New criminal offences?: patent infringement, writing filesharing software, inciting to violate intellectual property

There is a new EU directive proposed:

"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."

Custodial sentences would be available for individuals committing such
an offence. At present, "on a commercial scale" is not defined. Fines,
confiscations, closures of establishments, permanent or temporary bans
on engaging in commercial activities, judicial supervision or winding
up, a ban on access to public assistance of subsidies (their words), and
publication of judicial decisions, will also be available in some cases.

So a sole trader who accidentally infringes the patent on the electronic
shopping cart could _actually go to prison_. Nice. Or, perhaps, be
denied access to state benefits while simultaneously being prohibited
from engaging in commercial activity (interpreted narrowly, this would
seem to mean that he can't run his own business and is doomed to be a
shop/office drone; interpreted broadly it means becoming an unperson and
joining the criminal underground). Presumably "in appropriate cases"
restricts these sanctions to where they would seem reasonable.

Proof:
http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf

Other issues with this directive:
- It will make it easier to prosecute filesharers, which presumably is a
  big part of the intention. You don't have to profit from the
  infringement, so as long as enough people downloaded an infringing
  file, that will be regarded as "on a commercial scale".
- It would seem to make it possible to prosecute authors of filesharing
  programs as "aiding... intentional infringements of an intellectual
  property right on a commercial scale". Whether this would apply to
  networks with significant noninfringing uses such as Freenet is
  uncertain. Interpreted broadly it could lead to somewhere *really*
  dark (and look at the legal drift we've seen in the patent office). A
  narrow interpretation is possible - it is already possible to sue
  filesharing networks for contributory copyright infringement, even
  in europe, but this is a civil process at present.
- Inciting IP violations on a commercial scale is almost equally
  interesting. Could be some interesting freedom of speech trials under
  that one... :|
-- 
Matthew J Toseland - toad-EI5O+8PHWbJeeLb3ft/[email protected]
Freenet Project Official Codemonkey - http://freenetproject.org/
ICTHUS - Nothing is impossible. Our Boss says so.

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