements or of goods whose value corresponds to those products. 2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases: (a) destruction of the goods infringing an intellectual property right; (b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence; (c) a permanent or temporary ban on engaging in commercial activities; (d) placing under judicial supervision; (e) judicial winding-up; (f) a ban on access to public assistance or subsidies; (g) publication of judicial decisions.
This article concerns penalties: besides imprisonment for natural persons, the Directive lays down a range of penalties to be imposed on both natural and legal persons, such as fines and the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. Other penalties are provided for specific cases: destruction of infringing goods and goods principally used in the manufacture of the goods in question, total or partial closure, on either a permanent or a temporary basis, of the establishment or shop primarily used to commit the infringement. Provision is also made for a permanent or temporary ban on engaging in commercial activities, placement under judicial supervision or judicial winding-up, and a ban on access to public assistance or subsidies. Finally, the publication of judicial decisions is provided for. This can serve as a means of dissuasion and as a channel of information both for right holders and for the public at large.
There is also a memo to explain why they think such a law is necessary:
EXPLANATORY MEMORANDUM GROUNDS FOR THE PROPOSAL

Intellectual property offences have become a very worrying phenomenon, linked in some cases to organised crime. We now have a substantial cross-border trade in goods which infringe intellectual property rights, involving: illegal production of counterfeit goods, organised networks for the transport of goods from the place of production to the place of consumption, sale of illegal goods and laundering of the profits.

To combat intellectual property offences effectively, Directive ..../../EC must be supplemented by means of measures for the approximation of criminal legislation and cooperation under Title VI of the Treaty on European Union.

This proposal for a Framework Decision therefore aims to strengthen the criminal-law measures to approximate the provisions laid down by law or regulation in the Member States concerning intellectual property rights offences and to facilitate and encourage cooperation between the Member States to repress these offences.

As regards impact on fundamental rights, it should be emphasised that the direct objective of this initiative is to implement Article 17(2) of the Charter of Fundamental Rights which states that “Intellectual property shall be protected”; it does this by approximation of legislation while respecting the different legal traditions and systems of the Member States as well as other fundamental rights and principles recognised by the Charter. The level of sentences has been chosen pursuant to the seriousness of the different forms of wrongful conduct, in accordance with Article 49(3) of the Charter to the effect that sentences should not be disproportionate to the offence. . . .

Article 2 – Level of penalties This article concerns the level of criminal penalties: offences must incur a maximum term of at least four years' imprisonment when they are committed under the aegis of a criminal organisation. The same applies where the offences carry a health or safety risk. The threshold of four years' imprisonment was chosen because it broadly corresponds to the criterion used to identify a serious offence. It is the threshold selected in Joint Action 98/733/JHA and in the proposal for a Council Framework Decision on the fight against organised crime [COM(2005)6 final] and in the United Nations Convention against Organised Transnational Crime. For natural persons or legal entities who commit the offences listed in Article 3 of Directive ..../.../EC, the penalties include criminal and non-criminal fines to a maximum of at least EUR 100 000 for cases other than the most serious cases and to a maximum of at least EUR EUR 300000 for those which carry a health or safety risk.

A risk to personal health or safety shall exist where the counterfeit product placed on the market directly exposes people to a risk of illness or accident. In the case of risk which may have serious consequences such as death or infirmity, it must be possible to impose aggravated penalties. . . . .

Article 4 - Joint investigation teams

The Framework Decision of 13 June 2002 12 provides the structure needed to set up joint investigation teams. To facilitate criminal investigations into intellectual property offences, the Member States must allow the holders of intellectual property rights concerned, or their representatives, and experts to assist the investigations carried out by these teams. It is very difficult to carry out investigations in this area and it is often essential to have the active participation of the victims, of representatives of the holder of the intellectual property rights or of experts in order to reach conclusions, and in particular to establish that products have been counterfeited. Member States have a good deal of latitude in this regard.

