[Fsfe-ie] IPRED2 draft 0.3

Ciaran O'Riordan ciaran at fsfe.org
Fri Aug 26 13:36:03 CEST 2005

All the criticisms were valid and I think I've encorporated all the
suggestions, plus some other improvements that came to me.

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 giving
rights-holders increased access to the resources of law enforcement
agencies and introducing harsh punishments for broad categories of
activity is not only inefficient but also fuels activities that are
harmful to society.

The USA has already enacted similar legislation.  Like the software
patents issue, this provides valuable evidence about what a mistake it
was.  In the USA, a not-profitable company called SCO has accused IBM
of violating their copyrights by mixing some SCO-owned software 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,
which holds to the copyright to the largest part of GNU/Linux, and
others have had their time wasted by broad subpoenas.  Software users
have been scared away from switching to GNU/Linux because of perceived
uncertainty of it's legal status.

Despite SCO's numerous published claims, and all it's many appearances
in court, they have yet to have even a single claim proven.  Not only
this, but it has recently come to light[2] that in 2002, when SCO
conducted a study to search for SCO-owned code in the kernel of
GNU/Linux, the researchers concluded that they "had found absolutely
*nothing*. ie no evidence of any copyright infringement whatsoever".

Also relevant is that this company which is damaging the reputation of
GNU/Linux and businesses based on it is funded by Microsoft[3].
(GNU/Linux is the #1 competitor to Microsoft's Windows operating
system.)  A memo, whose authenticity has been confirmed by SCO[4],
shows that Microsoft have given SCO more than $100 million in funding.

Trying to prevent organised crime is a good goal, but the Commission's
draft text will have the opposite effect: it will prevent legitimate
commerce in the EU and it will provide business incentives to abuse of
the law for market-place gain.

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 and should be treated as a civil offence.

3. That issues of copyright should be considered separately to issues
   of trademark, and to geographical indications, and plant types, and
   patents.  Legislation for "intellectual property" is too broad to
   be sensible.

[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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