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?

[rtb61]

For downloads the issue is for the individual trying to figure out with all the hundreds of billions of definable individual definable bits of copyrighted at hundreds of millions of locations on the internet, which they are allowed to download and which they are not allowed to download. Downloaders have to rely on the copyright integrity of the people providing the content. All copyrighted content being treated equally, whether a single photo, an essay, a poem, a news item or a video, and every possible web site even personal web sites given the benefit of the doubt otherwise requiring every uploader to hold a licence and all content to be vetted, even people who own a digital phone.

So it is looking more and more like the creation of biased copyright laws, where certain corporations are legally able to force the government to protect all of the corporations content at the taxpayers expense, whilst that same corporation is entitled to 'steal' (actually steal as in claim ownership of that content and deny the content creator ownership, not copying) everyone else's content.

So copying is not copying. Copying as distorted in the silencing of free speech upon the accusation of copying with absolutely no repercussions for repeated false accusations. All content comes under attack, every video, every image and every written piece.

Talking about attacks on free speech. There are snippets about the free speech being of questionable value in main-stream-media starting to float about. About it's threat to the social good and how it should be controlled. This has all the corporate stink of for profit corporate lies should be protected and actual 'FREE' free speech, you that unprofitable stuff called the truth, needs to be controlled because of it's negative impact on corporate profits. Those Muslims in all their rage only managed to burn down one bloody McDonalds out of 33,247. The whole thing is starting to stink of a surreptitious attack on free speech.

Re:Downloading, or uploading?

[aliquis]

The problem is of course that most downloaders also upload and hence break the law due to the technology used. And if it wasn't used download speeds would suck.

Here in Sweden we also pay a fee for being allowed to privately copy things for external harddrives, flash memory and MP3 players. But of course more or less no-one copies things that way. The Internet is the easy way to fetch your copy.

Even more so with all the DRM I think it's rather easy to argue that the industry doesn't even let me copy things since they are preventing it so why should I have to pay for something they don't let me do?

Not that I get why you should pay a fee at random anyway. It's not like the value of 1 TB of MP3s is the same as 1 TB of perfect blurayrips for instance.

Re:Downloading, or uploading?

[grahamm]

If the law (in whatever jurisdiction) gives you the right to make the copy (rather than just making it not illegal), then surely any DRM that prevents you from exercising that right should be illegal. Digital Rights Management needs to 'grow up' so that it enforces the rights of both the copyright owner and the owner of the individual copy.

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:Downloading, or uploading?

[QuasiSteve]

Typically these laws are written in the form that you are 'allowed' to make a copy, thus giving you no specific right to the ability or capability of making said copy - which means that the rights holder can make it as difficult as they want for you to make that copy.
If that means you have to hire a bunch of artists to copy a movie frame by frame by oil painting on canvas, and an orchestra and voice artists to record the movie's sound on an 8 track system, then that sucks for you - but at the same, the rights holder couldn't complain since you're allowed to make that copy.

Even if it says you have the right to make a copy I think the above largely applies. The laws tend not to say anything about how that copy is made and how good the result is.

Re:Downloading, or uploading?

[V for Vendetta]

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.

Right on the spot. By campaigning against "TEH DOWNLOADERZ", they try to eleminate the biding side of the "market" and of course try to make consumers "feel bad" for what is most likely perfectly legal in their country (i.e. in Germany, downloading isn't illegal, uploading is). But as most people aren't computer-literate enough to knw that a torrent client is both an up- and download tool, they're easy prey for the content rights owners.

As for the blank media levy (and other fees), here's an online calculator (German, also based on German laws & regulations) showing you how much one pays by simply buying some devices. Even if you don't speak German, the sheer number of items and the attached price tag will give an idea of just how much you pay to content rights holders before you've even listened to one song.

Re:Downloading, or uploading?

[Fr33z0r]

It doesn't make financial sense to target downloaders, with the people making copyright material available via bittorrent for instance, you can claim astronomical damages because that initial infringement results in exponentially more infringements. The damages done by downloading alone are easily quantifiable, and they're so low it's not worth pulling the offenders into court. It's the difference between "200 people downloaded a track from the defendant, and went on to share that track with hundreds more each, so the defendant's action has caused us hundreds of thousands of dollars worth of lost sales" and "the defendant downloaded our track without paying, this action cost us less than a buck"

Re:Downloading, or uploading?

[xelah]

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.

Erm, why? It's quite obvious that whoever uploaded their picture intended it to be available to the public. There's an implied licence. That's entirely different to downloading something which you know is created by someone for commercial gain, you know is sold by them for money, and doing so from a source you know to be illicit.

Re:Downloading, or uploading?

[Crayon Kid]

You're right, wrong example.

Here's the proper example: it wasn't that person's picture. He had no rights to distribute it. Under the normal laws, only that person is at fault. Under this kind of law, all the people who downloaded it would be too. And that just ain't right. It leaves everybody open to entirely too many problems, it becomes impossible to do much on the web without constant fear.

Re:Downloading, or uploading?

[redlemming]

Or, in other words, we should be referring to current DRM systems as AFMs, or "Anti-Fair-Use-Mechanisms", as preventing reasonable or fair copies of digital media is exactly what these systems are intended to achieve.

Re:Don't expect to lose the tax

[meerling]

Canada?

EU Law Trumps...

[michael_rendier]

When the church made the money, the church made the law...

Trumping laws

[davidwr]

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.

Re:Trumping laws

[manu0601]

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.

Unfortunately for us UE citizen, we completely wrecked people sovereignty when building UE. Many key policies are in the hands of the UE commission or the UE council, without much control left on what they do.

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.

Re:Trumping laws

[fearofcarpet]

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.

Unfortunately for us UE citizen, we completely wrecked people sovereignty when building UE. Many key policies are in the hands of the UE commission or the UE council, without much control left on what they do.

It is true that Brussels can impose laws on the EU, but it is hardly "wrecking sovereignty," particularly in the Netherlands which has benefited tremendously from environmental laws that regulate upstream pollution in other sovereign nations and the open borders that have lead to its current trade surplus. Without the EU, Germany and France could dump waste in the Rhine and the Maas at their borders and impose tariffs on Dutch goods and the Netherlands would just have to deal with it.

The Dutch government (and the other EU member states) voted to follow EU law (the EU Commission is not an unelected dictatorship) in this matter and therefore has to make sure that its own laws comply--if member states could cherry-pick which laws to follow, the EU would not function. And you can argue about the Euro all you like, but modern Europe simply wouldn't be possible without a governing body like the EU to regulate trade, enforce open borders, create uniform environmental policies, provide research funding, oversee oil and gas distribution, ensure fair use of airspace, launch satellites, etc. It has flaws, sure, and some of the silly regulations in the name of uniformity are, well, silly, but you can't seriously believe that tiny countries like the Benelux, Ireland, and Estonia would have been more prosperous on their own.

Re:Trumping laws

[tsa]

"Base13: "What do you get if you multiply six by nine?" "Six by nine. Forty two." "That's it. That's all there is.""
No. You still get fifty four. It doesn't matter how you represent that amount, the amount is still the same. So "6 x 9 = 42" is correct, but "six times nine is forty two" isn't.

Re:Trumping laws

[Teun]

Indeed, in most of the EU international treaties 'in principle' override national laws.
Especially so in The Netherlands where modern international law was more or less invented by Hugo de Groot , there is a reason the International Court of Justice is based here.
International treaties were essential for this small country to become a major trading nation.
Until now we've had a strong vestige in our law to only go after those 'making available' copyrighted work while private use of such copies has been widely accepted.
It's going to be interesting to see the outcome of this EU court case.

Re:Trumping laws

[mdragan]

Plus, the parent's analogy is not correct. The correct one would be: can federal institutions of the United States of America create laws that apply to the member States?

Re:Trumping laws

[Genda]

Wow... You gotta loosen up those tinfoil hats every now and then and let some blood in, you'll end up turning your grey matter into cottage cheese. See we know that global climate change is happening because animal migrations are showing signs of shifting latitudes. So this is just about providing north-south corridors through low populated regions to aid those animals who would be endangered by climate change to move someplace more conducive, without ending up road kill. Comprendo? Harrison Ford is spearheading the program to provide north/south corridors throughout the Americas and preserve wild forest. I guess that makes him some kind of commie, eh?

As for taking land that is being farmed unsustainably, The U.S. is currently losing about 3 tons of topsoil, per acre, per year. That's faster than the loss during the 30s dust bowl era. I'm sure Wikipedia is just a commie plot, but the sources on the top soil are pretty good, and since there is plenty of corroboration from different sources, as an American, you should be concerned. This isn't a land grab. Its about protecting resources. Land that is being badly managed is going to be allowed to go fallow until it rebuilds is topsoil through the natural process of wild species intrusion. The did an experiment where they allowed a fenced in region to go wide surrounded by a sea of hungry cattle and sheep, the land went fallow and within weeks grasses and flowers thought to be extinct started showing up. The soil regained its vigor and organic content. New plants and bird species arrived. In short, the land regained its vitality and fecundity.

This isn't about some project to displace people. This isn't some U.N. clusterfsck. This is a simple process of preserving America's resources for future generation because this generation has no right to use the planet up for its own selfish whims. Its vital that we preserve biodiversity and our natural resources until we have mastered the technologies that will allow us to create the resources we all desire without any longer impacting the environment.

Re:Trumping laws

[Xest]

"and are now bound by it."

They can still leave the EU at any time they want and then not be bound by it too. They can even say we're leaving unless we get renegotiation on this issue if they want to try and change something desperately also.

As you say they're only bound by it so much and so long as they agree to be bound by it, no more, no less.

Re:Trumping laws

[mcvos]

"Base13: "What do you get if you multiply six by nine?" "Six by nine. Forty two." "That's it. That's all there is.""
No. You still get fifty four. It doesn't matter how you represent that amount, the amount is still the same. So "6 x 9 = 42" is correct, but "six times nine is forty two" isn't.

