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EU Passes Nasty IP Law
FireBreathingDog writes "This BBC report details a new European Union law that 'allows companies to raid homes, seize property and ask courts to freeze bank accounts to protect trademarks or intellectual property they believe are being abused or stolen.'" Like any bit of controversial legislation, it can change massively just before being voted upon. This legislation, which originally had DMCA-like provisions (protections for technical protection measures on copyrighted works), seems to have lost them prior to passage. (I'm sure they'll be back in some new piece of legislation.) However, it does make "regular" copyright enforcement much more aggressive in the EU, with companies able to raid, confiscate and freeze the bank accounts of those accused of copyright infringement. More information: IP Justice, FFII, FFII background.
Here's some more information.
Underholdning.info
Since your not going to rtfa, ill drop the highlights.
["Before the vote, critics said the law was flawed as it applied the same penalties to both professional counterfeiters and consumers." But a late amendment limited them to organised counterfeiters and not people downloading music at home."]
["The European law was shepherded through the European Parliament by MEP Janelly Fourtou, wife of Jean-Rene Fourtou who is boss of media giant Vivendi Universal. "]
["One amendment said action should not be taken against consumers who download music "in good faith" for their own use."]
"The European law was shepherded through the European Parliament by MEP Janelly Fourtou, wife of Jean-Rene Fourtou who is boss of media giant Vivendi Universal."
Tom.
Oh arse
which gives the member states a framework for new laws that have to be put into legislation within a certain time frame (2 years). So there is still hope that individual states will have less stringent laws than the directive calls for. Although there may also be states that will have far more stringent laws.
***Quis custodiet ipsos custodes***
So from paragraph 1, it seems as though the applicant (the one wishing to do a raid, for example) will need to demonstrate to "competent judicial authorities" that there is a clear and present danger of evidence being destroyed. Additionally, as per paragraphs 2 and 4, applicants will also need to provide assurance that, in the event the defendent is found not to be infringing, compensation for injury caused by whatever actions taken is provided.
Basically, SCO could use something like this, but it better have some significant cash on hand to reimburse any raided companies for downtime and losses incurred. Not quite as draconian as the summary would have you believe. But then, posting controversial summaries is Slashdot's hallmark.
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One important detail that seems to have been missed out of the summary... (from the linked BBC article)
"But a late amendment limited them to organised counterfeiters and not people downloading music at home."
1. Member States shall ensure that [..] the competent judicial authorities may [..] order prompt and effective provisional measures to preserve relevant evidence in regard to the alleged infringement [..]
That's all. Nowhere is mentioned who shall take the measures. But since raids by companies would be unconstitutional in all member states the 'raid by companies' bit was pulled out of the editor's ass.
"But a late amendment limited them to organised counterfeiters and not people downloading music at home."
... which brings up the ultimate goal of these disgusting cartels. If and when they get their way, there will be no place for us to move to. We'll all be equally beneath their heel.
One important detail got left out of your post.
This applies ONLY to freezing bank accounts and doing background checks.
They CAN still break down your door for suspected copyright infringement at the personal level. This includes trading cassette tapes, as college students have been doing for thirty years.
I predicted that, in the day of the Internet and digital media, either the copyright and patent regimes would have to weakened if not scrapped, or draconian laws that would make the former Soviet Union look liberal would have to be enacted.
Looks like we've chosen the stalinist route: Communism^H^H^H^H^H^H^H Capitalism over Freedom.
Nice going Europe. Scratch another place to move to
The Future of Human Evolution: Autonomy
Article 146 of the "Grundgesetz" stipulates that the Grundgesetz may only be changed via a decision by the people (referendum), which did not happen when the Grundgesetz was subordinated under the European laws (specifically the passus that European right overrides national right). This is a non-trivial change in constitution which was not approved by the people (because the people was not asked!). Thus, it can be argued that any directive that must be transcribed in national law is unconstitutional, because the people never relinquished this kind of authority to the European Institutions. (Not to mention that this particular directive flies flatly in the face of free expression, due process, freedom from unreasonable search & seizure, etc.)
Moreover article 20.4 of the Grundgesetz grants the right of "resistence" for the case where institutions become corrupt, and no longer act in the spirit of the constitution:
In summary:- The Federal Republic Germany is a democratic and social Federal State
- All power of States is rooted in the People. This power is exerced by the people in Elections and Votes, and by special institutions of the legislative, executive and judicial branch.
- The legislative is bound by the constitutional rules, the executive and the judicial are bound by law and justice.
