[Fsfe-ie] Europe Follows Grokster's Lead

teresahackett at eircom.net teresahackett at eircom.net
Mon Aug 8 14:17:31 CEST 2005

This article refers to the proposed enforcement directive (aka IPRED 2). 
discussed previously on this list.

 From edri-ip mailing list.


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

"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.

More information about the FSFE-IE mailing list