That's not how it works. Fifty four is itself a representation of an amount. That amount is represented by 54 in base 10, and 42 in base 13.

Re:Trumping laws

[tsa]

But how would you then say the number sixty one in Base 13?

Re:Trumping laws

[manu0601]

(...) it is hardly "wrecking sovereignty," particularly in the Netherlands which has benefited tremendously from environmental laws that regulate upstream pollution

I agree UE enforced environmental laws, which is good. But you did not made a point on people sovereignty, here. The UE building process is destroying people sovereignty that exist in member states without ever recreating it at the UE level, and the goal is to enforce some policies. Some like environmental rules sounds good to me. Others, like neoliberalism, do not. The problem is that citizen cannot have their words on theses policies anymore

but modern Europe simply wouldn't be possible without a governing body like the EU

There are modern european countries that are not part of the UE: Norway, Switzerland, Iceland. Their existence is not threatened by this situation. The UE is not the only way to organize collaboration between states.

Re:Trumping laws

[Pieroxy]

"and are now bound by it."

should have read: and have now bounded their citizens by it.

Re:Trumping laws

[Xest]

Yet their citizens determine the government, and hence whether they are bound by it...

Re:Trumping laws

[fearofcarpet]

I agree UE enforced environmental laws, which is good. But you did not made a point on people sovereignty, here. The UE building process is destroying people sovereignty that exist in member states without ever recreating it at the UE level, and the goal is to enforce some policies. Some like environmental rules sounds good to me. Others, like neoliberalism, do not. The problem is that citizen cannot have their words on theses policies anymore

If you define sovereignty as citizens having absolute control over all the policies of their country, then there are no sovereign nations on Earth (except maybe Somalia). All nations that engage in trade agree to rules (e.g., via the WTO) to ensure no one abuses the system. Right now, for example, the US is accusing China of offering financial incentives to their auto industry for maximizing exports. That is strictly an internal Chinese policy that a third party (the WTO) will decide the legality of vis-a-vis how it impacts the American auto industry. And there are certainly Americans and Chinese that want to abolish the WTO and end all free-trade agreements because they impinge on sovereignty. But their governments have decided that the benefits outweigh the costs. The citizens of the member states of the EU are free to elect parliaments that will withdraw their country from the EU, but they don't because the benefits outweigh the costs.

There are modern european countries that are not part of the UE: Norway, Switzerland, Iceland. Their existence is not threatened by this situation. The UE is not the only way to organize collaboration between states.

Norway is self-sufficient because of their enormous and well-managed oil reserves, which are already traded as a fungible commodity via a global trade organization. Countries like the Netherlands rely on the EU to do the same for their resources, like natural gas, which cannot be sold easily on the global market (because it costs too much to transport), but which require European infrastructure to sell outside their borders. France and Germany sell electricity within the EU and Poland can entice companies to locate their manufacturing bases there because of cheap labor, but only with the assurances (e.g., of stability and workers' rights) that come along with being part of the EU. When the EU was formed, Switzerland had the notable advantage of not having been recently bombed back into the stone age, which they combined with their prowess as bankers to leverage into the modern economic center that it has become. Iceland is really not a great example of a country that is doing well outside of the EU... in fact, Iceland would arguably be better off on the Euro at this point... And I did not suggest that any country's existence was threatened, merely that the modern, prosperous Europe of the late 20th Century couldn't have happened with the EU.

I just think it is a bit glib to single out the EU as some horrible sacrifice of sovereignty that tramples peoples' rights. If anything, constructs like the schengen zone increase the freedom of European citizens.

Re:Trumping laws

[Pieroxy]

Yet their citizens determine the government, and hence whether they are bound by it...

Not quite. In France both big parties (the only ones with a reasonable chance at presidency) support Europe. They use Europe to their own benefit and every time something goes wrong they blame the Europe for it. It works well and everyone has mixed feelings about Europe. Yet, as the perfect scapegoat, they have a big incentive to stay in Europe.

Re:Trumping laws

[manu0601]

All nations that engage in trade agree to rules (e.g., via the WTO) to ensure no one abuses the system(...) But their governments have decided that the benefits outweigh the costs.

This is exactly where democracy dies. Few governments asked their people about their opinion about entering WTO. Choosing to enter means a huge political choice, which is free trade and globalization.

The citizens of the member states of the EU are free to elect parliaments that will withdraw their country from the EU, but they don't because the benefits outweigh the costs.

Do not take that for granted forever. UE is heading in such a stupid way that time will come where some state will have to break the rules. Not sure no one will even bother leaving. They will just cease obey some UE rules

prosperous Europe of the late 20th Century couldn't have happened with the EU.

Tell that to the italians and the spanish. UE is no more a solution, UE is our worst problem now.

Re:Trumping laws

[Xest]

Right, and why are those two pro-Europe parties the big parties with a reasonable chance of presidency? Because those pro-Europe parties are the parties the French populace support.

There are anti-European parties in Europe, but the populace do not support that.

Re:Trumping laws

[Pieroxy]

Do you mean to say that everyone supporting a party supports every bullet point of the program of said party? All members adheres 100.00% to all ideas and proposals of said party?

I don't know which world you live in, but that's not mine.

We support the less worse party, or, in other words, the party that shares the most common views with us. They still do stupid stuff and we know about it in advance.

Re:Trumping laws

[Xest]

No one said anything about 100%, that's something you obviously made up in your head because you somehow need to rationalise your failure to accept that public support on an issue flows against your personal belief.

Support for Europe or not is a pretty fundamental thing as it effects the fabric of a country. If you don't believe the democratic outcome of elections though you could always look at single issue polls which show the French do overwhelmingly support the EU.

Even right now, when support for the EU is at an all time low, most member nations state they want to stay in. All voted to enter it in the first place, every single one of them in a membership referendum, even the UK which is the most eurosceptic there is and most likely to have a referendum to see if they still want to stay in.

It doesn't really matter how you twist it, how you try and use misdirection to move the focus elsewhere, you're wrong, period. Sucks for you that you're a eurosceptic who can't impose his will on everyone else, but I'm glad about that, I don't really have time for dictators.

Re:Trumping laws

[Pieroxy]

Ok, I'll answer quickly:

- I'm not a Euroskeptic and I do support Europe
- YOU made the point that since the parties in power support Europe THEN the people voting for them did, hence implying the voters could not be in disagreement over a point of the program of the people they voted for. Hence my 100% which YOU implied and I did not made up as you claim.
- I don't remember ANY referendum in France asking: Do you want Europe or not. I cannot say about other countries but I very strongly suspect there was very very few.
- I didn't twist anything, I just pointed out how YOU used misdirection with your so called "You voted for them hence you agree to everything they are doing"

Re:Don't expect to lose the tax

[wierd_w]

Are you sure? Last I heard the RIAA was simply pocketing the money, and using it to fuel lawsuits. As far as I know, the actual artists get dick. Raw dick. Up the ass.

Switzerland

[macraig]

Switzerland already has an opinion in the matter. It's legal to possess any copyrighted material when its use is strictly personal and not for profit. Have I misunderstood what I read? If it's true then Joel Tennenbaum couldn't have even been sued in Switzerland. Is Switzerland considered a socialist nation? That is certainly the most socialistic interpretation of fair use I've seen. I won't move there just because of that, but damn I wish my country was that reasonable about it.

Re:Switzerland

[Barnoid]

Note that providing copyrighted material is illegal, only possession (and downloading) is legal.

Of course, the USo*AA didn't like this and have put Switzerland on the 2012 International Piracy Watch List (http://arstechnica.com/tech-policy/2012/09/congressional-report-adds-italy-switzerland-to-piracy-watchlist/). Switzerland took the spot of Canada after they changed their laws to the liking of our *AA overlords.

Re:Switzerland

[macraig]

The ARSTechnica article would have been where I read about Switzerland. Thanks for remembering it.

Re:Switzerland

[wierd_w]

Can't somebody just firebomb the HQs of these asshats? This sort of shit is getting into the "gonna create domestic terrorists" arena.

Seriously. Over collections of 3 to 6mb files?

At RIAA prices, how many dollars per electron is that?

Re:Switzerland

[TheGratefulNet]

At RIAA prices, how many dollars per electron is that?

that's one way to spin it, I guess.

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

Re:Switzerland

[mdragan]

How can you call lax copyright laws socialist? In a socialist system you have more protection from the government, not less. Plus copyright law creates monopolies and that is a problem in a capitalist system, but not in a socialist one.

Re:Switzerland

[ais523]

Switzerland is a direct democracy, which may have something to do with it. (Although it has a reasonably normal sort of democratic government, laws can also be passed via a petition followed by a referendum.)

Re:Switzerland

[Kirth]

You misunderstood. Copyright is the right of the author to decide how, when and to what conditions he wants to PUBLISH. Nothing more.

And Switzerland happens to be one of the countries where that is STILL true. The Netherlands also. Germany fucked it up, with some wishi-washi "illegal source" bogus, which nobody can verify. Some other countries might also have been subject to MAFIAA pressure and changed it.

And this has nothing to do with socialism or fair use -- fair use is ALSO about PUBLISHING, not about downloading or possession or whatever.

Dammit, I can't believe how brainwashed everyone already is to believe copyright is suddenly about downloading (which it never was).

Re:Switzerland

[Kirth]

Actually, not really. Because that copyright-law DID NOT EVER contain any phrase which made possession or downloading illegal, except for software (introduced in 1986 I think). Well, maybe the direct democracy has helped to retain the status quo; but the idea that possession or download of a copy of something must be "illegal" or something like that is entirely NEW and totally RADICAL and EXTREMIST.

Re:Obviously

[davidwr]

Why do you think powerful people wanted an EU in the first place? It wasn't for a warm feeling of friendship and togetherness.

