This is easier said than done. Who would do all this work of linking the pieces together? It's not as simple as copy pasting a text from one place to another. There are often a dozen of sources that have to be consulted for only one provision of a law to be fully documented. Now multiply that by the number of provisions per law by the number of the laws passed each year, by the number of count(r)ies in a region (like the US or the EU), etc. Not to mention that a person doing such work would need the necessary legal knowledge not to put nonsense together and would need to be skilled enough to make it understandable to all of the citizens.
Re:transmission in a network between third parties
on
LokiTorrent Shut Down
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· Score: 1
"To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law."
Point 33 of the preliminary comments of the directive refers to browsing, caching and similiar technologies as implemented by intermediaries. I think this would be sufficient to conclude that the EU legislator did not intend to cover a technology like bittorrent to make any transfer of copyrighted material legal.
I agree that using abstract definitions is not very helpful for most people. However the reason to use phrases like this instead of using a direct reference like "proxy or cache" is to allow for the law to be broad enough to catch all similiar technologies, including those that might come up after the law is enacted. On the other hand this kind of legal talk is also what allows a lawyer to come up with defenses for his client, laying out a text in a different way depending on what side he is on.
That said it also remains my professional duty to recommend a certain course of action in order to avoid any conflict with law, hence why I specifically stick to the theory that is most likely to be approved by a judge. Of course if I was to defend someone who is already being sued for copyright infringement (the damage is done anyway, so...), I might use other arguments.
Re:transmission in a network between third parties
on
LokiTorrent Shut Down
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· Score: 1
Art. 5, 1. (a) "1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2."
You are cutting away the first part of the article... This exception does not include p2p networks. It only applies to a temporary reproduction part of a global technological process. p2p is a mean by itself and not part of another mean of transmission. I understand that this may seem confusion or ambiguous to someone only reading the text, but you have to consider national laws existing before the directive (which only tends to unify national laws, not to replace them with something completely new!) as well as the interpretation made of texts by national jurisdictions.
As for Art. 5,2.(b), it's one of the cases (private use) I described before and the limitations I set apply. The directive is even more restrictive and adds the fair compensation aspect (which was unknown to some national laws before, like French law for instance).
The temporary copy you are referring to is pointing at caches and proxy systems, but not at p2p systems. I am an IP lawyer myself and also part of a research group regarding p2p and copyright issues. While it is true that opinions on how to interpret the texts are multiple, the main stream of opinions as well as the scarce case law that starts to show up (especially in France, Belgium and Germany) tend to what I explained earlier.
It is true that there are several exceptions to copyright in EU laws, the most important ones being "private copy" and "private use".
The "private copy" exception only applies if the source of the copy is legal. Making a copy of a bought or borrowed DVD is legal. Making a copy of a copy is illegal if one never had access to the original, unless the original was not protected by copyright or had a licence attached to it that allows for copies to be made. Files distributed on p2p networks are always copies of an original and never an original per se.
The "private use" exception allows me to use a copyrighted content at home or within my family. I can show a DVD I bought to my family or a group of my friends. However I can't invite a group of 50 random people from the street to watch it with me. In the same way, I can't invite 50 people on the net (p2p) to watch it with me.
In short, both exceptions fail in the case of p2p networks. There are others, but they don't apply to p2p networks either (for instance copying items for educational purposes).
Re:There's no point to this article...
on
Euro DMCA Fails
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· Score: 2, Insightful
Well, i guess it's too late to back off now for the countries. As for the reference to the federal system, the EU, though a unique system, will tend more and more to a federal type system in future. Especially as they are currently working on a EU Constitution, which will be the basement to a European Federation.
Re:Sigh... EU Directive != DMCA
on
Euro DMCA Fails
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· Score: 1
Just as a note: The EU Court is located in Luxembourg, not in Den Haag:P
Re:There's no point to this article...
on
Euro DMCA Fails
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· Score: 2, Informative
You can indeed only take countries to the EU Court and in rare cases companies.