SCO in 2005 looks like a paper tiger, but think back to when they began, back to 2003. They were the bully on the block, and a lot of companies at first were terrified. Some even signed up for their baloney IP license, which Novell in its recent court filing has just called a scheme. Just think what an ethically challenged company, willing to try anything to save its own skin or to prop up its share price even temporarily for personal gain, could do with a law whereby they could shut down its victim defendant and send the CEO to prison. Note the law includes jail time for aiding or encouraging. I can see it now. Richard Stallman in the klink.

You need to think of worst case scenarios when writing new laws, because, as we have learned the hard way, they will happen.


  


New EU Law Proposed - Criminal Sanctions for IP Infringement | 267 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT -Here
Authored by: savage on Monday, August 01 2005 @ 05:45 PM EDT
Put your ot stuff here .... Don't forget to add links to what you post

---
Savage

In the 60's everyone took acid to make the world appear wierd
today everyone takes prozak to make the world appear normal

[ Reply to This | # ]

Don't Panic,PJ
Authored by: Anonymous on Monday, August 01 2005 @ 05:49 PM EDT
SCO would only have a field day if and only if selling or using Linux would mean
"intentional infringements of an intellectual property right on a
commercial scale".
Don't allege facts not in evidence yet.
It's a good law.

[ Reply to This | # ]

Corrections Here
Authored by: feldegast on Monday, August 01 2005 @ 06:04 PM EDT
"thememo [PDF]," needs a space....just before <a

---
IANAL
The above post is (C)Copyright 2005 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

Four letter words
Authored by: Anonymous on Monday, August 01 2005 @ 06:10 PM EDT
RIAA

Here's another set:

MPAA

Okay, not words exactly (I call poetic license. BTW, what IP rights does that
give me?)

These organizations control large blocks of 'IP', and they have already shown
that they will go to any length to sue grannies who never used the computer and
minors who cannot enter into a contract.

If these companies are allowed to press criminal charges, the courts will be
full. Even if you are innocent, it will cost some coin to defend yourself
against the suemongers.

--
Setup

[ Reply to This | # ]

U.S. Military Uses Linux
Authored by: Anonymous on Monday, August 01 2005 @ 06:35 PM EDT
Linux is Anti-American? Yeah right.<p>

United States Coast Guard uses Linux on some of their back-end stuff-like
databases. USCG is mostly Microsoft with a smidgeon of Linux.<p>

[ Reply to This | # ]

New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Anonymous on Monday, August 01 2005 @ 06:47 PM EDT
"all intentional infringements of an intellectual property right on a
commercial scale, and attempting, aiding or abetting and inciting such
infringements, are treated as criminal offences."

I think I agree with the post that has just been deleted. This seems like a
reasonable piece of legislation.

For SCOG to use it to their advantage they would have to show that their IP
rights were being infringed. If they could show evidence to such infringement
then they would deserve redress.
The European courts would not act however, unless *evidence* were to be
provided.

[ Reply to This | # ]

Response to the "Anti-American" sentiment
Authored by: cmc on Monday, August 01 2005 @ 06:50 PM EDT
If anyone came up to me saying Linux was "anti-American", I would
promptly respond with "Then why does the NSA make their own distribution
(SELinux)? Are you saying that the NSA is anti-American?" That should be
enough to put those people in their place for a little while, at least.

cmc

[ Reply to This | # ]

Behind Door #1
Authored by: Anonymous on Monday, August 01 2005 @ 06:50 PM EDT
I could understand Americans making a law like this, but given the backlash over
software patents it doesn't see "European", does anyone know what
American corporations are behind this?

[ Reply to This | # ]

New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: cmc on Monday, August 01 2005 @ 07:07 PM EDT
So this new proposed law would ensure that "all intentional infringements
of an intellectual property right on a commercial scale, and attempting, aiding
or abetting and inciting such infringements, are treated as criminal
offences."