History just called and wants credit:

Why do you think powerful people wanted a stronger federal government to replace the Articles of Confederation in the first place? It wasn't for a warm feeling of friendship and togetherness.
- Anonymous Pamphleteer, United States, circa 1791

Re:Don't expect to lose the tax

[wisnoskij]

Ya, the artists get nothing. But that does not change the laws effects on the rest of us.

Copy "right" is a feudal concept

[aNonnyMouseCowered]

"Is Switzerland considered a socialist nation?" First, I doubt whether Switzerland's opinion matters when the country's not even a member of the European Union. Second, what makes you think that copyright is inherently capitalist that having liberal copy laws makes that country socialist? Copyright is neither socialist nor capitalist. In fact, copyright is closer to feudalism than to either econo-political systems. Copyright dates from the time when absolute monarchs would grant subjects what a monopoly on certain fields. Perhaps a knight would gain control, if not ownership, of some tracts of lands in exchange for serving in the king's army. Notice how copyright and patent holders are supposed to receive "royalties"? Copyright, or at least the version that says "All rights reserved", is one idea that should have gone out with the divine right of kings.

Re:Copy "right" is a feudal concept

[macraig]

Second, what makes you think that copyright is inherently capitalist that having liberal copy laws makes that country socialist?

I don't think that, but millions of other people would.

Re:Copy "right" is a feudal concept

[Teun]

Switzerland is , like for example Norway, not a member of the EU but has signed so many bilateral treaties with the EU and EU member states that they've effectively become a follower of EU regulations without having a seat at the negotiation table.
That's why it's always fun to read rants by anti EU activists using these countries as examples that you can have a good life outside of the EU (or euro).

Re:Don't expect to lose the tax

[Anonymous Coward]

As far as I know, the actual artists get dick. Raw dick. Up the ass.

You're incorrect. Artists get DRM-enabled dick up the ass. Could you imagine what the availability of raw dick would do to dick sales?!

Of course they are going to say its illegal

[Snaller]

As with all huge unions its all about greed, and making money. Voters be dammed.

Re:Of course they are going to say its illegal

[Xest]

Except the EU has for the most part produced and enforced laws that are actually better for the average citizen than the laws wanted by their constituent nations. That's certainly true for the UK - I can't legally be forced to work more than 48hrs a week through threat of punishment or even losing my job by an abusive employer thanks to the EU, but the Tories and Labour would both like it if I could be forced to work 100hrs with no recourse.

The reason the EU often does a better job than national governments is that the European Parliament that votes on these things:

1) Is elected proportionally, and hence directly reflects the interests of the people in equal proportion

2) Consists of representatives representing many different cultures and areas of society meaning that lobbyists struggle to gain a foothold as they can't just go after one party and pay them off to get a law in their favour, but must lobby half of the representatives in Europe, which is prohibitively costly for almost all companies in the world

3) Similarly to the point above, representatives exist in multiple jurisdictions such that the media also can't unduly influence things because no company has full media monopoly across Europe. Murdoch largely controls the mindset of many of the drones who vote British elections for example, but has pretty much zero influence in much of the rest of Europe. This is why Murdoch and his empire have invested so much in defaming Europe and pushing the idea suggesting the UK needs a referendum - because it's a threat to his control over our country.

It's not perfect, the European Commission doesn't have at least the first two protections, meaning it is trivially lobbyable and controllable, but it still needs the support of the European parliament to succeed.

Honestly, if there's one political institution in Europe that IS accountable to voters, it's the European Parliament precisely because there is little room for lobbyists to fiddle things or media to unduly influence the overall makeup of the parliament - it can corrupt small fractions of it, but that's not enough to change things.

Re:Don't expect to lose the tax

[AK Marc]

Like the phone tax in the US for repaying war debt that lasted 100 years past the end of the war debt? It'll never go away.

Re:Don't expect to lose the tax

[sumdumass]

We have some of the same taxes in the US. Ever wander what was so special about movie DVDs and Music DVDs that made them more expensive then their data counterparts? And no, the Best Buy floor walker excuse of the music CDs being manufactured to provide better audio is not a valid reason.

The blank media tax does not make distributing copyright protected materials legal by any stretch. DMCA type legislation would still fit in there.

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:Wouldn't It Be Funny...

[wierd_w]

No. You would have to exterminate *all* life on the planet to comply with such a law. Microbes copy themselves like clockwork. The dna in living things goes through a rythmic dance as cells divide, being copied as it goes...

No, to fully enforce such a law, the earth will have to be made to resemble venus or mars. No living things, not even microbes, could be allowed to remain.

Re:Wouldn't It Be Funny...

[silentcoder]

>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.

Just so long as I'm not in the the tribe with the one allowed copy of skirts.

I lol'd at your joke (hence my continuation) but do realize though that in practise pants (and skirts) would not be affected. Those have no laws over reproduction even today. You cannot copyright a fashion design, or patent one, or trademark one - they are explicitly excluded under a class of goods that are "basic requirements of life" - along with things like recipes (because food is a basic requirement) (you can copyright the pictures in a recipe book - but not the recipes themselves).

Re:You conflate Copyright and Unions?

[BitterOak]

I think he meant the European Union.

This actually can be fairly easily solved....

[mark-t]

... by making mere possession of any infringing copyrighted work an illegal act, much like possessing counterfeit currency is illegal. If the source material was infringing, then any copies made of it are also infringing. No ambiguity. Downloaders would thus obtain content from territories not subject to the same laws as the downloader entirely at their own risk. They either must be prepared to gamble that the site they are downloading from wouldn't be breaking the law if it was domestic, or else they must take pains to really educate themselves to discover how to tell if a particular source is legitimate or not.

Of course, one can probably still just always claim they didn't know that the content was infringing if they were caught downloading infringing content, and assuming that the excuse worked, about the most that would happen is that they'd simply lose access to the content... and much like counterfeit currency, entirely at their own expense. Although to be fair, I think it's unlikely that this excuse would keep working repeatedly, without regard for circumstances.

Because of course, if someone downloads some content off of, say, pirate bay for example, and that they don't know for a fact is being distributed through that venue legally, then there's a pretty darn good chance that it's infringing, and anybody who even knows enough to be aware of places like that also has a pretty darn good chance of being aware of that fact. And to be fair, I'd dare say that 99.99+% of all the legal content you can get off of a place like pirate bay is just as easily acquired (even as torrents) from other, much less dubious sources. So really, I'd expect that claiming that one didn't know that infringing content obtained from such sources was actually infringing has a chance of being believed that is probably very very close to zero.

Re:This actually can be fairly easily solved....

[Havenwar]

On the other hand say places like youtube, where there is plenty of infringing material and plenty of non-infringing material and no way for the regular person to tell them apart, would make your idea hugely problematic, and would lead to a vast amount of "accidental criminals". For example I regularly check out music videos on youtube. Some of them are put up by the artists, some by their labels, some by aggregating services like vevo or whatever their role is, and some by fans. Some of these aren't legally uploaded, other's are. It's not my place as a viewer to know the difference, because that would require me to actually read the contracts between each artist and their label and their distributor and so on...

This example extends to most things. I can't possibly know the exact copyright status of each individual thing I see on the internet. Some books are in the public domain in some countries, yet not in others. How am I as a reader supposed to know the difference? The site can even correctly claim that it's in the public domain, and yet it wouldn't be a legal copy in my country, or some other country, thus by following your proposition making me a criminal.

To put it to the test, all you have to do is understand that if the end viewer is supposed to be guilty of copyright infringement for simply possessing a copy of an infringing work, then there has to be a reasonable expectation that the person can find out if it's infringing. Now tell us how you'd go about finding out if any part of this discussion is copyrighted, and who exactly owns that copyright, and if their copyright agreement allows you to make a local copy of it. Then do the same for something more realistic, like a random video on youtube, a random search result in google, a random picture on flickr.

Re:This actually can be fairly easily solved....

[silentcoder]

>Some of them are put up by the artists, some by their labels, some by aggregating services like vevo or whatever their role is, and some by fans. Some of these aren't legally uploaded, other's are. It's not my place as a viewer to know the difference, because that would require me to actually read the contracts between each artist and their label and their distributor and so on...

That's not even counting derivative work issues. Some are fair use, some are not. All affect copyright but only some are illegal (where there isn't consent).
Weird Al loved a fan music video of "white and nerdy" so much that he massively promoted it. Blizzard actively encourages machinima using WoW models - to the point of having a yearly competition for the best such work that they sponsor and give prizes at. So clearly these works are legal - even though they use copyrighted works. Those copyrighted images are actually even grayer in themselves since blizzard actually allows you to copy the game and makes it available for free download (their revenue is subscriptions - not game sales in this case).
So clearly many mashup videos are in fact legal - but many others are not. Parody's are always legal (fair use exception) but how many copyright-bots wouldn't be able to tell you changed the lyrics ? What about examples where the parody doesn't involve a change to the MUSIC but to the acompanying video (compare the missheard rammstein lyrics videos on youtube with the deliberately wrong but sound-alike subtitles).

And those are contrasted on the other extreme by mothers getting sued for putting up a home video of their three year old dancing to a prince song - because you can hear the radio playing the prince song in the background.

This is seriously complicated stuff. Actually complying with copyright law is no longer POSSIBLE. Not for ANYBODY who is online at all.

It just cannot be done. Which is prove enough that it needs a reform. The law is supposed to try and force criminals to become honest men - it's not supposed to turn all the honest people into criminals.

Re:This actually can be fairly easily solved....

[mark-t]

Warning.... a large block of text that may be subject to a tl;dr follows.

On the other hand say places like youtube, where there is plenty of infringing material and plenty of non-infringing material and no way for the regular person to tell them apart, would make your idea hugely problematic, and would lead to a vast amount of "accidental criminals".