However that's not the root of the problem. Individuals, as well as most companies will of course use national Courts first. As the Directive has passed its deadline, EU law grants it a direct effect for EU citizens, thus they can invoke it in front of the local judge. This one could of course refuse to to apply it, saying it is not local law, but the risk is low, as he's aware that his decision would be reversed, either by the local Appelate Court, the local High Court or in the worst case by the EU Court.
So the Directive pretty much will produce its effects in all of the EU countries from now on, as nowadays local judges tend not to challenge EU Courts (in any case they will lose when not applying a Directive...)
Next to that, I actually took the pain to read the Directive and in my opinion, it doesn't bring anything new in respect to most local laws (such as French law for instance), which may also explain why that much countries didn't bother to formally implement it yet. All the panic issued here is mostly hype, we're not in front of a Dark Age of Digital Copyright, the Directive just regroups the existing laws in the majority of the countries in one formal and unified document.
This Directive won't affect the issue of an actual lawsuit in 99% of the cases...
Re:There's no point to this article...
on
Euro DMCA Fails
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· Score: 2, Informative
EU law is published in the EU Official Journal, which is sufficient. And a Directive has not only consequences on the countries, but also on the citizens, as they can take advantage of it. The only persons that can not invoke it are the Governments of the failing countries. As the BSA is no country, they can make use of the Directive before a judge.
You can debate over it as long as you want, just check a manual on EU law, and you'll see:)
Re:There's no point to this article...
on
Euro DMCA Fails
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· Score: 2, Informative
No, I am right:) It's true that a Directive has no effect given to it by the EU Treaty, but the EU Court has decided since 1970 that a Directive which has not been implemented or has been badly implemented has a direct effect for all EU countries once the deadline has passed.
SACE (17 december 1970, ruling 33/70, rec. 1213)
Van Duyn (4 december 1974, ruling 41/74, rec. 1337)
I have studied EU law for 2 years, I know what I am talking of.
Re:Late == canceled?
on
Euro DMCA Fails
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· Score: 2, Informative
The deadline doesn't matter, the only thing it changes is that the failing countries will have to pay a fine (If the EU Commission claims so). It doesn't change anything to the obligatory effect of the EU Directive.
Finally, let's notice that around 80% of EU Directives are implemented late, so there's not even a particular message connected to the countries being late to do it...
There's no point to this article...
on
Euro DMCA Fails
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· Score: 5, Informative
Whether the countries have or have not implemented the Directive's text into local law does not matter. As soon as a Directive is published, it has an obligatory effect in all of the EU countries, whether it's implemented or not. So in short, in a lawsuit, any of the parties can take advantage of the Directive and the local judge will have to respect it, even if it is in opposition with the local law.
Slashdot Mirror
This is easier said than done. Who would do all this work of linking the pieces together? It's not as simple as copy pasting a text from one place to another. There are often a dozen of sources that have to be consulted for only one provision of a law to be fully documented. Now multiply that by the number of provisions per law by the number of the laws passed each year, by the number of count(r)ies in a region (like the US or the EU), etc. Not to mention that a person doing such work would need the necessary legal knowledge not to put nonsense together and would need to be skilled enough to make it understandable to all of the citizens.
Point 33 of the preliminary comments of the directive refers to browsing, caching and similiar technologies as implemented by intermediaries. I think this would be sufficient to conclude that the EU legislator did not intend to cover a technology like bittorrent to make any transfer of copyrighted material legal.
That said it also remains my professional duty to recommend a certain course of action in order to avoid any conflict with law, hence why I specifically stick to the theory that is most likely to be approved by a judge. Of course if I was to defend someone who is already being sued for copyright infringement (the damage is done anyway, so...), I might use other arguments.
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2."
