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

Matthew Toseland <toad@...> writes:

> 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.

--snip for gmane filter--

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

It's pretty bad in principle, and typically vague on all the important points. I
particularly dislike the way it goes on about huge organised crime
counterfitting operations, a real source of harm to society that should indeed
be addressed, then in the same breath tries to equate it to ordinary people
"pirating" things (not a legally meaningful term in this context, I'm suprised
they used it) off the 'net which has yet to be proven to hurt our media
overlords or anyone else in the slightest ... meanwhile they continue to peddle
us broken non-red book CD's for twice the price they are across the pond.

The references to needing to "protect" consumers from inferior products are
amusing in the p2p case too, since the main reason legal downloading hasn't
really took off is that the content is overpriced and considerably inferior
(DRM, often mediocre quality) to the copyright infringing alternative. Indeed
the BBC is running a story today about how ordinary consumers are discovering
the unadvertised existence of DRM in all their shiny toys and getting very
annoyed about it.

> 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".

Not really an issue other than the principle of the thing, given that in a
working freenet proving people downloaded something from your node (whatever
that even means with tunelling, checkblocks, eventual onion routing etc) should
be very hard to the point where it probably isn't worth it. And until freenet
does work, it won't have anything like the copyright infringer userbase needed
to attract RIAA/MPAA/BPI et al anyway. Personally I don't see how freenet and
other anonymous nets can ever have the speed of a non-anonymous protocol like
trackerless bittorrent for the "copyright infringement" model of use (many large
files, changing quite frequently) for the simple reason that anonymity and
efficiency are often diametrically opposed, so those networks will continue to
draw the casual warezer and provide RIAA etc with much lower hanging fruit.

The only real threat from aggressive media cartels IMO is some outfit like
Overpeer trying to flood the network with crap like they do on the conventional
big p2p nets, I know that this has been considered and can in theory be defended
against, but we don't know how hard they'll try. They're screwed on a darknet,
of course :)

> - 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.

Yeah. Again, much reference is made to organised crime, willfull/knowing
abetting of direct infringment and direct financial gain from encouraging it but
it doesn't actually _say_ that these are criteria. If they are, then it sounds a
lot like the interpretation of US law against the original Napster plus some
"OMG TEH MAFIA!!1!" scaremongering (given that such ventures are handled
adequately by existing law) and we have nothing to worry about given that
Freenet project inc. doesn't support, promote or profit from such actions and
afaik isn't organised crime :) Beyond that there's no real conclusions that can
be drawn without a formal directive submission that explains such points.

Bob


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