This is true... but at least that's a plausible explanation that is likely to be believed. Youtube has a sufficient quantity of legit material that unless something is pretty obviously a copy of a known copyrighted work, and being distributed by a username that doesn't readily map to an entity recognized to be authorized to distribute such a work, that there would be no compelling reason to hold a downloader criminally accountable for downloading infringing material from that web site (although if caught, they would still lose it, at their own expense)... as long as the circumstances behind it were such that it's genuinely believable that most people really wouldn't have known the difference.

And so, like counterfeit currency, "accidental" possession would not actually be criminal. Circumstances behind how it came to be in one's possession could be examined to determine whether an excuse for not being aware of its infringing nature was plausible or not.

I can't possibly know the exact copyright status of each individual thing I see on the internet. Some books are in the public domain in some countries, yet not in others. How am I as a reader supposed to know the difference?

You educate yourself with regards to its status in your own country. If it's not copyrighted where you are, then it's fine to download. If you still can't figure it out, and you want to download it, then you do so at your own risk, but if the circumstances are such that it is that difficult to tell whether or not it is copyrighted, then if it turns out to be infringing, you've probably got a pretty believable excuse for not knowing that it was, and if you are caught, you'd likely pay no penalty beyond losing the content at your own expense. Such an experience, however, would likely be an educational one, and you might be in a better decision to make wiser choices about what content you decided to obtain in the future.

To put it to the test, all you have to do is understand that if the end viewer is supposed to be guilty of copyright infringement for simply possessing a copy of an infringing work, then there has to be a reasonable expectation that the person can find out if it's infringing. Now tell us how you'd go about finding out if any part of this discussion is copyrighted, and who exactly owns that copyright, and if their copyright agreement allows you to make a local copy of it.

If you are located in North America, for instance, then it is. My quoting of your comments in my reply to you are consistent with the notion of fair use, since they are contextually relevant to what am saying in order to reply to the very comment. Specifically, you own the copyright on the portions that you wrote, and the portions that I wrote are copyrighted by me.

Then do the same for something more realistic, like a random video on youtube

The creator of the video owns the copyright. In the case of youtube, and for a video that was not obviously infringing, it could probably generally be presumed by a downloader that the uploader of any video actually had permission to distribute it (since that is part of youtube's terms of service that allows one to publish a video on there in the first place).

a random search result in google

I would expect that to fall well under the notion of "fair use". They are facsimile reproductions that (ideally) refer a person to an actual copyrighted work, and are no more infringing on the copyright on that work than a person wh

Re:This actually can be fairly easily solved....

[Havenwar]

Well, we're of diametrically opposite opinions here, so there's no chance of finding common ground. I'd say however that our core disagreement stems not from any of the things you dove into, but in the very last paragraph. You claim these are border cases. I respectfully disagree. I think a reasonable view of the internet is that the majority of things you find there can not easily be determined whether it's legally reproduced or not. You speak about bordercases, I consider those cases to be the bulk of the paper, while the clearcut cases are in my cases the fringe and unusual ones.

You also fail your task to determine the copyright status of the conversation. No, I'm not american. You made an assumption, which casts your conclusions in doubt. The only way the proposed system could work was if there was less unclear situations than clear situations, and that is simply not the case. For a video that was not "obviously infringing" you say. Again, subjective measure. While we can probably take a guess that a full length feature film is not legitimately uploaded, it's far from a foregone conclusion. Likewise there are all the minor clips from tv-shows and such, which may or may not fall under fair use depending on the jurisdiction they are judged in and the exact status of the copyright from the start. Same goes for anything with a soundtrack on it, unless you know the exact copyright status of the song you can't go making assumptions. I for one am not a great fan of music and so most of the background music I wouldn't recognize - yet it might be criminal not to by the proposed scheme.

The fact that it wouldn't be "normally punished" is not in any way a defense of the plan. When it comes to money there is a clear expectation that it's hard enough to fake that the number of fake notes are incredibly small, thus making this illegal to get them out of circulation makes sense, and can be done with minimal impact to the general population. Especially since hard to fake also means that most of them are fairly easy to spot. The proposed idea on the other hand targets the majority of material available on the internet, is incredibly difficult if not impossible to follow for anyone. To use your own simile, it would be like allowing people to use any currency from any country in the world seamlessly in any store, yet still expect every person to know if any given bill is fake or not. Since each country have different rules it would also mean you'd have to know which country each store was connected to (not always so easy), because if you paid with a bill that particular country didn't like then they'd just take it from you, with no explanations, even though it would be fully legal in the store down the street.

I'm not going to touch whether piracy is "right or wrong" or anything like that, because it's really irrelevant to this discussion. This is about any random joe surfing the internet and saving a picture from the web. This is about your mother forwarding cat pictures. I'd say the only good thing about your idea is that it would kill all memes since it's 100% copyrighted material.

Re:This actually can be fairly easily solved....

[mark-t]

The fact that it wouldn't be "normally punished" is not in any way a defense of the plan.

Considering that's how the law ordinarily works in other circumstances that I was trying to draw analogy, I would disagree with that assessment.

If you try to spend a counterfeit dollar bill that you thought was genuine, for instance, then you're not actually punished for pushing counterfeit currency, even though if you *HAD* known it was counterfeit, you would be guilty of a very serious crime. Ignorance of the law is not an excuse to break it, but ignorance that a law is even being broken in the first place, in cases where another ordinary person in the same circumstances could have just as easily been unaware of such lawbreaking, seems to be perfectly reasonable grounds to not be punished for it.

You could, I suppose, compare it to the notion of plausible deniability, if you wanted. Because in general, if you genuinely do not have any *REASONABLE* way to tell that something was not right, then you shouldn't be expected to realize that it could be wrong. You might, however, still face some consequences for it being wrong... although those consequences would not be as severe as those you would face if you knew it was wrong beforehand.

Re:This actually can be fairly easily solved....

[Havenwar]

The problem here still being that there would be more "fake currency" than "real currency". Your premise is still based on the idea that people have a reasonable expectation of being right more often than not, and that is just not the case. As it is you stand maybe what, a one in a million chance that the bill you accept is fake. Does it make you check it carefully? No, probably not, unless you have reason to do so. It's a reasonable expectation that people can spot the crudest of fakes easily, and that the ones that are hard to spot are so rare that it's okay to leave it unpunished.

On the other hand when you have say 90% of all bills are fake, or half, or a quarter... Heck, let's say one in ten bills are fake. Considering people typically use hundreds of internet spread media on any given day that still means they would be breaking the law in ten percent of the cases. Anyone who was paranoid enough to careful check every single item before saving/sharing/downloading/using for all national copyrights in the country they are from, in the country the webservice is from, and in the country the copyright holder is from, would simply be so overwhelmed with extra work that all sharing of information would effectively seize.

But it wouldn't be normally punished, right? Fine. So then what's the incentive not to do it? Why is the law there at all? So they can bust just the people who did wrong in a way they didn't agree with? So you mean to say it would be one of those laws that would make everyone a criminal, and allow the people in charge to press charges against only the people they had other reasons to dislike, be it political or personal or whatever.

Unless the vast majority of the lawbreakers are intentional such and can be prosecuted as such, the law is pointless. If most of the people who would be breaking the law had no idea, had valid excuses, and would "normally not be punished", then the law would only be usable arbitrarily, which would be contrary to the concept of justice.

So if you want to argue that the idea is sound, you'll have to argue that the average user, whether 13 or 65 years old, whether tech savvy or not, whether domestic or foreign, has a reasonable possibility to know whether the item they are looking at is infringing on any copyright, anywhere in the jurisdictions it touches (source, server, recipient). I claim that's not a reasonable expectation due to the anonymity of the internet, the multitude of jurisdictions material can be affected by, and the differences in laws in those jurisdictions.

Do you or do you not have an argument for how you could expect normal users to feasibly find this information about some random picture/video/text that they find on the internet, and have no prior knowledge of source or creator or companies involved? (Which covers most material on the internet).

Re:This actually can be fairly easily solved....

[david_thornley]

Except that that doesn't work. I have, at home, numerous files of copyrighted material that are not freely distributed. As it happens, I have legally purchased them from people I believe had authorization to sell them. Many of these are straight digital downloads, unaccompanied by any paperwork (although I suppose the downloads could have included a license, I could fabricate one easily if I were dishonest). For some of these, I'm pretty sure that the places I bought them from still have records of the transactions, but there's other places that I'm pretty sure don't keep records. In other words, there is absolutely no way to verify if some of my files are infringing or not. For others, all it takes is a company to go out of business or lose records to remove all possible verification.

Since nobody keeps evidence that they downloaded material without copyright authorization, there's no way to distinguish between my legal copies and somebody else's infringing copies in a court of law. Either I live in fear of the copyright police for completely legal actions, or you can't convict anybody.

This also assumes the authorities can find the files on my disk drives, which means that I've provided somebody with enough evidence to convince a judge to order somebody to search through my file systems. Realistically, this is highly unlikely to happen unless I do something like torrent and get caught, and we're right back to the status quo of suing uploaders.

The comparison to counterfeit money doesn't work. In the first place, counterfeit money is physically distinguishable from the real thing (or so one hopes), while a legal copy and an infringing copy of a file are identical. In the second, it isn't generally illegal to possess counterfeit money, just to make it or attempt to use it as if it were real. Possessing a lot of it can be evidence of making or trying to pass the stuff, but it is usually legal on its own.

Re:This actually can be fairly easily solved....

[mark-t]

I would argue that the only reason so much of the content on the internet is infringing right now is primarily *BECAUSE* there's no real consequences for people who download it, even while realizing its infringing origins. Or do you genuinely believe that most infringing content is downloaded without any realization whatsoever on the part of the downloader that the originator did not actually have any permission to distribute such copies?

