[Fsfe-ie] Draft letter on IPRED2

Ciaran O'Riordan ciaran at fsfe.org
Thu Aug 25 02:11:50 CEST 2005

Here goes again:

I've re-added the references Malcolm collected which were at the end and
tidied the text up a bit.  This version is a little shorter and I've
reviewed the requests that we might make.  The last two sections "that this
directive allows" and "what we request" should be merged, IMO.  Comments
sought.  It'll be moved to the wiki when it starts to settle.

The European Commission has recently published a draft for a directive[1]
"on criminal measures aimed at ensuring the enforcement of
intellectual property rights", COM 2005(276).

There are two justifications.  The first is that "counterfeiting and piracy
...  [appear] to be increasingly linked to organised crime."

The second is a citation from 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 punishments).

Irish Free Software Organisation would like to point out that it is
oversimplistic and harmful to society make legislation on the assumption
that giving rights-holders increased access to national police and courts
will decrease organised crime.  In the US, it has increased some types of
organised crime:

Why is a Free Software organisation concerned?

SCO has accused IBM of mixing some SCO-owned code into the kernel of the
GNU/Linux operating system.  SCO claims 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 and others have had
there 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.

A recently leaked memo[2] from SCO shows that a 2002 study they conducted
concluded that they "had found absolutely *nothing*. ie no evidence of any
copyright infringement whatsoever".

The interesting thing is that SCO is funded by Microsoft - the makers of
Microsoft Windows, whose closest rival is: GNU/Linux, which is Free
Software's largest project.

Another leaked memo, the authenticity of which has been confirmed by SCO[3],
revealed that SCO received funding of more than $100 million from

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, huge fines, and endless bureaucracy: 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).

IFSO requests that:

1. Disputes about patents and trade secrets be taken out of the scope of the
   directive altogether.  The measures and justifications are completely
   inappropriate for such issues.

2. The Directive should only apply where there is intent to infringe for
   large scale commercial gain.  Small scale gain can't possibly fund
   organised crime.

[2] http://www.groklaw.net/pdf/IBM-459-22.pdf
[3] http://www.eweek.com/article2/0,1759,1542915,00.asp
[4] http://www.opensource.org/halloween/halloween10.html

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

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