FSF Europe is also worried about SCO using the directive to its advantage. Joachim Jakobs from FSF Europe says that not only could companies face being tried in a criminal court, but SCO could also be allowed to join the criminal investigation — the directive calls for "Joint Investigation Teams", where the holder of the IP rights can assist the criminal investigation.
At present, some open source and proprietary software products are covered by IP indemnification policies, which cover products if they are found to infringe a third parties IP. These policies would not cover companies against criminal action, according to Penfold from DLA Piper. "If an infringement is a crime then the infringer is clearly liable to be found guilty of a criminal offence if prosecuted," he says. "An indemnity covers the monetary loss a party sustains due to a breach of contract — it would not cover criminal conviction."
File sharers
As the directive only covers IP infringements on a "commercial scale", file sharers may be exempt from this directive. "It covers infringement on a commercial scale so would not cover the private individual downloading unlicensed music unless he or she were selling it on," says Penfold from DLA Piper.
The proposed directive does not yet define what is meant by 'commercial', however, and this definition will impact whether file sharers are excluded from the directive. In the IPR Enforcement Directive, commercial was defined as "anything which creates a direct or indirect economic advantage". This definition could include file sharers, according to Ian Brown from the Foundation for Information Policy Research in an earlier interview. "You could argue that a file-sharer gets an economic advantage by downloading a song," he said.
Patents
Current UK law does not offer criminal sanctions against those accused of infringing patents, but the proposed directive claims to cover "all intellectual property".
Penfold says it would be difficult to justify criminal action against those accused of patent infringement due to the complexity of patent lawsuits. "Patent infringement is very complex and can take a number of years to resolve in court. You're unlikely to see the police impounding things which are infringing patents," he says.
Talkback
It's basically 'IT Terrorism'.
- The European Commission makes the bombs (easily abused laws).
- The corporations place them on the victims (developers and users of free software) .
- The courts press the button (hand out the prison sentences).
- Everyone becomes afraid of being a victim (stops developing and using free software), thereby creating an afflicting blanket of fear throughout a community (terrorism).
This is only being done because there's no point in a giant corporation suing someone (free software developer) who doesn't have a lot of money. The Corporations need another threat to maintain their monopolies, and the European Commission seems happy to oblige ...again.
What do the EC do anyway? Apart from make a bad name for themselves by causing unjustified grief to good people (Open Source Movement), whilst blatantly protecting the bad (MS). We need to get rid of them, they're a waste of our taxes.
Sigh. The EC is still clueless. They still haven't figured out that they are being used by large cooperations to do their dirty work for them.
Picture the following scenario. Someone big wants to pressure someone small. File a complaint and threaten with severe legal action. What will the laywer of the smaller firm/guy/whatever say: well, you could fight it but then you don't know for sure what the outcome will be and it'll suck up all your time in the mean time, you still run the risk of financially bleeding to death before the end by means of legal cost or bad PR so the only realistic option you have is to simply give into their demands which will include a gag order so nobody else will know about it.
The other way around? Yeah right. Do you have the means and time to fight a big boy all the way to the top? No, I didn't think so. Even governments seem to be unable to make them play by the rules in ways that will hurt their revenue seriously if they don't comply. And it takes even them years to get there.
And what about organized crime then? Oh geez, how long before they move themselves to a country that has different laws, simply doesn't care less, is corrupt anyway, whatever.
No, sledgehammers like this should be restricted only to people and organizations that already have been proven to be (part of) a criminal organization by existing traditional laws.
How about the developers of the software used to perform IP infringement? If I make some software that allows users to take backups of DVDs and then some mafia uses that to do large-scale copying, could I get put in jail for aiding and abetting?
-Lars
How can anyone say that the UK will not jump on board this bandwagon. We are completely within the power of an undemocratic "dodgy" government. The latest gimmick plan is the creation of "supercop" who can take away your license and vehicle if he doesn't like the look of you.
In a recent case, a mother had to pay a few grand (over twice the real value) in damages because her very young daughter downloaded some "free" music.
These people are not stupid, even if the EC are, they know exactly what they intend the law to be used for and once implemented they will take full avantage.
I would say get out of the EU now, but quite honestly what we have here is no better.
Especially into developing countries where well defined and registered IP cannot be saved because companies are flagarantly voilating IP.
Look at the recent article in an Indian daily
http://www.financialexpress.com/fe_full_story.php?content_id=158221