Because I don't. I believe most people quite readily recognize infringing content for what it is... even if they do not openly admit as much. They simply do not care, simply because there are no consequences for them that would require paying attention to that detail to be important for them. Admittedly, perhaps, this belief is based on the personalities of all the people that I have personally met who have, at one point or another, implied while making conversation or sometimes even openly admitted that they download movies or songs off the internet, and that, when asked about it, they also admit to knowing that they didn't download an authorized copy. This set of people doesn't even intersect the set of people I consider to be friends, but simply people with whom I've happened to have conversations that somehow got onto the topic of media, so I don't think that my own personal affiliations are biassing the results in that direction.

(Although, I admit that I cannot rationally preclude the possibility that may only be because my friends know me well enough to realize that if they were to ever admit something like that to me, they'd get more than an earful about it, and I'd make no apologies for that fact).

But would what I described above eliminate piracy? Of course not. It might, however, at least bring it down a few notches.

Re:This actually can be fairly easily solved....

[mark-t]

No... all it requires is that the authorities are able to identify where and when you are obtaining what content, to the extent that you've done so in the clear (which is most online infringement). If you downloaded infringing content, then you possess infringing content. Simple.

Or... if you got it another way, sneakernet or what have you... that might not be observed by anybody else, but such distribution mechanisms do not scale like Internet distribution does, and could even push back piracy frequency to pre-napster levels.

And let's face it... if what I was suggesting was such an abysmally bad idea, there'd be no particular reason for those who might be opposed to it to actually object, or try to argue with me... Since it would fail anyways. The notion that innocent people could get prosecuted fails to account for the fact that I had suggested that the circumstances actually be examined for each case. Finally, of course, the fact that the system is not perfect and will not catch everyone should not preclude its adoption based solely on the notion that must be unfair. If it is unfair to anyone, it's only unfair to people who can't figure out how to not get caught. This is pretty much how practically all law normally works anyways, so I fail to see any reason to make the objection in the first place.

And the consequences that I see happening as a result are as follows:

1) Smart pirates figure out ways to hide their online activities well enough that they don't get noticed. This means that it must, by definition, fall below the legal radar, and there's nothing that could ever hope to be done.

2) Stupid pirates get caught, and pay the price. Frequency of piracy drops.

3) People resort to other means of piracy, which do not scale. Overall frequency of piracy drops.

4) People start to educate themselves on how to tell infringing works from non-infringing works, and try to make smarter choices about whether or not content can be trusted to be non-infringing. Frequency of piracy drops.

3 out of the above 4 outcomes have reduced piracy rates. The remaining one does not, but, to be honest, I sincerely don't think that most people would fit in that category.

Re:This actually can be fairly easily solved....

[Havenwar]

You still haven't answered the question: How would a normal person find the status of the copyright of anything on the internet? Remember, this is NOT just about the latest movies and songs, your idea makes EVERYTHING illegal, tumblr, flickr, youtube, forwarded cat-mails, The pirated material coming from obviously pirated sources might be the bulk of actual internet traffic, but it's a fringe case in your argument since it is as you say pretty clear-cut. I'm not arguing that. If you go to the piratebay, most people aren't expecting that it's legally obtained copies.

Although I'll add that a surprising number of people actually do believe it's fully legal to download it, even in countries where it isn't, but that's a completely different argument.

Your problem is still trying to defend how Gramma is going to know the copyright status of the pretty cat pictures she's downloaded. Were they professionally taken, or taken by a skilled amateur? Who did it? What country are they from? Did they release it with limited rights, a creative commons license, or did they just "put it up there" without ever specifying anything? On what server in what country did they originally post it? Because that matters when it comes to copyright, if you legally publish something (i.e. you are the creator/copyright holder) without mentioning a license, in some countries it's considered released to the public. How will gramma know the difference? How will gramma know the difference between this and piratebay? How will gramma know the difference between piratebay and using bittorrent to download war of warcraft patches or linux isos?

Those are the BULK cases, the unclear ones, the majority of use of the internet today by average people. Just regular use, facebook, tumblr, youtube, and so on. I repeat: your idea has no merit whatsoever until you can argue that there is a reasonable expectation that these people will be able to tell the origin/license of any random catpicture or quoted blogpost they come across.

As for whether your idea would eliminate piracy, that's also a different argument - I posit it wouldn't make a dent in it. I come to this conclusion because of two things.

First, real data from countries where anti-piracy laws have been introduced shows a temporary drop and then a return to previous levels. Unless you make people actually believe pirating is wrong, they'll just learn how to hide it better, or take their chances. It might make for less cat pictures, since gramma is more worried about shit like that then an actual pirate, but that's striking the "innocent" piracy that you claimed wouldn't be punished rather than the wilful piracy.

Second, since nobody would know HOW to follow the law, and since accidental missteps wouldn't be punished, nobody would have a reason to care. The person that downloaded a knowingly pirated song would know full well that he/she had also downloaded a dozen videos of youtube that day, and that it was likely a few of them were infringing as well. Since everyone is likely a criminal, why would they bother trying to avoid being one? No, they'd just burrow a bit deeper, hide it a bit better perhaps, use some plausible deniability techniques.

So to return to the issue: do you have an argument for how gramma will know, or don't you?

Re:This actually can be fairly easily solved....

[Havenwar]

Actually he makes a good point. I sure have a lot of digital media - legally purchased at some point in the past 15 years - which I have no record left of where I got it. In fact, in most cases I could not even point out what store I used, exactly. I could offer up best guesses, but since several of these outlets have since closed or been through multiple mergers, or simply thrown their data away since they don't need to store purchase data indefinitely, it would be impossible to prove that these are in fact legally purchased copies, or if they were bought from an illegitimate vendor.

You said it requires that "the authorities are able to identify where and when you are obtaining what content" - I argue that most users have content that's impossible for, digital or even physical. My friend has a DVD collection of about three bookshelves worth, I would challenge any authority to track down where he bought every obscure disc of some long since forgotten film or series. The same goes double for digital material, with the speed that online retailers of such churn over, merge, and the fact that they are often located in various countries and so on... The material might have been legally sold yet be infringing when it arrives, or have been infringing when it was sold but be legal when it arrives. I know I have legally obtained MP3 files that I certainly couldn't remember what the exact source was, whether I ripped it myself or bought it online.

Can you show me documentation for the exact source of ALL media in your possession? Pictures, books, audio, video? Do you honestly believe that most people could? Or could reasonably be expected to keep such documentation? This is not high value items, nobody wants to keep the receipt indefinitely for something that costs like a good dinner.

Re:This actually can be fairly easily solved....

[mark-t]

I don't understand how....

The pirated material coming from obviously pirated sources might be the bulk of actual internet traffic

... and ...

but it's a fringe case in your argument

are not entirely mutually exclusive. Either it's the bulk of actual piracy, or else it's not.

I was suggesting that it is, and that we wouldn't really have to worry about the ambiguous remainder, because if that ambiguous remainder was really all of the online piracy that there was, then I doubt that it would be seen to be as dangerous a threat to copyright as, for example, people privately making copies of copies for of content on burnable dvd's or usb drives, and giving them away to their friends would be.

And while I don't want to say that's not a problem at all, it's my position that because such a problem does not readily scale the same way online distribution does, it's really not as serious a problem, in the long run.

Your proposed case of people learning how to hide their online piracy better is highly plausible, but I do not think that a majority of people who fit into the unambiguous piracy case are genuinely savvy enough to actually know how to do this. Slashdot users and the like are not remotrely typical, and I'm quite aware that people with enough technical competency could continue to get away with breaking the law in the case I've been describing. But such technically competent people are also quite few compared to the number of people that knowingly download pirated content without fear of consequence. If I'm wrong about this, then at the very least, the stupid ones will still be paying a penalty... and the situation could be reexamined in a few years to see if it can be improved, if online piracy continues to be a major problem. So even the very least that could possibly happen is that the Internet gets smarter.

But in the end, perhaps if I wasn't trying to offer any real argument for any of your ambiguous cases, it's because I've been suggesting that they aren't the bulk of piracy anyways. If we are unable to agree on that premise, then there's not really any point in discussing this further.

Re:This actually can be fairly easily solved....

[mark-t]

You don't have to justify the content that's already *IN* your possession, any more than you might get a ticket for speeding last week when you weren't actually caught then (even if you were), just because at a random roadside drunk driving check, you happen to get pulled over while you are driving a sports car that is perhaps fairly well known for being driven like a racing vehicle on highways.

Re:This actually can be fairly easily solved....

[Havenwar]

Actually since your argument was making POSSESSION illegal, You do indeed have to justify it.

Re:This actually can be fairly easily solved....

[mark-t]

Yeah... except that if it's already *IN* your possession, then it can't necessarily be traced back to being obtained from infringing content in the first place. Whereas content that one is *IN* the process of acquiring can be.

Re:This actually can be fairly easily solved....

[Havenwar]

Exactly. Which is why making possession illegal is completely ridiculous. You're talking about making the acquiring of it illegal, and to my knowledge it already is in a lot of places. Possessing something is something you do from the moment you get it into your possession, to the moment you remove it from your possession. If you made possession illegal that would cover that entire time period.

Re:This actually can be fairly easily solved....

[mark-t]

No.... possession could still be illegal. It's just that it may not be generally possible to verify that a law was ever even broken in the first place if the actual acquisition of the infringing material was not ever observed.

To draw a comparison to another law, its also illegal to simply possess stolen merchandise (although there is not any legal punishment if a person has reasonable grounds to claim they did not know it was stolen, but even then, they do still lose the merchandise, and that loss is at their own expense).

If, by some circumstance, you acquire something stolen, then once it is among your own possessions, it may very well no longer be readily identifiable to anyone else as stolen property, unless there was some distinguishing factor that could make it stand out as such. But even that doesn't mean that the stuff isn't actually stolen anymore, and in particular, if it were to ever actually be correctly identified as such, there could still be possible consequences for you, unless you have a plausible explanation for not realizing its status (but even then, you would still lose the merchandise, at your own expense, and without compensation).