OK, I understand the sentiment behind it, and I agree with the sentiment. And
even in practicality, I agree with the law. Large-scale pirates (read: not your
typical file-sharer) *should* be punished, at least in my opinion. But I have
two issues.

First, that quote breaks down into two distinct portions: 1) "all
intentional infringements of an intellectual property right on a commercial
scale". OK, sounds good for the most part (see second point below). 2)
"and attempting, aiding or abetting and inciting such infringements".
OK, first, I can't logically parse that. Don't use the words "or"
*and* "and" in the same sentence fragment like that. They don't mix.
Do they mean "attempting, aiding, abetting, and inciting", or do they
mean "attempting, (aiding or abetting), and inciting" (which would be
the same as the first way), or do they mean ( (attempting, aiding, or abetting)
and (inciting) ), meaning you must either attempt, aid, or abet, *and* incite
(if you only do one, you don't qualify)? It's a minor issue, but laws should be
written so as to be perfectly understandable without any room for
misinterpretation. But my big point with that segment of the quote is the
"xxx of such infringements". So do they mean that inciting
intentional infringements will be treated as a criminal offense, or only
inciting intentional infringement on a commercial scale? It's not clear what
they mean.

Second, what's the definition of "commercial scale"? If we want to
make laws, then those laws should be completely spelled out with no wiggle room
and no possible misinterpretations. Court cases and contracts need everything
written out in minute detail. Shouldn't the laws be held to the same standard?
When you leave in vague wording like that, it's a pain for everyone, not least
of all for the courts who now must try to interpret what the lawmakers
intended.

cmc

[ Reply to This | # ]

Stupid question
Authored by: cmc on Monday, August 01 2005 @ 07:20 PM EDT
"The infringement must be intentional, that is to say that the act must be
deliberate, whether it is an actual infringement, an attempt at infringement, or
aiding and abetting or inciting such an offence."

I understand the "actual infringement", and I understand the
"aiding and abetting or inciting such an offence". But how do you
*attempt* to infringe something? Either you infringe or you don't. Can someone
explain to me how you can attempt to infringe without actually infringing? Or
is this a way to give IP holders tremendously great power to strike down any and
all possible competition? "Yes, your honor, they *attempted* to infringe
our product, but then they changed their product so that it doesn't infringe,
but they *attempted* to infringe (because their product is similar to our
product, so they're criminals!" I foresee that "attempt" clause
being widely abused unless it's clearly defined.

cmc

[ Reply to This | # ]

New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Anonymous on Monday, August 01 2005 @ 07:31 PM EDT
It is hardly rocket science to see that there is a conspiracy at work to extend
these monopolies. You will see pretty much similar wording in bilateral FTAs
that the US has been striking recently - eg Australia.

It will be coupled with a presumption against innocence with the defendant
bearing the burden of showing the infringement was not intentional (the AU
provisions are concentrated doublespeak). Apply this to the average person
seeking to distribution a Linux distribution and the risks will become
ridiculous.

See:
http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/chapter_17.html
In particular the "commercial includes non commercial" clause in
26(a)(i) - commercial includes no direct or indirect motivation for financial
gain.


The message is simple, get politically active pretty fast or the world as you
know it will end.

[ Reply to This | # ]

First Major Defendent
Authored by: overshoot on Monday, August 01 2005 @ 07:45 PM EDT
Steve Ballmer, although he might be able to pass the blame to his Chief Software
Architect. Based on the company's track record so far, they're the largest
"commercial scale" infringer of "intellectual property" on the planet, so it's
hard to make any case but that it goes all the way to the top.

[ Reply to This | # ]

Don't forget this swings both ways
Authored by: Anonymous on Monday, August 01 2005 @ 07:48 PM EDT
For example, in SCO's case - surely their media shenanigans repudiating the GPL
etc. were an attempted copyright infringement on a commercial scale?

