This article refers to the proposed enforcement directive (aka IPRED 2). discussed previously on this list.
From edri-ip mailing list.
Teresa _______________________________________________
Europe Follows Grokster's Lead By Bruce Gain
Story location: http://www.wired.com/news/politics/0,1283,68418,00.html
02:00 AM Aug. 05, 2005 PT
Little-noticed language in a European Union plan to crack down on organized piracy could also make indirect copyright infringement a crime across Europe, with implications similar to the recent MGM v. Grokster U.S. Supreme Court ruling, experts say.
A directive being pushed by the European Commission would, among other things, criminalize "attempting, aiding or abetting and inciting" acts of copyright infringement. The EU parliament will take up the proposal later this year.
Like the Grokster ruling, the scope of the proposal (.pdf) reaches beyond the act of downloading or uploading copyright video, music or software files and makes supporting copyright infringement illegal. If the directive is adopted, software used primarily for illegal file sharing, for example, could potentially make its developers criminally liable in one or several EU member countries.
"The problem here is some activities, such as the creation of software, can be used for legal and illegal purposes, as is the case with Grokster," says Urs Gasser, professor of law at the University of St. Gallen in Switzerland and a fellow at the Berkman Center for Internet and Society at Harvard Law School. "It gets really messy, because it is unclear what is legal or not legal, and it is problematic to operate with such abstract terms."
Echoing fears voiced in the United States after the Grokster ruling, Gasser says the directive could stifle innovation, as software and IT firms may fear developing technologies that might later be adopted by pirates.
"The (proposed directive) uses vague language and unclear standards that increase or add uncertainty to (the software and IT) market that is very much in a state of flux," Gasser said.
"This market is driven by entrepreneurs dealing with tough decisions about whether to take a risk and work on an innovative product, to face (stiff) competition and to raise money for their projects," said Gasser. "So imagine a venture capitalist having a proposal on the table from a young entrepreneur outlining the features of a piece of software and immediately the lawyers would say, 'Well, here there could be a problem.'"
Uncertainty over what innovations are legal or illegal would be further confounded by different legislative interpretations of the directive among the EU member states, said Gasser. "Just within Europe you would have to care about many different standards and about what they exactly mean, and what 'inducing' and 'inciting' exactly mean," Gasser said.
A software firm, for example, could be in a messy legal situation after designing tools that allow file sharing between only 10 people, Gasser said. "You may have intended for the software to share files within a company, but later (copyright) movies are exchanged," Gasser said. "Would you want to put money in such a firm?"
However, Thomas Dillon, the Motion Picture Association's anti-piracy legal counsel for Europe, the Middle East and Africa, contends that the provision criminalizing indirect acts of copyright infringement is a mere "footnote" in the European Commission's proposal.
"The armory of the directive is that they have gathered together the different ideas of the member states of how you impose remedies, which are not uniform across the union," Dillon said.
"In the Grokster case, if the intention is plainly to encourage people (to infringe copyrights), then they would be guilty," said Dillon. "In European countries where the activity of the user is a criminal offense, then if you deliberately set out to encourage people to do that and provide them with the means to do that, then I would have thought that in most countries you would find yourself liable."
The directive actually goes further than the U.S. ruling, in that it makes indirect copyright infringement a crime, while Grokster was a civil case.
The European Commission proposal would also set the maximum criminal penalty for piracy by a "criminal organization" to four years in prison and a 300,000-euro fine. Additionally, it seeks to address disparities in anti-piracy criminal penalties across Europe by obliging different EU member countries to draft uniform maximum prison sentences into their sentencing guidelines.
According to the international recording industry, the proposed criminal sanctions do not go far enough.
"The (proposals) contain some useful elements, such as increased maximum fines and enhanced cooperation, but overall there is not much added value to existing national legislation," said a representative for the International Federation of Phonographic Industries. "Most EU member states already have maximum prison sentences for intellectual property offenses that are higher than the four years proposed by the commission. The proposals also fail to tackle a key problem for the creative industries -- the failure of courts when applying the law to impose truly deterrent sentences."
However, if adopted, the directive could help facilitate the task of a U.S. firm seeking to prosecute a company or individual for indirectly infringing on its copyright in Europe. As it stands now, it would be difficult for a U.S. plaintiff to sue someone in Europe by using the Grokster ruling.
A programmer who wrote software in a European member state, for example, might be liable under Grokster if the program was created for the sole purpose if inducing and promoting illegal downloads, and most of the acts of infringement take place within a U.S. jurisdiction. But pressing a trans-Atlantic lawsuit would still pose problems for copyright owners, especially when it comes to the physical act of serving someone with process, which must be done in person.
"One of the problems you have with a lot of internet cases is finding the defendant," said attorney Don Conwell, former chair of the Computer and Internet Committee for the American Bar Association and head of the computer law practice group at the law firm of Fowler White Boggs Banker. "Sometimes they can be mom-and-pop shops. And it will be difficult to find them without the rules of discovery in the U.S."
Meanwhile, U.S. courts will likely soon decide the boundaries of Grokster, while the Europeans ponder their definition of what indirect copyright infringement means -- a particularly daunting task when it comes to technology used for both legal and illegal purposes.
For his part, Gasser supports the European Commission's overall intentions to legislate criminal sanctions against large-scale and commercial-grade copyright violations for profit. What is needed, he said, are more precise definitions of what is legal and illegal, especially when it comes to the software and IT fields. "I think we need to decide what 'commercial scale' means and to find wording that is much more specific," said Gasser.