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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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August 4, 2005

Piss Off SCO, Go to Jail? (in Europe)

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Posted by Alan Wexelblat

Is it just me or is this completely insane? The European Commission has (last month) proposed a directive that would make wilfull intellectual property infringement a criminal offense. Not civil. Jail time. Seizure of goods. A ban on engaging in commercial activities. Denial of access to legal aid (that last is particularly chilling, to me).

I feel like I've fallen through the proverbial Looking Glass here, into a world where mental concepts are accorded the same (or greater) status than actual physical objects. I can't even begin to understand the thinking behind this. For pete's sakes, people it's only ones and zeros!

Comments (8) + TrackBacks (0) | Category: Laws and Regulations


1. Joe Gratz on August 4, 2005 6:58 PM writes...

Imagine if the United States had such a law!

Permalink to Comment

2. Andrea Glorioso on August 5, 2005 7:31 AM writes...

It should be noticed that the theoretical concerns this Directive builds upon - i.e. counterfeit pharmaceutical goods, for one - call for penal responses.

Then, of course, the lobbying power of various entertanment industries have turned a good proposition into a potential terrible scenario.

The fact that the "rapporteur" of the Intellectual Property Rights Enforcement Directive (IPRED), which was meant to contain the provisions of *this* directive originally, was the wife of Vivendi's CEO casts an "interesting" light on the whole European law-making process.

There is a strong need to publicize this Directive, which is not as "sexy" as the proposal on computer implemented inventions (aka software patents) but is nevertheless at least as dangeours.

Thanks for your help in doing that.

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3. pmp on August 5, 2005 10:00 AM writes...

Alex, I'm not sure why you're acting like this is such a huge change. The US has had criminal penalties for willful copyright infringement, in some form or another, for about a century. And the TRIPS agreement requires all signatory states to provide criminal penalties for willful infringement on a commercial scale. (For example, US law criminalizes intentional trafficking in counterfeit goods -- for profit or in the expectation of anything of value; and willful copyright infringement when it's either done for profit or is above a certain threshold amount). You may not like it, but this is really nothing new.

The things that *might* be new, or unusual, or worrisome about the new EU directive are that it would appear to include patent infringement (for which the US -- probably wisely -- avoids trying to impose criminal penalties). There also seems to be some conflation of the terms "willful" and "intentional," which in the US are different mental states (willfulness being a more stringent standard). This may be a result of different European legal usage of these terms (or it could just be sloppiness -- who knows?)

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4. Branko Collin on August 5, 2005 10:35 AM writes...

The Vrijschrift foundation has a number of (English language) mailing lists for copyfighters. You can find them at
"Copyright" is a general mailing list for discussion on copyright reform, "IPRED" is for the analysis of this particular directive.

Permalink to Comment

5. anon on August 5, 2005 12:51 PM writes...

The original post captures why it's so hard to take this site seriously as a place for IP news and legal analysis. The post demonstrates:

1) A complete ignorance of the current state of the law. Its premise is that imposition of criminal penalties for willful infringement of IP rights is something new and radical. Of course, this isn't so. As the commenter above notes, American law has long imposed criminal penalties for willful infringement under certain circumstances.

2) A lack of actual research. It paraphrases a news story, which itself does not even quote any actual language from the proposed EU directive. After reading the post (and the news story), I still have no idea what's in the actual directive. I was particularly skeptical, for example, of the phrase "denial of access to legal aid," which sounds really scary, like possibly that the defendant is forbidden from having a laqwyer. I looked at the actual text of the directive and could find nothing about "denial of access to legal aid." The closest is a proposal that guilty parties face "a ban on access to public assistance or subsidies." Barring public subsidies to a firm found guilty of criminal copyright infringement? Sounds pretty reasonable to me.

3) Hysterical language, and a complete failure to consider opposing views. Differing views must be "completely insane." Not just wrong, or misinformed, or incorrect, or misguided, but "completely insane." Anyone who favors this EU proposal must have "fallen through the proverbial Looking Glass." (Remember, that's the land where verdict comes before trial.) Of course, there is no discussion of why some people favor this rule, or what the existing EU laws are on criminal infringement, and how this proposal would change them. Is it really the case that there is currently no such thing as criminal copyright infringement in the EU? I'd like to know that -- but certainly wouldn't learn it here.

Lastly, as to your original question: "Is it just me or is this completely insane?" I think the answer is pretty clear.

Permalink to Comment

6. Crosbie Fitch on August 7, 2005 5:08 AM writes...

The insanity here is best understood by comparing the situation to a few hundred years ago when we had a similar schism between flat-earthers and round-earthers. Each thought the other insane.

However, again, those who understand the evidence and science, realise that the inevitable needs no support, that the only task at hand is to cushion the eventual blow to the flat-earthers.

One still rails in frustration against laws based on a flat earth, or maps being continously adjusted due to conflicting findings.

And yup, the flat-earthers thought the round-earthers were arrogant bastards. ;-)

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7. Brad Hutchings on August 7, 2005 8:00 PM writes...

Alan, It doesn't look like you bothered to RTFD (directive). The author of the CNET article seems to have a bit of confusion about the term "commercial scale". Makes a great strawman though! Gotta hand it to you. It's some of your best work.

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8. Branko Collin on August 9, 2005 11:38 AM writes...

"Of course, this isn't so."

Well, if the E.U. want to criminalize something that is already criminalized, the assesment that this is "completely insane" is perhaps not as far off as it might originally seem.

I agree with your point though that more care could be taken by actually reading the directive (and by understanding what directives and the E.U. are supposedly about).

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