[freenet-chat] End of days was [jmaebe at ffii.org: [ffii] EU Commission proposes to criminalise European software industry]

Wed Jun 28 13:00:36 UTC 2006

Anyone in Europe, please write to your MEPs, or I'll have to move to the
USA when this gets implemented!

"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."

It then goes on to outline a range of penalties from imprisonment to
winding up of businesses, bans on commercial activity, denial of future
state aid etc.

Given that "commercial scale" is not defined, it can be assumed to mean
"depriving someone of potential income". And "intentional" does not
necessarily mean that the person is aware of the software patents he is
infringing (for example); it could be interpreted to mean that they are
simply writing software intentionally.

It goes on to require that rightsholders can be involved in criminal
investigations, and that the police are required to investigate even if
they don't receive a complaint from the rightsholder.

This would criminalize filesharing by the back door. It would also
criminalize software development in general by forcing every software
developer (apart from the really large companies who have patent
thickets) to on demand fight all the trivial software patents their
software infringes on. The effect of this would be the 'judicial winding
up' of the European software industry.

Worse even than that, the task of eliminating all software SMEs would be
given to the police, who generally speaking don't care about such
matters. They would have to set up dedicated agencies for this, whose
task is largely to eliminate honest businessmen trying to make an honest
living, drive down employment, and generally undermine a large part of
the economy. This would discredit criminal law and the police, and make
major IP owners effectively a part of the criminal process.

The Commission's justifications for the legislation have very little to
do with its actual effect: copyright infringement (piracy) and trademark
infringement (counterfeiting) are already criminal matters. Selling
unlicensed drugs/toys/tools are also criminal matters. The 'health and
safety' angle is simply a smokescreen.

Finally, yes it would criminalize my work on Freenet. Freenet is an
anonymous filesharing system designed to resist censorship. It is
intended to provide freedom of speech in despotic regimes where the
internet is filtered and monitored. It is however developed in the West
for obvious reasons. Since it is designed to resist censorship, it will
inevitably be used for violating intellectual property rights. This is
aiding and abetting, and possibly inciting, certainly on a commercial
scale, and probably 'intentional' by the reasoning above. Given this
nonsense, and given the recent moves towards internet censorship at a
national level [1], it seems that Freenet will be needed, and will be
illegal, in the west in the next few years! I am happy to pass on the
torch when this occurs, to those who will have to develop and use it
without the benefit of operating in the light - being able to employ
developers, have public beta tests etc. And I will have to go find a new
career. Because I'm not going to work for the parasites who were behind
the whole software patents mess, who will be the only IT players to
survive the latest round!

[1] Italy requires ISPs to block access to a proscribed list of gambling
websites. The situation in the UK is more subversive: The government has
a target that all UK ISPs will block Cleanfeed's list of child porn sites
by the end of 2007. This means they are no longer common carriers, since
this is not a legally binding obligation and since the IWF is a private
company. This further means that ISPs will be liable to block any and
all illegal websites - including those which are illegal because of
libel, copyright infringement, and so on. Sites such as xenu.org, which
while they are in the clear public interest are visited by few of the
ISP's customers and therefore will not be defended in an expensive legal
battle by the ISP - and which have been the subject of threatening
letters and sometimes litigation on many occasions in the past. I have
written to my MP about this and expect a reply from the junior minister
at some point.

----- Forwarded message from Jonas Maebe <jmaebe at ffii.org> -----

From: Jonas Maebe <jmaebe at ffii.org>
To: news at ffii.org
Subject: [ffii] EU Commission proposes to criminalise European software
	industry

PRESS RELEASE -- [ Europe / Economy / ICT ]

=========================================================================
EU Commission proposes to criminalise European software industry
=========================================================================

Brussels, 12 May 2005. The Commission's recently relaunched "Enforcement
Directive" (IPRED2, 2005/0127 (COD)) proposal aims to criminalise all
intentional and commercial IP infringements in order to "combat
organised crime" and to "protect national economies and governments".
This however results in the Commission exceeding its competence and is
criminalising many EU businesses with unjustified and ill-conceived
measures.

A company may infringe on a patent if it thinks the patent would not
stand up in court. This is common business practice, in particular in
the software industry where most patents are granted on insufficient
legal grounds. And while Commission is seeking to criminalise this
practice, the US is reconsidering its "treble damages" policy in such
cases precisely because of widespread abuse.

