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.

Comments

Re:How do they decide which companies can do it?

[nacturation]

Here's Section 8 of the FFII legislation:

Article 8
Measures for protecting evidence

1. Member States shall ensure that even before the commencement of proceedings on the merits of the case the competent judicial authorities may, on application by a party who has presented reasonably available evidence to support his claims that his intellectual property right has been infringed or is about to be infringed, order prompt and effective provisional measures to preserve relevant evidence in regard to the alleged infringement, subject to the protection of confidential information. Such measures may include the detailed description, with or without the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto. These measures shall be taken, if necessary without the other party having been heard, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.

Where evidence-protection measures have been adopted without the other party having been heard, the affected parties shall be given notice immediately after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of
the affected parties with a view to deciding, within a reasonable period after the notification of the measures, whether the measures shall be modified, revoked or confirmed.

2. Member States shall ensure that the evidence-protection measures may be subject to the applicant's lodging of an adequate security or equivalent assurance intended to ensure compensation for any prejudice suffered by the defendant as provided for in paragraph 4.

3. Member States shall ensure that the evidence-protection measures shall be revoked or otherwise cease to have effect upon request by the defendant, without prejudice to the damages which may be claimed, if the applicant has not instituted legal proceedings
leading to a decision on the merits of the case before the competent judicial authority within a reasonable period, to be determined by the judicial authority ordering the measures when the law of a Member State so permits or, in the absence of such determination, within a period not to exceed 20working days or 31calendar days, whichever is the longer.

4. Where the evidence-protection measures have been revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of any intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant with appropriate compensation for any injury caused by these measures.

5. Member States may take measures to protect witnesses' identity.

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. :)

Re:Highlights

[absolut_kurant]

["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."]

This is NOT TRUE, just a spin! Only 3 parts of the directive are limited to "commercial scale", i.e. freezing of bank accounts, getting bank information and trying to get background information on the copying organization. So the stormtroopers can still your house.

Re:*Companies*!?!

[Sumocide]

Let me quote from the directive, Article 8:

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.

Not true

[NigelJohnstone]

"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.