And we're talking about stuff that *could* be objectively identified as contraband in the first place. If it's not objectively identifiable as such, then there would be no reason to presume that it is. In general, as I said above, that would tend to entail actually catching a person in the act of acquiring it.

That doesn't mean that if they've acquired it without getting caught that they wouldn't be still breaking the law by keeping it.

Re:This actually can be fairly easily solved....

[Havenwar]

Except the law you compare it with is about stolen property, where an object is lost for the owner and so can be returned. The law you propose is about intellectual property, where no loss has happened and so the item will simply be destroyed, at no gain to anyone.

Also, again, stolen property is a very small part of the property on the market. Meanwhile items with unclear copyright is the absolute majority of the content of the internet. I'm not saying strictly pirated things here, but things where a private person can't be expected to know the copyright of.

And you still haven't addressed this.

By your idea every person who browses the internet would be a criminal just by the fact that their web browser caches the data, but lets assume all jurisdictions are savvy enough to ignore this (which we know they aren't from previous issues about cached data, but let's pretend.)

Okay, so now the number of criminals is limited to anyone who saves any information from the internet, ever, as well as anyone who ever reblogs or forwards pictures, and so on. So basically - the vast majority of people on the internet.

Oh, but they can avoid being criminals by only saving or sharing information where it's absolutely clear to them what the state of copyright is! Yes? Yes!

No. There is almost no such data on the internet. The best you can do is trust any copyright notices attached to the media, and given that these are typically just baked into the template of the site/blog/whatever, it's very rarely accurate. So pretty much all movement of media on the internet would have to seize in order to comply with your proposed law, which just isn't going to happen no matter how you twist it. It isn't reasonable, for one, and it isn't just.

Any law that makes everyone (or a vast majority) into criminals simply because they do not have a reasonable chance to know when they are breaking the law, is an unjust law, and a total no-go. Surely you must understand that?

Now can you actually propose an argument for how people are supposed to know the copyright state of the media they see in all countries that are affected? You sound like a perfectly reasonable person aside from the fact that you blindly refuse to address this simple and pivotal point that your entire proposal stand and falls on.

Re:This actually can be fairly easily solved....

[mark-t]

You know, even as I was writing my last comment up, I was thinking I might need to put some sort of disclaimer in there to note that I was simply drawing an analogy from another law... not that I was saying that copyright infringement was like stealing physical property. I had presumed it should be unnecessary... that the fact that I had even literally said that I was making comparison to another law should be enough for a reader to draw the conclusion that I meant what I was literally saying... and merely comparing the laws for their similarity, and not suggesting the different activities covered by the different laws are somehow the same thing. My bad, I guess.

However...

I've been asserting that most online piracy happens to utilize data whose origins are not ambiguous. In my own experience with people I've encountered who I've discovered, either in casual conversation where the subject of online media has come up, or by them openly admitting as much, that when I've inquired for more details, they may (perhaps reluctantly) admit that they realize that the source of where they obtained the content from was not an authorized source... their justification, however, is often not much different than "everybody does it", or "it doesn't hurt anybody", and *NEVER* something along the lines of "I didn't know its copyrighted status", or anything that might even be considered equivalent to it. At most, they might not be aware that downloading such content might have some ramifications on the overall value of copyright, but the bulk of pirated content seems to be on recently released and commercially available materials, either software, movies, or music, where the intellectual property holder is generally quite well known, and there is no cause for ambiguity.

So I know that my suggestion depends on the notion that at least a majority people who commit piracy realize the infringing nature of the work they are getting a copy of. If this notion is wrong, then I also know that what I've suggested wouldn't accomplish much at all. My own encounters with people who I've discovered do such things suggests that it is not, however.

Re:This actually can be fairly easily solved....

[Havenwar]

But these encounters are about things they knew were wrong. I.e. stuff they got off piratebay, or so on. They would never even have considered mentioning the cat pictures or blog posts or youtube videos that they had no idea was infringing, or couldn't determine. They might have a vague idea that it COULD be infringing, or they might believe like I do that MOST of such material on the internet is indeed infringing on some copyright somewhere in the chain of jurisdictions it's going through.

You give the impression that you base this of a few people - or a lot of people - admitting to a few illicit downloads. That's okay, I get that you have a problem with illicit downloads. But the problem with your suggestion isn't with those people, it's with all the people who never admitted to it because they had no idea. It's with every person who has ever forwarded a funny e-mail with a joke and some pictures of a sneezing panda. You seem to be blind to the vast majority of internet use today.

Re:This actually can be fairly easily solved....

[mark-t]

I'm suggesting that infringing content that is ambiguous is not something that my suggestion even tries to deal with. Theoretically, I suppose it's possible that somebody could commit rampant copyright infringement on an enormous scale without being addressed by what I proposed simply by restricting their activities to the obtaining of such content.

But in reality, that's not going to happen. That's not what most people who download infringing content do.

Because if the only real online piracy that copyright holders had to worry about were just the ambiguous cases, the fact that people can make copies at home under an alleged "personal use" right, and then turn around and give those copies to their friends or other personal associates would probably be a *FAR* bigger deal than online piracy. Such unauthorized distribution to one's own personal network is still a problem with respect to copyright, but at least that problem doesn't scale like Internet distribution does.

Re:This actually can be fairly easily solved....

[Havenwar]

That's exactly the problem. Your proposition doesn't try to deal with it, but it makes it illegal. Thus making nearly everyone a criminal due to the sheer impossibility of knowing what is legal or not, thus making the law unjust and pointless.

And this is going to be the last I have to say about it, since this discussion has devolved into just repeating the same thing over and over again and getting no new answers.

You've got holes in your proposition: it needs to cover the entire internet use-cases, not just the fringe ones, and it needs to do so justly in a way where any individual can be reasonably expected to with some confidence determine if they are breaking the law or not. Until you've addressed those issues your proposition is dead in the water. No matter how many times you keep repeating things about fringe cases.

You can not make a law that covers everything and expect it to only impact a small part of things. You can not make a law that makes a major part of internet usage illegal and then just let most of it go unpunished. In one case the law would be unrealistic, in the other it would be uneffective and pointless, and if you address those things by enforcing it harder it becomes unjust.

Now I want you to understand that I am trying to see this objectively - I don't really take into account whether or not there is a problem in need of fixing and so on. The only thing I'm arguing about here is that you have a hole in your argument, and if you want to be able to state your argument without sounding like a fool you need to address it. With more than just regurgitating the fringe cases. They're not important. What will your suggestion do to the majority of the internet? And no, "not enforcing it" is not a solution if you want to criminalize it. Look into other laws that use non-enforcement, and look into how rare non-enforced crimes are compared to how common copyright infringement is. And no, still not talking about pirate bay here, talking about facebook walls, tumblr, flickr, twitter, imgr, 4chan, 9gag, reddit, myspace, pretty much any place where user generated content is shared.

Good night, and good luck.

Re:This actually can be fairly easily solved....

[mark-t]

This is why I compared it to not entirely dissimilar laws regarding possession of stolen property. The law does not try to deal with cases where people have come across stolen property that has not been identified as such. It's still illegal, but there is no enforcement system in place for it because the people who have it have not been discovered.

Re:This actually can be fairly easily solved....

[david_thornley]

No... all it requires is that the authorities are able to identify where and when you are obtaining what content, to the extent that you've done so in the clear (which is most online infringement). If you downloaded infringing content, then you possess infringing content. Simple.

Not that simple. If the authorities can identify that I'm downloading something infringing, they don't need to bust me for possessing infringing content. If they can't, then they can't know that I possess infringing content. (There's also the possibility that I got some sort of license between the time I downloaded and the time I'm busted, so your assumption doesn't hold.) In any event, making possession illegal accomplishes nothing that making downloading illegal doesn't, and so there's no role for your suggestion.

Notice that possession can be useful evidence of infringement, but it isn't the main crime, and adds nothing to the legal tools.

Background information

[Vlijmen Fileer]

This law is for music (and I believe movies) only. Not for software.
Further: There is a semi-government institution that collects the money and gives as little as possible of it to actual artists, while keeping millions with themselves and "rewarding" their directors big time.

Always has been legal

[Frans Faase]

Up to now it always has been legal to make download materials, as this is regarded equivalent with making a copy for private use. A right that has been well established in Dutch law for a long time. Earlier this year the House of Representatives concluded with a strong majority that this should remain legal. I think it is a rather unique situation that a Dutch lawyer is asking the European Court of Justice to judge about a Dutch law. This might have far reaching consequences, and could give rise to strong anti-European feelings, because downloading from an illegale source is very common in the Netherlands. All home media centers are equiped with applications client to automatically download movies on request.

Re:Always has been legal

[lordholm]

No, this is not uncommon if the local law conflicts with EU-wide legislation, or if the law simply omits implementing provisions in EU directives. This happens all the time, and have happened for the last 40 years or so.

In this case, the EU copyright directives does stipulate that there _may_ be compensation for private copying, and there are also regulation as to what constitutes private copying. So, the question at hand is: does Dutch law follow EU law or not. Note that national law that is in violation of EU law is invalid. This stem from the treaties, European case law and national law that does acknowledge this fact. I.e. by signing the EU treaty, EU law is Dutch law as well.

Re:EU law trumps National law?

[lexa1979]

Our governments simply try to copy the United States of America: 27 states under one single authority. Replace our EU comissioners by your lobbyists, and it's pretty much the same... They see USA as a model of perfect organization to develop and maintain the richest on top, and since we pay far too much our politicians, they're the one who want that kind of EU.

Re:Don't expect to lose the tax

[Genda]

NEW! And IMPROVED!!! DRM enabled DICK! But you can call it D-Squared! Your ass will thank you later... much later. And when its not reaming you, it can be used to unclog drains, dig post holes, and break concrete for those do-it-yourself backyard projects. D^2, for a pain in the ass that ends at your tonsils.