Similarly, this law would mean criminal charges could be bought against the guys
behind CherryOS etc.




[ Reply to This | # ]

New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: merodach on Monday, August 01 2005 @ 08:15 PM EDT
But Paul Stevens, a partner at Olswang, said it was unlikely that software users would be affected by the directive, as any company that pursues criminal cases against users is likely to suffer from the bad publicity.

"It's not that often that companies who have IP rights pursue cases against users," he said. "Most IP owners want you to continue buying their product and to continue dealing with them. If they started threatening someone with prison or a criminal record, how do you think their customers will feel?"

I'd like to ask Mr. Stevens for his opinion about the poor guy who recently talked about the flaw in the Cisco routers IOS. Or about the guy from a few years ago that Adobe went after for telling the world about the eBook security flaw. while neither case involved mass infringement in both cases corporations used government agents to harrass and hound the person who exposed a vulnerability. Article three would codify this absurd and abusive corporate behaviour:

It also covers attempting, aiding or abetting and inciting such offences.

It hardly takes any stretch of the imagination to see corporations salivating at going after people who publicize security vulnerabilities as "inciting", "aiding", and "abetting" all to preserve the millions/billions/trillions of dollars spent in a carefully orchestrated marketing campaign.

[ Reply to This | # ]

SCO's DOS attacks
Authored by: Anonymous on Monday, August 01 2005 @ 08:24 PM EDT
PJ, you keep on referring to SCO's claim that their website was subjected to a denial of service attack by linux supporters, as though it was a malicious lie.

Although their claim proved to be erroneous on this occasion, some of us manage to remember that on a previous occasion, Eric S. Raymond acknowledged that it was a member of the linux community who was responsible for the DOS attack.

In light of this fact, it doesn't seem unreasonable for SCO to assume that subsequent dos attacks would also come from a similar source. The fact that their assumption happened to be an error on this occasion makes their allegation incorrect, but it doesn't make it unreasonable, given the previous history of DOS on their website.

After all, if SCO can't trust the word of ESR, who *can* they trust?

[ Reply to This | # ]

So they'll build the Tin Tin bastille for child copyright offenders.
Authored by: kawabago on Monday, August 01 2005 @ 08:48 PM EDT
Who would have thought that in 2005 you run the risk of going to jail for
listening to music or reading a book. Where is the world going and how can I
get off?



---
TTFN

[ Reply to This | # ]

Would this mean Jail time for Ballmer & Gates
Authored by: Ed Freesmeyer on Monday, August 01 2005 @ 08:56 PM EDT
the next time the M$ monopoly goes to court and discovery finds that the M$
source code contains someone else's patented ideas ?

For that matter, would this mean Jail time for the head(s) of the European
Government for the above patent violation concerning European currency ?

How rediculous does this have to get before someone declares "enough is
enough !" ?

Ed


[ Reply to This | # ]

Sounds Like they Are Making EU Law Like US Copyright Law
Authored by: Anonymous on Monday, August 01 2005 @ 09:47 PM EDT
A similar provision already exists under US Copyright law:

"Any person who infringes a copyright willfully either (1) for purposes of
commercial advantage or private financial gain, or (2) by reproduction or
distribution, including by electronic means, during any 180-day period, of 1 or
more copies or phonorecords of 1 or more copyrighted works, which have a total
retail value of more than $1000, shall be punished as provided under section
2319 of title 18 United States Code." 17 USC 506.

So why didn't SCO bring a criminal case against IBM? Well, in the U.S.
individuals and companies cannot bring criminal cases. The local United States
Attorney decides who to prosecute. SCO would have to convince a U.S. Attorney
to bring a criminal case against IBM, and U.S. Attorneys generally require you
to provide them with the evidence that SCO can't seem to produce - plus, they
need to be convinced that your case is worth their spending their time and
resources to pursue.

