[Fsfe-ie] Draft letter on IPRED2

David O'Callaghan david.ocallaghan at cs.tcd.ie
Thu Aug 25 11:53:33 CEST 2005


Déardaoin, 2005-08-25 ag 01:11 +0100, scríobh Ciaran O'Riordan:
> ============================8<---------------------------
> 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."

A recent article in Wired, via BoingBoing, suggests that there is little
evidence for these links in the US, and the hype has been created by the
music and film trade associations. There are some small-time gang
members involved in burning discs, but it is not "organized crime" in
the sense we usually understand it.
I would guess that a similar state of affairs exists in the EU, although
there may be some more serious links in Russia and the Far East.


> 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).

Of course the Charter doesn't define "Intellectual property" or what
"protecting" it means, but surely the existing laws and directives
related to copyrights, trademarks, patents, etc. are not wholly

I think I wrote something about this in a previous email to the list:
having this in the Charter (and in the proposed Constitution) allows the
IP maximalists to always insist that we need more IP protection,
whatever the cost to society.

> 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:

Do you intend to make a reference to the increases here?

> 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.

I just realised you were referring to SCO with "some types of organised
crime" above. This seems a slightly risky tactic. I've no doubt that SCO
deserves serious punishment for what they have done  and personally I
would agree with the "organized crime" label, but we may appear to be
cranks if refer to our opponents in this way.

> 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.

Has SCO provided *any* evidence to support their claims?

> 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?

And the proponents of the directive will say "No, no. You don't
understand, this won't be used against companies selling Linux (provided
they follow the sacred Intellectual Property Rites) but against
terrorists and criminal organizations!"

I think calling SCO organized criminals confuses the issue. The
proponents of the directive are saying it will be used against organized
crime we're saying it will be used *by* organized crime, which leaves us
somewhat open to the accusation that we don't understand what they're
trying to do.

> 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:

Perhaps we want to say something stronger like:

"While IFSO disagrees with treating 'Intellectual Property' infringement
as a criminal rather than civil matter, if this directive were to be
brought forward for approval 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.

Presumably, we would prefer that these measures, if implemented at all,
should be explicitly limited to trademark and copyright infringement
("counterfeiting and piracy").

Kind regards,

-------------- next part --------------
A non-text attachment was scrubbed...
Name: smime.p7s
Type: application/x-pkcs7-signature
Size: 2871 bytes
Desc: not available
Url : http://mail.fsfeurope.org/pipermail/fsfe-ie/attachments/20050825/9f18d15b/attachment.bin 

More information about the FSFE-IE mailing list