It must remain legal

[xenobyte]

In Denmark it has been legal for decades to make copies for personal use. You are even allowed to make copies of copy protected materials if you need to remove copy protection in order to play the material. We also have a "blank disk levy" to compensate for pirating.

Now, as the Canadian Supreme Court ruled, if you pay to compensate for pirating you're allowed to pirate. So the levy works both ways - or it would be a tax benefiting private entities as opposed to the state, which is illegal in itself.

As you pay the levy on the destination media regardless of the legality of the source material, you are of course also entitled to make copies of illegally downloaded materials. Now, the act of downloading is actually identical to making a copy for personal use, so that's actually legal if you paid the levy on the destination media. If this is ruled illegal, then the levy is illegal as well. You cannot force people to for something they don't get. Even taxes are payment for the services of the government. The levy is very specific and thus clearly illegal if downloading is illegal.

Coffee shops in the Netherlands...

[Spectrumanalyzer]

... shows that their government and people are far different from the rest of the world. As a DIRECT result of this, narcotics and drug abuse is actually LOWER in that country than the ones where this is totally illegal.

Maybe their reasoning works for software as well?

Re:Coffee shops in the Netherlands...

[cdrguru]

Please compare this to what would happen in the US should drugs be both legal and easily available. I suggest any frat party movie as a reference.

My guess is that 25% of the population of the US would behave as if it was a toga party at a frat house for a while. Then a small fraction would come to their senses and decide that this wasn't going to work as a long-term lifestyle.

I believe the only dissent is on the number that would continue the frat party after the first year or two.

We have all seen the first month of freshman class at any large state university. Somewhere around 10% of the freshman class is kicked out within 30 days, another 15% or more doesn't come back after the first semester. This is what happens when people discover a new freedom (to get drunk every day) and can't get it under control. Sure, there are a lot of people that could handle it, but so far we have chosen not to burden ourselves with the large percentage that can't handle it and would need to be taken care of. We have nearly 5% of the population as heroin addicts already that are going to be taken care of for life as it is. Do we really need to increase that number?

Am I saying that 25% of the US population are children that cannot control themselves and left to their own devices would screw up in ways that would require them to be cared for for the rest of their lives? Yes, indeed. Look at who gets elected and tell me I am wrong.

Re:Coffee shops in the Netherlands...

[Fned]

Please compare this to what would happen in the US should drugs be both legal and easily available.

Probably the same thing that happened in Portugal, which was half the previous rate of drug abuse after one year.

Re:EU law trumps National law?

[Xest]

Go away, read up on the EU, come back when you actually understand it. You wont be able to make the same rant though because you'd realise it was still completely nonsensical by then.

"Really? What the have you Europeans got yourself into?"

A representative political grouping that positively benefits member states.

"(More accurately, what have your governments got you into?)"

No, it was definitely us, we all voted for it thank you very much, because we recognised the value in it.

"Some unelected pan-government gets to write the laws, and you just have to sit there and take it up the arse?"

No, actually. You're right that the unelected commission writes the laws, but they're passed by the entirely elected European Parliament which is voted in by proportional representation making it a far more representative parliament than most other parliaments in the western world. The European Parliament which blocks/votes through laws voted in by Proportional Representation makes it a more representative view of the populace than the UK's government, America's government, Canada's government, and many others.

"The EU has made some people very rich"

It's made a lot of people very rich, but importantly it's made the EU's member states richer as a whole, it's also ensured that people across Europe have basic minimum standards in terms of rights and so forth. An employer for example cannot abusively force you to work more than 48hrs a week, and consumers are guaranteed to be allowed to get a replacement/refund/repair on goods that should last 2 years, but don't meaning that if your phone/laptop/TV/cooker/whatever breaks through no fault of your own within 2 years of purchase, you're guaranteed to be allowed to have it rectified meaning the overall standard of goods has to be higher in Europe than it does elsewhere. There are many other fine examples of the EU protecting citizens better than their own member state would by itself.

"but all this ability to legislate multiple countries is scary."

Only if you're a paranoid xenophobic nationalist kook. For everyone else it's no big deal. If it ever got to the point where it was genuinely scary then we could simply pull out, problem solved. In the meantime though, it's actually rather nice knowing there is an authority who does a better job of looking after my rights than even my own government would by itself because it's more easily influenced by vested interests and lobbyists.

Re:Mandlesons 2 million quid

[Xest]

Erm, you've got that completely backwards.

When Mandelson came back with Geffen he didn't use the EU to push those laws, he used the British government to push those laws and succeded. It was the EU in fact that raised question about the legality of those rules, and it was the EU that implemented the telecommunications act that limits how bad those laws could be.

Mandelson has had really no influence in the EU in terms of copyright laws, only in the making of the UK's own national laws.

Sorry, but using Mandelson as your argument against the EU is foolish as it does the exact opposite - it's an example of the EU limiting the ability of corrupt national politicians to limit the damage they can do in terms of harm to citizen's rights.

Levy in NL works differently

[QuasiSteve]

They levy in NL works a little differently.

The levy is compensation for making a 'for personal use' copy of other media. It's not, however, the reason that downloading is legal; it's not because you purchase 1 (one) CD-R for $1 that the law says it's now okay to download 20 movies per month. Another part of the law out of touch with reality is what makes it legal.

In addition, we have a levy on tapes, videotapes, CD-Rs and DVD-Rs (I don't recall if BD-Rs as well) but not on e.g. iPods, DVRs, loose HDDs and any and all other media that one could put 'pirated' content on as a compensation for making a private copy of the media.

So even the majority of those who do believe that downloading should be legal due to the levy are being disingenuous, considering they never even paid a levy on the target medium.

That said, two of the questions they seek to have answered is this: If copying for personal use is legal regardless of origin, must/can we have a levy on all of these media? If copying for personal use is made illegal in certain cases, must/can we remove all levies on any/some media?

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.

Re:Bittorrent uploading illegal in NL

[Anonymous Coward]

So, what will the punishment be for uploading only two fragments?

One fragment being "1" and the other fragment being "0"... These fragments are a part the digital representation of every copyrighted song known to man.

Or is there a lower limit after which fragments aren't copyrightable after all?

Re:Bittorrent uploading illegal in NL

[Crayon Kid]

I don't see the comparison with fragments of literary works as being valid. Coherent pieces from a text are usable on their own. But 2 random pieces from a movie file are useless. Can they really claim that the sharer harmed the rights holder by distributing pieces which are unusable? I just don't see it standing for one file-sharer alone, in the absence of all the others who together made available the whole file.

Re:Bittorrent uploading illegal in NL

[QuasiSteve]

Can they really claim that the sharer harmed the rights holder by distributing pieces which are unusable?

That's a bit of a philosophical question, really.

Let's say the piece sizes are 1MB each (not uncommon). Let's say this is on a movie that is 500MB. Let's further do a naive calculation and say the movie lasts 2 hours. 2 hours / 500 = 14.4s. Now let's assume assume that half the piece is useless because it's a bunch of P or B frames, but half-way in is an I-frame you can work from. I frames are bigger, let's say that takes up 25% of the piece. So 3.6 seconds of the movie would actually be playable from that chunk if you can find a video player willing to attempt decoding and playback. Can you genuinely say it's 'unusable'?
Let's also flip that around - let's say you are the only source of that piece. Without you, anybody downloading the movie will miss a 14.4s chunk of the movie - perhaps it'll even fail to play back. Wouldn't that imply that your piece is actually rather important?

But what if you're only sharing only 64kB? The odds that that 64kB also matches another 64kB chunk of a random and rights-free file - or at least not the file you would be accused of - are astronomical, but not outside the realm of theory.
There's technical hurdles there, though, as your torrent client identified the chunk as belonging to X, not Y. While you could try and use a 'the torrent client LIED!' defense, I'm not sure what NL judge would go along with that.

On the other hand, if you're asking if the rights holder is 'harmed', then there's plenty of people who will say that even if you shared the entire movie the rights holder isn't harmed because the people downloading likely wouldn't have purchased the movie anyway - better yet, some of them might be swayed to purchase it after seeing the downloaded copy and the rights holder actually stands to win from your sharing.

Good luck figuring all that out - like I said, it gets a bit philosophical (and/or academic).

But back to NL law - yes, they can claim that. Arnoud Engelfriet (who is probably as close as you're going to get to an authority on the matter) also points out that it doesn't matter that you share but one small part while others would have to share the rest; you're not allowed to upload even those parts.

I don't think 'citation' as used by Arnoud there is limited to literary works, by the way. Here's his writings on citation laws when dealing with images/video:
http://www.iusmentis.com/auteursrecht/citeren/beeldcitaat/
( Google translate makes a bit of a mess of it, but I'm sure you get the gist. )

Re:Bittorrent uploading illegal in NL

[DirtyLiar]

Can they really claim that the sharer harmed the rights holder by distributing pieces which are unusable?

That's a bit of a philosophical question, really

Judges and police tend to not dwell heavily on philosophical questions, with the possible exception of the USSC.

They both (including the USSC) tend to pay more attention to practical applications and implications than to philosophical ones.

Re:EU law trumps National law?

[silentcoder]

>Some unelected pan-government gets to write the laws,

The EU is run by a parliament - who is ELECTED by votes in all the member countries. Countries have seats on the parliament, they hold elections and citizens in those countries choose who will represent them in that parliament.

Re:EU law trumps National law?

[Ash-Fox]

The EU is run by a parliament - who is ELECTED by votes in all the member countries.

I am an European, I was never given, nor was any other common European citizen given the choice to vote in or vote out the following people who run it:

Herman Van Rompuy
Jose Manuel Barroso
Demetris Christofias
Martin Schulz

These people do not necessarily represent the interests of European people as they are unelected by the European people.