Although I am ignorant of European Union law, I would expect that your average
Joe (or your average Juergen) can't walk into court and file a criminal case.
They have to convince the local prosecutor that it is a good use of his or her
time and resources to prosecute the case.

Now, this doesn't mean that this law is a good idea or that an over-zealous
prosecutor won't try to bring unwarranted criminal cases, but the rhetoric about
SCO-like companies filing criminal lawsuits is probably overblown, unless
European criminal practice is radically different than US practice.

[ Reply to This | # ]

New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Anonymous on Monday, August 01 2005 @ 10:49 PM EDT
I would think copyright or trademark misuse would be largely unaffected by these
changes. All it would really do it make it easier to investigate, enforce and
punish pirating in a consistent manner across all states (which is probably a
problem in some EU states)

However in patent law it would have to open a real can of worms. It would make
illegal to write, use or distribute software that contains any patented
technology (pretty much all software these days) for commercial purposes.

That effectively would mean that I and my employer would potentially face
criminal charges were a software patent ever upheld against us. The question is
does internation IP include US IP.

How awsome would that be.

[ Reply to This | # ]

Who would sue their customers?
Authored by: Anonymous on Tuesday, August 02 2005 @ 12:05 AM EDT
Not too long ago, this year infact, a story hit the AP about David Zamos, a
college kid doing his Chemistry major. He was sued by Microsoft for allegedly
pirating, yet all he was actually guilty of was selling two legal unopened
copiesof Microsoft software on ebay after he was refused a refund by the school
store (who sold it to him) and Microsoft itself. He fought back, and sent MS'
lawyers on the run. And, he isnt the only one who is sued by MS, but he is the
only one who has thus far been known to have fought back (and won).

[ Reply to This | # ]

Who'd be crazy enough? RIAA (n/t)
Authored by: Anonymous on Tuesday, August 02 2005 @ 12:10 AM EDT
Who'd be crazy enough? RIAA (n/t)

[ Reply to This | # ]

Whooda thunk it? SCOG's good for something after all...
Authored by: Anonymous on Tuesday, August 02 2005 @ 01:26 AM EDT
Which is, providing a shining counterexample to those who say that companies
don't want to sue end users....

bkd

[ Reply to This | # ]

Think of the BSA as a "victim"
Authored by: Tweeker on Tuesday, August 02 2005 @ 01:44 AM EDT
Look at some of the investigations the BSA and other such "victims"
have helped police with in the past. Isnt adding the possibility of 4 years in
prison to thier powers a lovely idea. If a business didnt have an incentive to
stay the hell away from any IP where they have to track licenses etc, they sure
will if this passes. A business's violations would constitute "copywrite
infringement on a commercial scale" would they not? If this law is really
about stopping large scale commercial pirates it could be written much more
narrowly, and maybe more people would even believe thats whats its really
about.

"Harmonization" is invariably about strengthening whatever law
throughout to the same draconian standard, and not so much about consistancy in
current law. The root word here being "harm".

[ Reply to This | # ]

Other languages?
Authored by: Anonymous on Tuesday, August 02 2005 @ 02:31 AM EDT
I find the EU web pages to be horribly difficult to navigate. Does anyone know
where to find this document in other languages? In my case, I would much
prefer to read it in Swedish.

[ Reply to This | # ]

  • Other languages? - Authored by: Anonymous on Tuesday, August 02 2005 @ 07:39 AM EDT
Restricted prosecution rights?
Authored by: Anonymous on Tuesday, August 02 2005 @ 03:01 AM EDT
At least in the UK, such laws are sometimes drafted so the attorney-general has
either sole prosecuting rights, or the absoulute right to take over a private
prosecution.

[ Reply to This | # ]

EU directive + criminal scope => red herring
Authored by: domQ on Tuesday, August 02 2005 @ 04:00 AM EDT
IANAL, but I'm an undergrad law student (2nd year). And what they teach us is that each states' criminal jurisdiction is one of the most strongly guarded items of sovereignity among member states of the EU. What kind of a sovereign state are you if you have no borders, no mint, no authority over corporations on your soil, and cannot even prosecute your citizens to your own law? Given the current climate re: EU constitution or lack thereof, this is unlikely to change any time soon.

