EU Court Asked To Rule On Private Copying

Techmeology writes "The Dutch Supreme Court has asked the European Court of Justice to decide whether downloading copyrighted material for personal use — even from illegal sources — is legal. At the heart of the debate is whether the European Copyright Directive requires that any new legal copy of material must have originated from a copy that is itself legal. The case tests the law in the Netherlands, where copyright holders are granted a levy on blank media in exchange for the legalization of private copying." In the Netherlands, it is already legal to download from illegal sources. But EU law might conflict and trump that.

Comments

Downloading, or uploading?

[ais523]

I thought that it was much more common for people to go after uploaders than downloaders (including people uploading as part of a torrent, rather than leaching), because it was much clearer that copyright infringement was happening on uploads. For a download, you have the issue of when the copy was created and who did it.

Re:Downloading, or uploading?

[AK Marc]

All the ads say "don't illegally download". All the newspaper coverage says "downloaders targeted" But I've yet to see a single case of a downloader who didn't also upload being taken to court. There are some close in France and New Zealand with the 3-strikes laws that are not criminal laws, but all the "downloaders" sued in the US were sued for uploading only.

In practice, downloading is legal (except where uploading while downloading).

Re:Downloading, or uploading?

[Genda]

Apparently you didn't get the memo... The various recording industries have spent billions globally to ensure that you have no rights, save the right to pay them every time you eye see's and image or your ear hears a second or more of their proprietary IP. Any laws to the contrary are hurdles to be overcome with the proper application of wealth and political manipulation. Fair use in the minds of these men is, you use it you pay any time, every time. Hope that clears up any questions you may have had.

Re:Downloading, or uploading?

[Anonymous Coward]

not to mention that you also pay if you *don't* use it (blank media levy), because you just might, possibly.

Re:Downloading, or uploading?

[Crayon Kid]

You don't even have to go that far. Criminalizing downloading is insane. It doesn't make sense, it cannot work. Example: someone posts a picture of their cat on any website, without mentioning distribution terms, anybody who downloads that picture is automatically at fault.

This is why I suspect this EU thing is not a blanket "let's get all downloaders" thing, but a rather more subtle approach.

You have to understand that in EU, not just in Netherlands but many countries, downloading is currently legal, period. What the law punishes is distribution ie. making available, uploading etc. But you can't go after uploaders who use protocols like BitTorrent, because any of them taken individually (usually) only upload pieces of files, not entire files. In order to be able to prosecute anybody for one download you'd have to keep track of all the IP's that provided all the file pieces, then identify the people behind them, then prove intent and knowledge of what they were doing, then prove collusion to break the law.

Given the privacy laws of most EU countries this is simply impossible. It won't even get past identifying people behind IP's, let alone seizing evidence to prove intent, knowledge and collusion. It's a chicken and egg problem: you need identities and evidence to prove they did something wrong, but you can't get identities and evidence until you prove it.

So I expect that this thing is about relaxing copyright and/or privacy laws so it allows media companies to get warrants for people that engage in certain "obvious" file sharing activities, on the downloading side, so they can identify them and get evidence. Even so, I'm not 100% sure how it would work. Simple participation in a BT swarm doesn't mean you get even a single file, and if you do you still have to prove intent and knowledge before you get your warrant. And if they hope to get warrants without proof... that opens a very big can of worms.

Re:Trumping laws

[ThatsMyNick]

I can't speak for The Netherlands, but in the United States, there are certain things that "International Law" cannot do in the United States.

As a basic rule (there are no doubt exceptions), if Congress can't do it by law, the President and the Senate can't do it by treaty.

As an obvious and trivial example, no treaty in the world nor any international body who, by existing treaty, has the power to make "International law," can raise the voting age in America higher than 18. Any treaty with such a stipulation or any treaty which required honoring any international rule-making body's rule that 18 year olds could not vote until they were older would be un-constitutional and legally unenforceable inside the USA. If some other country wanted to enforce it, they could impose sanctions or declare war if they wished, but no US court would uphold such a rule or allow it to be enforced by judicial or domestic executive action.

If the US voluntarily amends its constitution to specifically allow an international body to take precedence over the US laws, then yes it can. The EU countries have voluntarily allowed EU law to take precedence, and are now bound by it.

Wouldn't It Be Funny...

[Greyfox]

Wouldn't it be funny if they just ruled that ALL copying was illegal? Through like, a clerical error or something? No more copies of any work! Everyone would just have to read the one legal work in existence and then pass it around! The one guy with an iPhone COULD call the one guy with an Android, but he won't, because both guys think the other is a fanboi. There'd only be one Windows PC and one Apple PC, but they wouldn't be able to E-Mail each other because that would involve copying the message. Thousands of years of human progress, magically washed away! And after everything's settled down, you'd better hope that you get to be in the tribe of cavemen with the one allowed copy of fire! And... pants.

Re:Switzerland

[upside]

I love the obsession with "socialism" in the US. Forget about commies and pinkos, here come muslims and socialists. Oooh, next Hollywood nightmare scenario: Socialist Muslims! That would scare the pants off you.

You know, Switzerland and other "socialist" European countries have strict belief in private property. If you Yanks would be able to handle the thing called nuance, you'd realize there are shades of gray.

http://www.nytimes.com/2009/05/03/magazine/03european-t.html?pagewanted=all&_moc.semityn.www
http://en.wikipedia.org/wiki/Nordic_model#Overview
http://en.wikipedia.org/wiki/Rhenish_model

Bittorrent uploading illegal in NL

[QuasiSteve]

[...] you can't go after uploaders who use protocols like BitTorrent, because any of them taken individually (usually) only upload pieces of files, not entire files.

Slight correction in the case of NL: This is still illegal.
http://www.iusmentis.com/auteursrecht/inbreuk-bittorrent-torrents/
In essence, the fact that you're (presumably) only uploading small parts of the work, rather than the whole work, doesn't matter. The only situation in which you're allowed to distribute fragments of a work is when you're using it as a citation. Since the fragment isn't discussed or criticized, laws governing the use of citation don't apply.

He then goes on to explain that, potentially, you might get a lesser sentence if you only uploaded two fragments (as opposed to many more, presumably), and that anybody offering the .torrent file itself is not making a copy of the work. Nevertheless, if you offer enough of them you can still be hit with a 'structural facilitation' of copyright infringement, etc.

I don't recall there being cases about uploaders getting chased down in NL, despite the commonplace bittorrenting, though - they tend to go after the indexing/hosting sites and sometimes the ISPs.