Re:EU law trumps National law?

[Ash-Fox]

An employer for example cannot abusively force you to work more than 48hrs a week

They can and it still does happen (often in Poland), please stop confusing law with reality. It's also illegal in most countries to accept bribes, yet this is common business practice in Poland (An European member state) to get things done - I suspect there are other European member states that does this too, but my personal experience does not cover the entirety of Europe.

consumers are guaranteed to be allowed to get a replacement/refund/repair on goods that should last 2 years

Not quite, some manufacturers begin their warranty the day it leaves their factory, not when the end user purchases the equipment (Seagate did this on some of their harddrive models). Had the UK kept it's original laws unmodified, this would have not been acceptable.

There are many other fine examples of the EU protecting citizens better than their own member state would by itself.

There are also fine examples of things like 'arrest warrants' that remove founding principles like Habeas Corpus from functioning in existing legal systems, leading to massive abuse, which is in my opinion, more important than a silly warranty. Or even example of overfishing and territorial hell issues caused by the common fisheries policy.

If it ever got to the point where it was genuinely scary then we could simply pull out, problem solved.

You mean like how Greece tried to pull out and then their government was replaced by a puppet? Or how Ireland kept having a referendum on laws they didn't want until they accepted the EU's proposal?

In the meantime though, it's actually rather nice knowing there is an authority who does a better job of looking after my rights than even my own government would by itself because it's more easily influenced by vested interests and lobbyists.

Cool story.

Re:EU law trumps National law?

[silentcoder]

And which one of them is the dictator who can make a law that the member countries are required to implement without having

1) The agreement and consent of the European Parliament (which you DID elect representatives to)
2) Countries possibly saying they would rather leave the union than make the law

?

Oh wait, none of them. Nobody in the EU has absolute power. Now granted the system needs some reform and improvement. The E.C. should be a LOT more democratic and have a LOT less power (ideally ALL - it's decisions should have to be ratified by the European parliament before implementation), but the suggestion that Europe is under some massive semi-world-government that they have no power over and no checks-and-balances and no vote in as the GP did is er... stupid.

Now what's REALLY scary is that I care who wins the American election in November. I am South African. I have NO vote in that election. But who wins will determine America's foreign policy. My country is officially a friend of the USA but in practise we're just too damn tiny to actually matter to them - but the foreign policy they pursue elsewhere will ultimately have a MASSIVE impact on my life (and my quality of life) - and I have ZERO power to influence what that policy will be.

Example: the day G.W. Bush invaded Iraq our fuel prices almost doubled, within a week - so did the price of food in my country (food has to be moved on roads).

Effectively, the American president has power over my life - and I have no elective power over his selection, now THAT is scary.

That's why Mit Romney scares me so much - his rhetoric about "American Excellence" is really just a thinly veiled declaration that America SHOULD rule and police the world, that it's RIGHT for them to remove other country's democratically elected leaders and replace them with brutal dictators if the leaders won't play nice with American corporations (you know - maybe actually try to pleas their voting citizens).

Frankly whether the Americans elect Mit Romney or Obama in November will probably have MORE impact on YOUR quality of life than EVERYTHING Herman Van Rompuy does over the next four years taken together.
You really should be more worried about that...

Re:EU law trumps National law?

[Xest]

"They can and it still does happen (often in Poland), please stop confusing law with reality."

The law is reality if you bother to enforce it, if people are having this forced upon them and doing nothing about it (again, the law is on their side) then that's their own stupid fucking fault. There are plenty of mechanisms within the EU for citizens to ensure these sorts of things are being enforced, and countries that don't enforce them get investigated, and fined until they do comply. It's not like countries can get away with non-compliance indefinitely unless they're willing to put up with the enforced fines or unless the populace chooses to let them get away with it.

"Not quite, some manufacturers begin their warranty the day it leaves their factory, not when the end user purchases the equipment (Seagate did this on some of their harddrive models). Had the UK kept it's original laws unmodified, this would have not been acceptable."

This is completely false, as your warranty isn't provided by the manufacturer but by the person you bought the product from. It doesn't matter what Seagate say, if you bought it 18 months after manufacture from say, PC World, then PC World has a responsibility to serve you with repair, refund, or replacement 2 years after the date you bought it. Also, the UK didn't modify it's laws, they were already sufficient to fulfil the EU's obligations on this.

"There are also fine examples of things like 'arrest warrants' that remove founding principles like Habeas Corpus from functioning in existing legal systems, leading to massive abuse, which is in my opinion, more important than a silly warranty."

Agreed, so let's point this out to our representatives and get it changed. Note though that countries like the UK have done this unilaterally with the US anyway though and with less safeguards so extradition without trial is certainly not a purely EU specific problem but a much broader issue which needs to be stopped both in the EU, and out.

"You mean like how Greece tried to pull out and then their government was replaced by a puppet?"

What are you on about? I'm not really interested in conspiracy theories that have no basis in reality, they hold no relevance to what's happening in the real world. Even the anti-bailout parties in Greece support staying in the EU, the only parties that really don't are the far-right minority groups, but the overwhelming majority support continued membership, including those against the bailout and austerity measures.

"Or how Ireland kept having a referendum on laws they didn't want until they accepted the EU's proposal?"

That's a rather odd twist on reality too. What actually happened: Ireland rejected the original treaty based on the results of a referendum, the Irish government lobbied for some amendments and then went back to it's populace after those changes had been made. The Irish public were then satisfied with those changes and voted in favour of the referendum's proposal and so it passed. Democracy in action.

If a country voted in favour of a referendum's proposal and you don't like that, then tough fucking shit. It was their referendum, they chose to vote that way.

Re:EU law trumps National law?

[Ash-Fox]

And which one of them is the dictator who can make a law that the member countries are required to implement without having

See what happened with Ireland's referendums. Don't agree? We'll keep asking until you agree!

Re:Don't expect to lose the tax

[cdrguru]

Understand that there are two types of "Music CDs":

- There are application code 01 discs that are the only discs that will work in stand-alone stereo component CD recorders. These discs are manufactured differently and there is a tariff charged to the manufacturer.

- There are application code FF discs that are just like any other disc except Memorex brands them as "Music CDs". The only difference is the branding and they cost more because, well, they cost more.

The second type are also the same as the "Photo CDs" that Memorex sells. Nothing different, just the branding.

I have not seen any "Movie DVD", ever. It might exist but again it would be only as a branding effort probably from Memorex.

No

[davidwr]

That's the point of the Constitution: It can't be changed by Congress without first changing the Constitution itself.*

You may be thinking of Article VI's "Supremacy Clause" which says that federal laws and treaties that are themselves not unconstitutional trump state laws and state constitutions:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Regarding treaties, the words "under the Authority of the United States" means treaties which contradict the United States Constitution are not included in this clause's definition of "the supreme Law of the Land" as the President and Senate did not have the authority to enter into such a treaty in the first place.

*I'm deliberately overlooking the possibility of a court "re-interpreting" the Constitution, such as when it changed its mind about whether the Constitution required racial integration in schools (Plessy v. Fergusun, 1896, overturned by Brown v. Brown v. Board of Education, 1954).

Re:Don't expect to lose the tax

[sumdumass]

I was looking for the differences between devices and medium marked for "data" verses music in general. It is because US copyright law provides for a specific tax on recording devices and medium that are supposed to be royalty payments for private copying due to the use of those devices by private people. This law also mandates they are marked appropriately too leading to the difference in labeling between data and music.

http://www.law.cornell.edu/uscode/text/17/1003

http://www.law.cornell.edu/uscode/text/17/1004

http://www.law.cornell.edu/uscode/text/17/1008

I thought that the DVD was covered by the tax too, but the law seems to specifically limit it to digital audio recording devices and medium. I do not know at this time if my belief in DVDs being covered is supported by real application (due to digital audio being inclusive in the DVD video format) or something I inferred because i have seen specific "data" dvds being sold.

Re:EU law trumps National law?

[tbird81]

I don't live in the US. You live in the EU. Doesn't make it right that you both do it.

Re:EU law trumps National law?

[tbird81]

but importantly it's made the EU's member states richer as a whole

Yeah, see those Spanish, see those Greeks, doing well. Keep it up Ireland.

an authority who does a better job of looking after my rights than even my own government would by itself because it's more easily influenced by vested interests and lobbyists.

This article is about the decision whether the EU will make it illegal to copy things. That doesn't protect your rights. It has been strongly swayed by lobbyists.

Re:EU law trumps National law?

[Xest]

Then they'll suffer sanctions, which means restriction on trade, which means that in this economic climate they'll end up needing a bailout from guess who?

It'd be economic suicide to shut yourself off from your biggest trading partners like that, no country is stupid enough to do so. It's easier to just fulfil their obligations.

Can you think of a better example?

[davidwr]

Can you think of some examples where almost all reasonable people would agree that Congress cannot, by law, pass some $FILLINTHEBLANK law that affects domestic matters but the Senate and the President can, by treaty, accomplish the same task?

Your examples of lost treasure and copyright are both in areas where reasonable people disagree whether Congress could, by law, do what the treaty did.

Claiming lost treasure is not something I would consider a fundamental right, but obviously reasonable people disagree.

As far as copyrights are concerned, absent the right of Congress to issue patents and copyrights, it was generally understood that states had the right to grant patents and copyrights that were valid within their own borders, and there was no national prohibition on a state granting a perpetual copyright. In fact, until the 1970s, many copyrights on recorded music were exactly that - state-by-state and, in states that had perpetual copyrights, forever. Based on my reading of the court decisions, there is nothing that the copyright treaties did that affected domestic enforcement of copyright law that Congress could not have done by statute.

Sidebar:

It's not relevant to my original post's claim that treaties cannot do what Congress cannot do, but like you I disagree with some of the late-1990s and 21st-century Supreme Court copyright decisions on what the federal government can and cannot do.