What does it mean? Well, even if a law such as the proposal discussed here is enacted, no member state of the EU will give a popcorn about it. Member states will judge as they please, denying res adjudicata authority to the EU courts' judgements as they always have (in criminal matters and in France, at least). Member states (not the judges) will subsequently be fined symbolic amounts by the EU courts, but the ``IP offenders'' themselves will walk away free from the courtroom if the state's jurisdiction so decides.

This is red herring. The fight is elsewhere (in the various EU's national jurisdictions, where the already enacted situation is often worse than the proposal discussed here).

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Perspective required
Authored by: Anonymous on Tuesday, August 02 2005 @ 04:59 AM EDT
The sky is not falling.

This is one of those areas where you need hard law and sensible judges.

Some years ago, when I was young and foolish, I visited Cyprus (not then in the
EU, of course) I found a marvellous shop, which sold litre bottles of famous
name perfumes, and racks full of CDs, all at ridiculous prices.

Well, I didn't use perfume, even then (I gave up using patchouli at 23), but I
did buy a worst of Jefferson Airplane compilation. (Bad boy.)

Now, of course, I know better, and wouldn't have been taken by a rubbish
recording that finished halfway through a track. Criminal sanctions for selling
stuff like that may be harsh, but it was a rip-off, both of me and the
copyright/trademark holders.

Where you need the criminal sanctions is where the stuff is dangerous - selling
perfume may be marginal, but the point is you don't know what is in the fake
stuff.

OK, the worst you can probably get from bad perfume is a lost boyfriend and a
nasty rash from an allergic reaction; but scams with aircraft spares have
happened as well. That's an area where you don't want poor quality stuff
masquerading as the real McCoy.

That's why you need sensible judges backed up by a hard law. The aircraft spares
scamster needs lost key syndrome. The perfume guy can be fined; anyone caught
selling Jefferson Airplane CDs needs sympathy and a helping hand.

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Don't need to be a bad thing
Authored by: Uraeus on Tuesday, August 02 2005 @ 05:52 AM EDT
In Norway IP infringement have always been criminal law afaik. And it works out
quite well in many cases. First of all it means that SCO etc., can't take you to
court. Only the police have the right to do that in a criminal case. They have
to report you to the police and then its up to the police to investigate and
decide if a crime have actually taken place and if they think it have, the
police have to decide to take the case to court. The police actually then acts
as a filter in many ways.

It also means you have the right to legal support like any defendant in a
criminal case, which is another advantage compared to civil law where you can't
demand that government pays your legal cost.

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Well we had better do our best to remember.
Authored by: Anonymous on Tuesday, August 02 2005 @ 07:18 AM EDT
Sklyarov. Nothing more needs to be said.
CrazyEnginner

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Possible collision with constitutional rights
Authored by: Anonymous on Tuesday, August 02 2005 @ 07:42 AM EDT
Note the law includes jail time for aiding or encouraging. I can see it now. Richard Stallman in the klink.

If such laws are worded too broadly, there may be a conflict with fundamental civil rights. A case in point was the recent verdict by the german Bundesverfassungsgericht, which revoked the german law about extraditions to other EU states.
An outright conflict with the relevant EU directive was avoided in this case, because the court also pointed out some leeway in the directive that could be used to bring the law in line with the constitution. But for now, the law is invalid and the Bundestag will have to restart its legislation.

FYI: The Bundesverfassungsgericht is a special court that only hears cases where the constitution may be violated. In that capacity, it is similar to the US Supreme Court.