- All Germans are entitled to exerce resistance against anybody who sets out to remove this order, if no other resort is possible
It can be said that this article is roughly equivalent with the US second amendment, except that unlike the second amendment it doesn't unfortunately provide the tools to exerce this right to resistance.Consequently, some of the more vocal participants in the heise.de boards have called for more drastic ways to show their disapprovment.
For those of you who read German, here is a more detailed analysis: GG Art. 20 - der deutsche Bundestag untergrabt seine eigene Legitimation!.
Say no to software patents.
This same article says that no action may be taken against consumers who act in "good faith" and download music. Of course, we must see how this works out...
Making legislation to protect copyright rights is okay for me, making legislation to limit the use of legally licensed (equals bought) copyrighted material is what's really wrong.
This amendment seems decent enough:
One amendment said action should not be taken against consumers who download music "in good faith" for their own use.
If it basically restricts the suing to professional pirates, ie people who download music or movies to sell it on the street, then I don't see anything wrong with it. That's what copyrights were meant to do - protect artists/publishers from other publishers (and not from consumers).
If that's what this law is, it seems pretty sensible after all!
Daniel
Carpe Diem
"will need to demonstrate ....that there is a clear and present danger of evidence being destroyed"
Not true, this was one of the things I didn't like. Its worded loosely here:
", in particular where any delay is likely to cause irreparable harm right holder, OR where there is a demonstrable risk of evidence being destroyed"
Note the 'OR', its enough to show that a delay is likely to cause irreparable harm. They don't have to show there is a risk of evidence being destroyed.
The problem is simple: the interpretation of "good faith" is up to the raiding corporation.
Scientology is going to LOVE this. Anywhere, anytime, in they come through the windows! Frozen bank accounts! Jail! And all they have to do is ASK?
Yeah, you can take them to court. After all your stuff is gone, your bank accounts locked up, and your person seized.
Does no one remember alt.scientology.war in Wired magazine? Time magazine? Arnie Lerma? The first spam assault back in 97-98, with over 1 million spam messages and forgeries posted to alt.religion.scientology?
They were the first copyright abusing corporate entity, and the first to use spam as a weapon. And they are still #1 for suppressing coverage of their activities. Does no one remember what they did when they didn't have the law on their side? They were raiding THEN.
No one can stand up to the Hubbardites in Europe anymore if even a fraction of this insanity becomes law. Xenu.net will have its hosting ISP's doors kicked in the week after this passes. It'll be illegal in real terms to talk about their "secret" teachings on the internet. This is an eternal gag order.
Music? Movies? That's kiddy stuff. The nuclear strength copyright maniacs are what we have to worry about.
1) But late amendments added to the law limited who intellectual property owners could take action against and what penalties they could apply. The amendments the parliament refers to are actually a compromise reached between parliament and the council of ministers (representatives of EU national governments) earlier in the process. The amendment says, in the preamble (not the main body of the text) that some (not all) of the harshest sanctions, such as freezing bank accounts, should only apply to 'commercial' violations. However, this is very broadly defined as a violation that gives someone an 'economic advantage', which could be applied to, say, someone who downloads a song off the Internet for free. For more information see this story.
2) This legislation, which originally had DMCA-like provisions The provisions banning circumventions of copy-protection technology were passed in the EU Copyright Directive of 2001, and according to a recent study, EU member nations are implementing these sanctions in full, without including protections to researchers and business competition, which they are allowed to do. See this story.
3) with companies able to raid, confiscate and freeze the bank accounts of those accused of copyright infringement This is accurate: these surprise raids are known as Anton Pillar orders, and in civil cases, they allow companies themselves to carry out the raids, hopefully overseen by their solicitors to make sure they keep within the rules of the order. More information on these orders here. In criminal cases, which are the only kind in which most countries allow Anton Pillar orders, the raids are carried out by police. In the UK the raids are allowed in civil IP cases, but only for large-scale piracy or counterfeiting. The new IP directive could make these raids available for any civil IP case. The recent raids on Sharman Networks and others in Australia were authorised by Anton Pillar orders.
It is true that the directive must still be interpreted by member states and implemented in their national laws, and this could represent an opportunity for the directive's harsher aspects to be limited. But it will now be a matter of making this happen in 25 different member countries (post-enlargement of EU) rather than on a Europe-wide level. Additionally, the experience of implementation of the EUCD (see above) suggests that member states won't automatically limit bizarre and repressive directives, no matter how controversial they are.
This is partly because, when they're debating laws like this at a national level, they tend to talk to the parties directly affected -- in this case, people like the BSA and the IFPI (Euro-RIAA); ordinary citizens have to work harder to be included in the process.
Matt Broersma, ZDNet UK