The European Commission has proposed a law that could allow criminal charges to be pressed against businesses using software that is believed to infringe upon another company's intellectual property (IP).
The proposed directive, which was adopted by the European Commission last month, would allow criminal sanctions against "all intentional infringements of an IP right on a commercial scale".
Richard Penfold, a partner at law firm DLA Piper Rudnick Gray Cary, said last week that the proposed directive could "quite possibly" allow the imprisonment of the boss of a company that is using infringing software, although it would depend on whether the defendant can argue that the infringement was unintentional.
Although it is unusual for companies to target the users of software, rather than its manufacturers, there is one well-known example — the cases brought by the SCO Group against car maker DaimlerChrysler and auto-parts retailer AutoZone over their use of Linux. SCO claimed that AutoZone infringed on SCO Unix copyrights through its use of Linux and that DaimlerChrysler had breached its contract with SCO.
Ross Anderson, the chair of the Foundation for Information Policy Research, said the proposed directive could help SCO or other companies in future IP infringement cases against open source software.
"In future somebody like SCO will have another course of action open to them — the threat of criminal charges. This threat would enable SCO to cast a larger legal cloud," said Anderson.
The European branch of the Free Software Foundation (FSF) was also worried that SCO could use the directive to its advantage. Joachim Jakobs from FSF Europe said that not only could company managers face being tried in a criminal court, but SCO could also be allowed to join the criminal investigation — as the directive calls for "Joint Investigation Teams", where the holder of the IP rights in question can assist the criminal investigation.
But Paul Stevens, a partner at Olswang, said it was unlikely that software users would be affected by the directive, as any company that pursues criminal cases against users is likely to suffer from the bad publicity.
"It's not that often that companies who have IP rights pursue cases against users," he said. "Most IP owners want you to continue buying their product and to continue dealing with them. If they started threatening someone with prison or a criminal record, how do you think their customers will feel?"
The proposed directive, which has not yet been approved by the European Parliament, includes various penalties to those caught infringing IP rights, including four years' imprisonment; fines; seizure and destruction of the offending goods; closure of the establishment used to commit the offence; a ban on engaging in commercial activities; and denial of access to legal aid.
The proposal is described as a "European Parliament and Council directive on criminal measures aimed at ensuring the enforcement of IP rights". For more information on this law and how it may impact free software, file sharers and patent infringement lawsuits, please click here.
Talkback
Hmm. Isn't this the same group that was pushing for software patents over the objections of the Parliament? Who is influencing these people to consistently come up with boneheaded ideas which are in favor the established companies and opposed to newcomers and consumers?
Gray Cary has a long history of doing legal shilling for SCOX.
TO THE MOOON
Woah!
Bill Gates would spend the rest of his life in jail, just on the stuff his company has already been caught at in European courts.
Somehow I don't see Microsoft or any other large company allowing Europe to pass anything like this.
SCO Group won't be around much longer. They are going to have to answer for the things they have claimed to own that they do not. Don't worry, be happy.
I'm not sure about the EU but it is pretty clear Novell owns most copyrights to UNIX in the US if those are still valid. In fact SCO will be forced to pass on their improperly processed license fees to the real copyright owner. It is not clear whether SCO continue operation after passing on the fees SCO had collected for the legitimate copyright holder. This is so funny, it is like a paperboy trying to sell the newspaper company instead of the morning paper. I would not be surprised to see some SCO officials in prison before this is over and maybe a shyster lawyer or two as well.
The BSA would be just one party delighted to add this to their bags of tricks to "motivate" people and organizations to simply agree to their "proposal" or else run the risk of fighting it out in court.
Thing is that many people know how to play poker but many people forget even basic poker rules when the stakes are getting high enough. Ever seen someone giving up with four of a kind of kings in hand when the pot is at EUR 4? Ever seen someone giving up with four of a kind of kings in hand when the pot is at EUR 60000 and the other guys says: I raise EUR 60000? I know this. A guy with a year income less then EUR 60000 is more likely to crumble then then a guy with a year income of EUR 600000000.
In the courts you can't see the other guys cards before you decide to call their bluf either. So many decide not to risk it and count their loses before even going to court. And those you don't read about in the papers. In all the ones you do read about in the papers are 1 in 10, 1 in 100, 1 in a 1000 maybe?
Great! just what we need another stupid law that could be abused but wont be because 'No company would do that...'. Of course they will bad PR or no Bad PR. Its publicity and look what happened to sco's shareprice right after they tried to sue the world + dog.
At the time of Maastricht, we were assured that those who envisaged a Federal or Unites States of Europe were 'mistaken'. AN OUTRIGHT LIE.
How then can we trust our politicians to act in our interests.
We cheered the fall of Communism and it's Cental State Control.
Now what are we doing? Central State Control in SPADES, not even by our own Governments, and we are impotent to do anything about it because the politicians won't listen to us the people, only Big Business who will likely have unfettered powers in the brave new world.
Encreasing there is a move towards a presumption of guilt, innocence to be proved, at a cost, and Civil offences continuely being changed into Criminal offences.
Only those with deep pockets, and their lawyers, can hope to survive the rigours of the future. For the rest, justice will be like the pot of gold at the end of the rainbow, unattainable.
State sponsored blackmail will be prevalent and and the fear, aways written about in Science Fiction, will prevail in our (children and grand children's) lives, and, of course, Big Brother will know all. I.D cards are just the thin edge of the wedge here and the Politicians are LYING to us again.
Meanwhile Arica continues to suffer great deprevations while our self centred and self indulgent world looks on and even exacerbates it.
So much more could be said.