[Fsfe-ie] IPRED2 draft 0.4

Ciaran O'Riordan ciaran at fsfe.org
Fri Aug 26 22:00:07 CEST 2005

Here's another slightly updated version of the proposed IFSO letter about
IPRED2.  The main change is that I've deleted the second last section which
was about the problems we have with this directive.  Initially we had some
that were copied from ffii.org.uk, but that page was about IPRED1, not 2.
So we have to do our analysis of IPRED2's problems from scratch.

I've sent a seperate mail asking how to read the directive document.  I'm
going to start writing a brief critique of the section/thing/directive in
pages 5->11 of that document.

Ian Clarke <ian at locut.us> writes:
> "Trying to prevent organised crime is a laudable goal, but the
> Commission's draft text is unlikely to have this effect, and creates
> the serious risk of abuse by companies like SCO to harass legitimate
> business for their own benefit".

I'm not sure that the Commission's text is unlikely to prevent organised
crime.  It might do, but our issue is that it will also have other effects
which are quite negative.

I've incorporated the other suggestions.

David O'Callaghan said:
> "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:"

I agree that "IFSO requests:" is a bit weak, but the "Intellectual Property
is over broad" should be part of the requests, IMO, so I've added that bit

> > 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").

Yes.  I've tried to put this into the list of requests but it needs more

Irish Free Software Organisation (IFSO) comments on IPRED2 proposal

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).

IFSO 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.

As with the issue of software patents, the USA provides us with
excellent evidence of the danger as similar legislation was enacted
there a number of years ago.  There, a failing 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 them licensing fees.

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 its 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:

[Better find the problems and potential with this directive]

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.

4. Harsh measures that are justified by possible danger to consumers
   should be limited to cases where danger to consumers is possible -
   e.g. imitation pharmaceuticals.

5. Measures justified by prevention of counterfeiting and "piracy"

6. Propaganda terms like referring to copying as "piracy" should not be part
   of EU legislation and continues the confusion between stealing and

[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

More information about the FSFE-IE mailing list