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UK Prepares Own Version of the DMCA
philkerr writes "I've just been informed by the UK Patent Office, below, that the EUCD (European Union Copyright Directive, the equivalent EU legislation to the DMCA) consultation paper has been released. It's important that we give feedback to the UK government that this legislation will have a chilling effect on the software industry." NTK has a few choice words on the subject as well. We've done several articles on the EUCD before, and Alan Cox has been campaigning against it, but it appears that the fix is in: Europe is going to get DMCA-like laws implemented in each nation by the end of 2002.
I'll take the bait...
When a graduate student is afraid to present a paper, I shiver. The fact that MicroSoft, for whatever reason, chose not to actively oppose the paper is good, but the fact that the college was worried to that extent was a perfect example of chilling effect.
There was also Bruce Perens having to withdraw a demonstration because HP was afraid of the repercussions. That's free speech which was curtailed by the chilling effect of the DMCA.
There are more, but that should be enough to show that a chilling effect exists.
DMCA is alas just the implementation in local laws of the WIPO recommandations. So it's just a matter of time until all the countries that have adhered to WTO (i.e nearly all) implement similar law. Have a look at this intersting FAQ http://anti-dmca.org/faq.html
X-DMCA-Complaints-To: dmca@comcast.net
Chilling...X-Abuse-and-DMCA-Info: Please be sure to forward a copy of ALL headers
X-Abuse-and-DMCA-Info: Otherwise we will be unable to process your complaint properly
Timeo idiotikOS et dona ferentes
Laws in the EU must be passed by the Council (governments of the member states), and sometimes the European Parliament, in order to come into effect.
In this case, the EUCP was already passed on European level last year, and member states are required to implement it in their own legislation.
The EU equivalent of the US constitution are the treaties that formed it, and other treaties that have been approved. There are a handful of them. Member state laws and EU laws can be challenged in the European Court of Justice (the EU equivalent of the US Supreme Court) on the grounds that they conflict with the treaties. For example, a far-reaching EU ban on tobacco advertising was challenged and thrown out on the grounds that the Commision did not have the juristiction to pass such a law.
The treaties are long and complex. No normal human being reads through them so I am not aware to what extent the EUCP may conflict with the treaties. Even if the EU as such can not pass it, there is nothing preventing the heads of state of the individual governments from coming together outside the EU and deciding to collective (try) to get this directive passed in each and every state (assuming the national legislatures agree).
The European Court of Justice, comprising judges from each member state, is traditionally used by member states or institutions to sue other states or institutions. It is rare that individuals challenge laws, but to the best of my knowledge this is possible -- I think recent case law confirms that.
There is also another possibility: some 40-50 countries of Europe are signatories to the European Convention on Human Rights, which has its own court. If the EUCP happens to violate any of the freedom of speech and freedom of expression guarantees found there, I imagine a motivated individual with the proper legal assistance may be able to try this as well.
This would apply if it was a national decision. But it's already been approved on EU level. Either Holland implements the EUCP into law, or it risks being sued in the EU's Court of Justice. And the commision is often zealous when it comes to the swiftness of national implementation of EU laws, having sued many states before for insufficient laws.
I don't live in Switzerland but have some familiarity with their system.
Their constitution, which I consider the best among those I've seen, guarantees the right for the public to challenge government-proposed laws by collecting a certain number of signatures. The government is then constitutionally required to hold a binding referendum. This applies to all laws, federal and local. The public can also create their own laws in the same manner, and the government doesn't have the power to stop them. Truly elegant. I wish we had the same in the EU.
Switzerland is a member of WIPO though, and thus will most likely not be spared. I don't know how the initiative and referendum laws deal with international treaties.
As for choice A and B, countries with a parliamentary system typically at least have a choice of A, B, C, D, E, F, and G. But that doesn't come close to citizens having ultimate power over each and ever law, like in Switzerland, obviously.
I hear this all the time - that somehow all the protests over RIP were a miserable failure.
As a matter of fact, the final form of the act that passed was substantially improved on the original proposal. The *original* bill was going to demand key escrow: that's to say, you'd have to hand over you PGP keys to a third party before you could use them.
Widespread protest by businesses and individuals stopped that.
As a fix, the government introduced the idea that if you didn't hand over your password, it would be presumed that you were hiding it. That's to say, reversing the burden of proof. People protested about this to, and the final form of the Act goes a long way to mitigating this issue.
There's a lot that's wrong with the RIP Act - but to describe the fight against it as a series of defeats is just as bad. You can make a difference. If you protested against RIP, perhaps you already have.
I am active in the X-Box Linux effort, and based in the UK, it makes me very sad to read the summaries of this law here.
King Canute-style the people who make money from restricting availability of digital content have gotten more bad law made. As there is no technical fix for the erosion of their ability to overcharge, they instead try to bludgeon their customers into lying still.
The resources of the state, including the unique powers to punish and deprive citizens of money and liberty will soon be being applied to individuals in the name of enriching the copyright holders. This is so inappropriate its ludicrous.
I admired Janis Ian's second article reminding the legislators that they are voted in. But look at the incestuousness between these 'copyright holders' and the media that politicians need to influence the masses that vote for them! How far would a party get if it stood on a platform of de-emphasising these laws (I say that because no one country can strike them from the books, this being an EC law).
However, there is one bright light untouched by this. Linux, GPL software in general, stands as the opposition to this IP world. At the cost of 'dropping out' from using programs and media that is not free, you can still get by. So my prediction is that this historic force of giving hugely excessive power to copyright holders across the world will polarize people all the more and give the whole free knowledge philosophy a huge boost, turning many of us into mini-Stallmans.