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New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: blacklight on Tuesday, August 02 2005 @ 11:12 AM EDT
"But Paul Stevens, a partner at Olswang, said it was unlikely that software
users would be affected by the directive, as any company that pursues criminal
cases against users is likely to suffer from the bad publicity"

Why would I want to base the defense of my freedom on wishful thinking - the
kind of wishful thinking that Paul Stevens is exhibiting?

The law is meant to be a weapon everybody can use, including the bad guys. Bad
guys do have a built-in advantage: they can pick their target, they get to plan
their ambush, and they get to shoot first. And we won't know what they are up to
until their bullets start flying.

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Conspiracy
Authored by: Anonymous on Tuesday, August 02 2005 @ 11:19 AM EDT
Couldn't criminal copyright infringement be tried as some sort of conspriacy? Or
is collaborating to do wrong only an issue if the offense is already criminal?
Just asking.

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Don't think users --- think distributors
Authored by: Anonymous on Tuesday, August 02 2005 @ 11:34 AM EDT
I can see this being used not against end users but rather as legal leverage against distributors. Wouldn't M$ (perhaps through a proxy) just love to threaten Novell, Mandriva, RedHat, etc. with a law like this?

The big threat is that for the price of making any charges (however baseless) stick to a distributor, they get massive infringement and inducement findings for free.

This could also have a chilling effect on distribution channels' willingness to carry the product. It would also threaten business models based on bundling the victim's product, support or consulting services for the victim's product, or VAR products incorporating the product (including embedded devices or VoIP, where Linux stands to be huge). The pressure for out-of-court settlement might be tremendous, even against corporations with defensive portfolios such as IBM or Novell.

But so far, thankfully, this is just a proposed law. Also, as the fiaSCO has shown, Linux is darn clean. Still, with all the other stuff that's bundled with a typical distribution someone, somewhere, might find a molehill they think they can make look like a mountain. Even if the effort ultimately fails, the resulting FUD in the market may be strategically valuable to certain well-funded companies.

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New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Anonymous on Tuesday, August 02 2005 @ 11:48 AM EDT
Why is SCO the focus of this, just about any software company could be sued as
well, not just open source. SCO has not backed any of its claims, and if such
law(s) would give SCO power, then here in the USA, SCO should have already
stopped IBM and open source as well long ago. Does SCO have something to show in
the EU that they have not shown in the USA to prove its claim of IP ?.


Opinion: In the EU, if 648, did not vote to allow USA style patents, why would
they allow law(s) that mirror patents. Patents or laws, both if wrong could
destroy smb and sme all over the EU. There is little reason to burn your own
house down to keep people out of the yard and off the grass.

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Fixing the Problem
Authored by: Anonymous on Tuesday, August 02 2005 @ 11:54 AM EDT
The big problem with this sort of law is that there is little incentive for
potential abusers to refrain. The simple fix is to add those 'incentives' to
the criminal statute. To wit:

(1) make the filing of a false allegation under this proposed statute a
separate crime with reciprocal punishment for both the corporation, and the
individuals who signed the allegation (and the responsible supervisors/CEO/legal
officers(?). Reciprocal meaning if the allegation carried jail time, the so
would a false allegation. Define 'false' to be a rebutable presumption against
the accuser if the accused is found not guilty by the judge/jury. (Does anybody
in Europe use juries other than the Brits?)

(2) Give the acquitted defendent a right to recover legal costs from the accuser
(not the prosecuting government) unless the judge finds that not to be in the
interests of justice.

If you want to get fancy, allow for a 'scots verdict' when the allegation is
creditable/reasonable etc. but without enough evidence to get beyond a
reasonable doubt.

JG

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New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Hop on Tuesday, August 02 2005 @ 12:20 PM EDT
"But Paul Stevens, a partner at Olswang, said it was unlikely that software
users would be affected by the directive, as any company that pursues criminal
cases against users is likely to suffer from the bad publicity."