You are cutting away the first part of the article... This exception does not include p2p networks. It only applies to a temporary reproduction part of a global technological process. p2p is a mean by itself and not part of another mean of transmission. I understand that this may seem confusion or ambiguous to someone only reading the text, but you have to consider national laws existing before the directive (which only tends to unify national laws, not to replace them with something completely new!) as well as the interpretation made of texts by national jurisdictions.
As for Art. 5,2.(b), it's one of the cases (private use) I described before and the limitations I set apply. The directive is even more restrictive and adds the fair compensation aspect (which was unknown to some national laws before, like French law for instance).
The temporary copy you are referring to is pointing at caches and proxy systems, but not at p2p systems. I am an IP lawyer myself and also part of a research group regarding p2p and copyright issues. While it is true that opinions on how to interpret the texts are multiple, the main stream of opinions as well as the scarce case law that starts to show up (especially in France, Belgium and Germany) tend to what I explained earlier.
It is true that there are several exceptions to copyright in EU laws, the most important ones being "private copy" and "private use".
The "private copy" exception only applies if the source of the copy is legal. Making a copy of a bought or borrowed DVD is legal. Making a copy of a copy is illegal if one never had access to the original, unless the original was not protected by copyright or had a licence attached to it that allows for copies to be made. Files distributed on p2p networks are always copies of an original and never an original per se.
The "private use" exception allows me to use a copyrighted content at home or within my family. I can show a DVD I bought to my family or a group of my friends. However I can't invite a group of 50 random people from the street to watch it with me. In the same way, I can't invite 50 people on the net (p2p) to watch it with me.
In short, both exceptions fail in the case of p2p networks. There are others, but they don't apply to p2p networks either (for instance copying items for educational purposes).
Well, i guess it's too late to back off now for the countries. As for the reference to the federal system, the EU, though a unique system, will tend more and more to a federal type system in future. Especially as they are currently working on a EU Constitution, which will be the basement to a European Federation.
Just as a note: The EU Court is located in Luxembourg, not in Den Haag :P
You can indeed only take countries to the EU Court and in rare cases companies.
However that's not the root of the problem. Individuals, as well as most companies will of course use national Courts first. As the Directive has passed its deadline, EU law grants it a direct effect for EU citizens, thus they can invoke it in front of the local judge. This one could of course refuse to to apply it, saying it is not local law, but the risk is low, as he's aware that his decision would be reversed, either by the local Appelate Court, the local High Court or in the worst case by the EU Court.
So the Directive pretty much will produce its effects in all of the EU countries from now on, as nowadays local judges tend not to challenge EU Courts (in any case they will lose when not applying a Directive...)
Next to that, I actually took the pain to read the Directive and in my opinion, it doesn't bring anything new in respect to most local laws (such as French law for instance), which may also explain why that much countries didn't bother to formally implement it yet. All the panic issued here is mostly hype, we're not in front of a Dark Age of Digital Copyright, the Directive just regroups the existing laws in the majority of the countries in one formal and unified document.
This Directive won't affect the issue of an actual lawsuit in 99% of the cases...
EU law is published in the EU Official Journal, which is sufficient. And a Directive has not only consequences on the countries, but also on the citizens, as they can take advantage of it. The only persons that can not invoke it are the Governments of the failing countries. As the BSA is no country, they can make use of the Directive before a judge.
:)
You can debate over it as long as you want, just check a manual on EU law, and you'll see
SACE (17 december 1970, ruling 33/70, rec. 1213)
Van Duyn (4 december 1974, ruling 41/74, rec. 1337)
I have studied EU law for 2 years, I know what I am talking of.
Finally, let's notice that around 80% of EU Directives are implemented late, so there's not even a particular message connected to the countries being late to do it...
Whether the countries have or have not implemented the Directive's text into local law does not matter. As soon as a Directive is published, it has an obligatory effect in all of the EU countries, whether it's implemented or not. So in short, in a lawsuit, any of the parties can take advantage of the Directive and the local judge will have to respect it, even if it is in opposition with the local law.
http://w3.one.net/~johnb/imaclinux/