[Fsfe-ie] Draft letter on IPRED2

Ciaran O'Riordan ciaran at fsfe.org
Wed Aug 24 16:45:06 CEST 2005

Ok, here's something from myself and Malcolm:

First reading is still probably 6 months away.  Right now it's just at the
"first draft published by European Commission" stage.

The European Commission has recently published a draft for a directive
"on criminal measures aimed at ensuring the enforcement of
intellectual property rights", COM 2005(276).

The justification is that "counterfeiting and piracy ...  [appear] to
be increasingly linked to organised crime."

The directive cites Article 17(2) of the Charter of Fundamental Rights
which states that "Intellectual property shall be protected", however
the Commission's text throws Articles 48 and 49 of that Charter out
the window (Presumption of innocence, and proportionality of

(maybe these two paragraphs should be deleted)
Irish Free Software Organisation therefore proposes that the
Commission's text be modified to agree with their justifications:
The criminal measures, which are currently meaninglessly limited to
"appropriate circumstances", should be more concretely limited to
"when done to support organised crime".

We feel that such a limit is necessary to avoid significant dangers to
legitimate European life and industry.

Why is a Free Software organisation concerned?

Free Software has huge social benefits, but it is sometimes vulnerable
to attack by disingenuous uses of intellectual property law. As Free
Software continues to takes up an increasing amount of the market
share of other players in the software market, we are seeing that
rather than compete based on value to the customer, distributors of
proprietary software are looking for legal barricades and scare
tactics to prevent the adoption of free software.

One clear example is the SCO case in the USA.

SCO has accused IBM of mixing some SCO-owned code into the kernel of
the GNU/Linux operating system and is claiming that all users of
GNU/Linux have to pay licensing fees to SCO.

This case has been going on for years and many distributors of
GNU/Linux have be dragged into it.  The Free Software Foundation has
had it's time wasted by broad subpoenas.

Despite it's numerous appearances in court, SCO has yet to be proven
right on even one single claim it has made.

The interesting thing is that SCO is funded by Microsoft - the makers
of Microsoft Windows, whose closest rival is: GNU/Linux.

Another leaked memo, the authenticity of which has been confirmed by
Blake Stowell of SCO, revealed that SCO received funding of more than
$100 million from Microsoft!

An internal memo[2] describing SCO's own investigation of the matter
said that they "had found absolutely *nothing*. ie no evidence of any
copyright infringement whatsoever".  That memo was written in 2002,
but SCO continued it's smear campaign and legal wranglings against
free software businesses.

Now, trying to prevent organised crime is a good goal, but when rights
holders are given extreme powers of investigation and the ability to
threaten with jail time: who are the organised criminals?  The
companies selling GNU/Linux and related services?  Or the company that
is sueing people despite knowing it doesn't have a case?

The current text allows:

=========has to be reviewed & rewritten====================
Copied verbatim from: http://www.ffii.org.uk/ip_enforce/ipred.html
> * 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).

> 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
> disputes.
> 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.

I think I've eaten the references to these, but here are Malcolms
original cites:
[2] http://www.groklaw.net/pdf/IBM-459-22.pdf
[3] http://www.opensource.org/halloween/halloween10.html
[4] http://www.eweek.com/article2/0,1759,1542915,00.asp


Ciarán O'Riordan,                               |  Support FSFE's work against
http://www.compsoc.com/~coriordan/              | software patents by becoming
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