And Paul Stevens is naive. Always assume if it's the law, somebody will use it
to pursue end users. Who would have thought the RIAA would go after individual
users for file sharing? Did they get bad publicity? Of course they did, but they
didn't care and it did not stop them.

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This law is GREAT! It makes OSS so much less of a liability than copyrighted software
Authored by: Anonymous on Tuesday, August 02 2005 @ 01:11 PM EDT
This law is GREAT for OSS!

The potential liabilities with non OSS will
increase tremendously with this law.

The only rational response to this law is
minimize or completely ban copyrighted software
in the enterprise and the home.

What CEO would rationally want to take on
the liability of copyrighted software when
liability free software is available?

Think in terms of microeconomics,
This really piles on the cost of copyrighted software.

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Can't sue in criminal court
Authored by: Anonymous on Tuesday, August 02 2005 @ 03:42 PM EDT
IANAL, but the following from the article is so obviously
wrong, I was shocked: "Several lawyers are already
pointing out that actors like SCO would have a field day
with such a law, because they could sue Linux end users in
criminal court".

Only the state can bring criminal charges. Individuals and
businesses can make complaints to the police, and that's
all. All lawsuits are by definition in civil court, not
criminal court. I'm kind of worried about any lawyer that
does not know such a basic fact.

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Government taking sides
Authored by: Anonymous on Tuesday, August 02 2005 @ 04:32 PM EDT

This law is wrong, because criminal law is not appropriate for a situation which has traditionally been dealt with by civil litigation.

Criminal law is for things which must be enforced in order to keep the peace - the government must prevent violence, looting, etc; or for things which present a risk of damage rather than actual damage - traffic laws, etc. It is not for helping large corporations to construct a "moat" around their business models. But that's what this law is doing.

We should be told who started the idea of this law. Citizens' groups? I don't think so. Highly-paid lobbyists of some megacorporation?

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New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Anonymous on Tuesday, August 02 2005 @ 04:50 PM EDT
If you put someone in jail, they will not be able to earn the money to pay the
IP holder the cash they would presumably win in civil court.
Worse, the IP holder's taxes will be increased to pay for food and water for the
jailbird.
So, bad law.

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  • But.... - Authored by: tiger99 on Tuesday, August 02 2005 @ 07:27 PM EDT
    • But.... - Authored by: Anonymous on Wednesday, August 03 2005 @ 01:20 AM EDT
Purpose of criminal sanctions - was New EU Law Proposed - Criminal Sanctions for IP Infringement
Authored by: Brendan Scott on Tuesday, August 02 2005 @ 07:49 PM EDT
The purpose of making copyright infringement a criminal offence, or expanding
the scope of what is criminal, is to shift copyright enforcement costs away from
the copyright holder (who pays for them in civil trials - and it is ridiculously
uneconomic) and onto the public (which pays in criminal trials). [Some
infringements are already criminal offences.]


In practice criminalisation is just a subsidy to copyright litigants. If you
don't tend to be in the business of this litigation, then it is generally a bad
thing.


Brendan

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sco bankruptcy
Authored by: Anonymous on Tuesday, August 02 2005 @ 10:29 PM EDT
check out lamlaw.com, August 1, for what happens if SC0 declares bankruptcy.

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  • Link - Authored by: Anonymous on Wednesday, August 03 2005 @ 12:07 AM EDT
The cure for bad IP law (IMHO)
Authored by: inode_buddha on Wednesday, August 03 2005 @ 12:26 AM EDT
The cure for bad IP law (IMHO), is to start *enforcing* it. There was a fellow
in Oz that patented the wheel ("circular transportation facilitation
device") some years back, IIRC. You should see the look on people's faces
when I inform them that the "wheel" has in fact been patented.

In other words, hold them to their word wrt IP law.

What would GM do if he got a lawyer willing to take it on contingency wrt Holden
and the FTA? Maybe some treaties and laws would change real quick.

---
-inode_buddha
Copyright info in bio

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

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