[Fsfe-ie] FFII Alert: New EU Directive threatens more SCO-style attacks.

James Heald j.heald at ucl.ac.uk
Thu Feb 19 15:49:51 CET 2004

FFII News -- 19 February 2004 -- For immediate release
+++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++
Please redistribute widely.


New EU Enforcement Directive threatens SCO-style attacks.

The EU Parliament's Legal Affairs committee is set to rubber stamp a new
text on Monday for the controversial EU Directive on the Enforcement of
Intellectual Property Rights, despite serious unanswered concerns from
across the EU -- including the UK House of Lords. It will have been only
six days since the final text, drafted in secret without any public
analysis of its detailed national implications, was finally released to
the European public.

In the words of one MEP speaking at a meeting in Strasbourg last week,
"This is Europe, not London.  This is how we do things here. You just
have to trust us". [1]


Originally intended as a measure to stamp down hard on organised
criminal counterfeiting and piracy, the scope of the legislation has
been widened to apply to all species of intellectual property cases --
including routine commercial disputes, and the American-style pursuit of
individual teenage internet filesharers.

Legitimate companies of all sizes are concerned about the unpredictable
effects of such an enormous increase in the availability of the
so-called "nuclear weapons" of IP enforcement law, to civil legal
disputes of all scales, and to states where they have been no part of
the legal tradition.

These include measures such as Anton Piller orders (secret court
authorisations of raids for evidence by the plaintiff's agents --
Article 8); Mareva injunctions (freezing of assets, even before a case
has been discussed in Court -- Article 10.1); new powers to demand the
disclosure of very extensive commercial and personal information
(Article 9); and the admissibility of denounciations by anonymous
witnesses as court evidence (Article 8.5).

In Europe these kinds of investigatory procedures are more usually
associated with criminal proceedings with a much higher standard of
proof, and are quite alien to the civil (non-criminal) justice systems
of most of the member states.


In June an earlier draft of the Directive was examined by a House of
Lords scrutiny committee, chaired by Lord Scott of Foscote, the Law Lord
who wrote the 1996 "Supergun" Arms to Iraq report, and who was Head of
Civil Justice in the UK from 1995 to 2000.  The committee noted that
"This is an ambitious proposal which may have far-reaching implications
for the law of most Member States", and they expressed concern that:

   * "We would welcome a detailed assessment on the compatibility of
Articles 7-9 with domestic law and the challenges they may pose for
human rights".

   * "We would like to emphasise the need for the Government to conduct
extensive consultations on this important proposal, in particular with
the Patent Judges".

   * "We request the Government to provide a Regulatory Impact
Assessment specifically directed at the implications of the proposal for
the UK".

No public assessment has yet been published on any of these points; and
the House of Lords committee has so far still declined to clear the


FFII fully supports firm action to crack down on organised
counterfeiting and piracy. But FFII is very concerned that, without
better defined safeguards, the Directive may lead to a far more
agressive, lawyer-driven legal environment for creative businesses; and
having seen how such legislation can be used in the United States, that
it may provide the means for agressive litigators holding dubious
intellectual property rights to "pull a SCO" and use the powers of the
Directive to seriously harass and potentially to inflict lasting damage
on small innovative businesses.

FFII believes that the best course would be for the directive to be
limited to its original proposed scope, namely commercially organised
recklessly intentional copyright and trademark infringement.

In particular, FFII would like to see:

   1. Disputes about patents and trade secrets/confidential information
taken out of the scope of the directive altogether. The draconian
measures being discussed are completely inappropriate for such complex

   2. The Directive should only apply where there is intent to infringe
for commercial gain on a commercial scale.  It should not apply unless
there is good evidence of recklessness or a deliberate knowing intention
to infringe.

   3. Articles 7 to 10 should even then only apply in exceptional cases.
It should be clearly stated in the Directive that they are not intended
to become automatic standard procedure in all IP disputes.

FFII also believes that to allow proper public discussion and analysis
in all the member states, the Parliament should allow at the very least
a clear month from the publication of the Council draft text (17 Feb
2004) until the final closing date for amendments.  This Directive is
simply too important to get wrong.


Membership of the House of Lords committee, with links to biogs:

Quotes about the dangers to legitimate businesses

Legislative timetable, and contact details for relevant UK MEPs

Proposed safeguards, and why FFII believes they are inadequate

Official text of the directive:

Foundation for Information Policy Research pages on the Directive


For further information, please contact:

     James Heald, UK Co-ordinator, FFII
     Chilworth Manor, Chilworth, Guildford GU4 8NL.

     (01483) 575174 / 0778910 7539
     j.heald at ffii.org.uk

The permanent URL of this press release is

[1] Mercedes Echerer MEP, speaking 11.02.2004


FFII-UK (http://www.ffii.org.uk/) is the UK volunteer group of the
Foundation for a Free Information Infrastructure (FFII), a Europe-wide
non-profit association registered in Munich.

FFII campaigns to promote competition and innovation in the field of
software development. We seek a positive environment for the development
of information goods, based on copyright, free competition, and open

More than 700 companies and 50,000 registered supporters have entrusted
the FFII to act as their public voice in the area of exclusion rights
(intellectual property) in data processing; and the FFII/Eurolinux
petition against software patents now has over 300,000 signatories.



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