Jonas Maebe, FFII board member, comments: "Does the Commission really
intend to criminalise Europe's entire software industry? Can it name
even one computer program which does not infringe on a single patent
granted by the European Patent Office? It seems they want to replace the
Lisbon goals with an Alcatraz program."

"The EU-Commission proposed means which divert law enforcement resources
and which are not well suited to combat organised crime" adds Andr?
Rebentisch, FFII WIPO representative. "Appropriate definitions for
counterfeiting and copyright piracy are already available in other EU
regulations, but here the Commission prefers rather vague terminology
which puts our knowledge economy at risk."

Ante Wessels, FFII analyst, notes: "In only 10 of the EU's 25 member
states patent infringement is a crime today. Does this lead to
distortion in trade, does it give the countries in which it is not a
crime a competitive advantage? Nobody has ever claimed such a thing.
Therefore there is no legal ground for including patent infringement in
this directive. There are 10 more IP rights for which this question has
to be answered."

Pieter Hintjens, FFII President, concludes: "We're very concerned when
we see IP enforcement being idolized like this, regardless of the
consequences. There is a huge and vital debate about whether we need
patents at all in the software industry. This law ignores that debate
and seeks to enforce those patents, labeling businessmen as common
criminals, terrorists, or mafiosi."

A full analysis is available at http://wiki.ffii.org/Ipred2060510En

=========================================================================
Background information
=========================================================================

* Patent infringements currently constitute a criminal offence in 10 of
the 25 member states. In the Netherlands the government previously
already proposed to take patent infringements out of criminal law,
exactly because in practice criminal provisions are generally unsuited
and unused for handling such issues.

* The proposal stresses that law enforcement bodies should start
investigations at their own initiative, i.e. without a complaint from
right holders. Law enforcement officials however are often unaware, and
rightly so, about private or even public licensing agreements. See e.g.
a UK Trading Standards official having a hard time believing that
companies can legally resell the freely distributable Firefox web browser:
 http://business.timesonline.co.uk/article/0,,9075-2051196,00.html

* Apart from patents, many other rights are subsumed under "IP" where
the line between infringement and non-infringement is very blurry. See
e.g. the Da Vinci Code case (copyright), or Microsoft vs MikeRoweSoft
(trademarks). Criminal law however requires very clear boundaries. Not
being able to know beforehand whether one commits a criminal offence or
not is unacceptable both morally and in terms of justice and human rights.

* In case of infringement, the right holder is usually interested in
compensation (civil law), not punishment (criminal law). Criminal law
must be reserved for criminals, otherwise it risks to lose all
authority, effectiveness and respect.

* Criminal law enforcement is paid for by the public. As Dutch Minister
of Justice Donner said: "[Commissioner] Frattini mentioned
counterfeiting a Ferrari, but isn't that Ferrari's business?". The
directive also received a lot of attention in the Netherlands because
this is the first time Brussels interferes with criminal measures
without member states having a veto. For more information, see:
 http://wiki.ffii.org/IpredDonner060428En

* Both the Dutch Minister of Justice, and Professor in Law Reto M. Hilty
(Max Planck Institute for IP) have noted that the only ground for this
directive proposal can be that it solves a distortion in trade between
member states. There are no known indications that this indeed is the
case. For more comments by Professor Hilty on this directive, see:
 http://www.ipred.org/Hilty

=========================================================================
Links
=========================================================================

* Full analysis of the text: "IPRED2: European Community goes criminal"
http://wiki.ffii.org/Ipred2060510En

* EDRI/FIPR take on the new proposal:
http://www.edri.org/edrigram/number4.9/ipcriminal

* Directive text:
English:
http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf
French: http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf
German: http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf

* Permanent link to this press release
http://wiki.ffii.org/Ipred2Pr060512En

=========================================================================
Contact Information
=========================================================================

Jonas Maebe
FFII Board Member
jmaebe at ffii.org
(Dutch/English)

Ante Wessels
FFII analyst
+31-6-100 99 063
ante at ffii.org
(Dutch/English)

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
bhenrion at ffii.org
(French/English)

=========================================================================
About the FFII -- http://www.ffii.org
=========================================================================

The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.

_______________________________________________
FFII Press Releases.
(un)subscribe via http://lists.ffii.org/mailman/listinfo/news, or contact 
media at ffii.org for more information.

----- End forwarded message -----

-- 
Matthew J Toseland - toad at amphibian.dyndns.org
Freenet Project Official Codemonkey - http://freenetproject.org/
ICTHUS - Nothing is impossible. Our Boss says so.
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