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[http://people.vrijschrift.nl/~ante/ipred/vrijschrift.org_legal-affairs070125.txt our email to the members of the Legal Affairs Committee] [http://people.vrijschrift.nl/~ante/ipred/vrijschrift.org_legal-affairs070125.txt Our email to the members of the Legal Affairs Committee]

http://www.ipred.org/MainPage Introduction http://www.ipred.org/analysis Analysis http://www.ipred.org/howto How To http://www.ipred.org/factsheet Fact sheet http://www.ipred.org/download Downloading

We do not want our kids to be criminals - just for enjoying a videoclip on YouTube

Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to criminalise downloading. His proposal is an amendment to the Criminal Measures [http://www.ipred.org IP directive]. The amendment obliges member states of the European Union to ensure that any purchase of goods infringing an intellectual property right is considered as fencing. Mr. Manders explained to journalists his amendment covers downloading too.

[http://people.vrijschrift.nl/~ante/ipred/vrijschrift.org_legal-affairs070125.txt Our email to the members of the Legal Affairs Committee]

[http://action.ffii.org/ipred2/JURI_Tabled_Amendments The proposal was rejected.]

Currently, downloading is not an infringement in Europe. The directive is supposed to be about enforcement only - turning downloading from "no infringement" into "fencing" is a major shift in substantive law.

Involving consumers is disproportionate, this undermines the credibility of criminal law. Basically, downloading is making a copy for own use. A prohibition of this would only be enforceable in a police state. Untill now, lawmakers wisely refrained from this.

The Commission proposal is not limited to clear cases of piracy, nor is amendment 83, causing great legal uncertainty for consumers. Many people send emails with articles from magazines, etc, as attachments. Whoever reads such an attachment is a fencer, according to Manders' amendment. Anyone checking his mail at the beginning of the day may be a criminal before coffee break. Acquiring information becomes a criminal offence in many cases. Kids visiting YouTube are criminals.

Mr Manders explained in Dutch radio shows he wants to fight organised crime with his amendment. But, people sharing files do not make money that way, criminals are normally not involved in filesharing.

The internet changes many things. Recording companies lost their monopoly on distribution. By way of harsh legal actions they try to maintain their position of power. In the U.S. a twelve year old girl paid a 2000 dollar settlement after sharing files with others. Recording companies would like downloading and filesharing to be criminal offences with severe penalties. Criminal law isn't meant for maintaining monopolies. Recording companies would like to create a climate of uncertainty in Europe. Manders' amendment is instrumental in this. (See also amendments 64 and 65 by Mr Lehne and Mrs Fourtou.)

While [http://www.firstmonday.org/issues/issue5_5/dolfsma/ research] shows the music industry benefits from downloading if new business models are adopted. Criminalising children that view a videoclip on YouTube is the wrong way. It would show an inability of the political class to provide a credible solution.

Mr Manders compared downloading with stealing a bicycle. This is a wrong comparison. Stealing a bicycle leaves the right holder with nothing. Copying a file lessens scarcity. If IP rights were abolished, thanks to the internet the scarcity of intellectual goods would be solved overnight. Copying is not stealing but a question of compensating the producers.

This is the approach companies take. Companies rightfully do not shy away from making products, from violating patents and other rights. Rather, they try to cross-license, make a deal or pay damages. In a modern, interconnected world, exclusivity should not be overestimated, it stops innovation.

Recording companies do not have a good track record when it comes to compensating the artists. Many artists traditionally make more money from concerts than from CD sales. Downloading gives them a wider audience. The balance of power may actually have improved.

Mr Manders stated he wants to teach the public moral values. Confronted with the argument Brussels is not competent in that matter, he said: 'Brussels is, since there are cross border aspects." This approach renders worthless all assurances to the public Brussels can not touch upon sensitive national policies (like drugs, abortion and euthanasia), since almost all aspects of modern life have cross border aspects.

Copyright is supposed to foster culture, not a culture of greed. Nor a culture of absoluteness. Amendment 83, with all its fundamental flaws, rather sets an immoral example. We do not want our kids to be criminals - just for enjoying a videoclip on YouTube.


Amendment text: " Member States shall take the necessary measures to ensure that any purchase of goods infringing an intellectual property right is considered as fencing."

See [http://www.europarl.eu.int/registre/commissions/juri/amendments/2007/382372/JURI_AM(2007)382372_EN.doc amendment 83] (.doc)

Many may think that downloading is "for free", so downloading is not covered by the amendment, since it is not a purchase. The legal interpretation of purchasing is broader though. Loose conditions are not uncommon here. For instance, in Dutch law, any way you get it qualifies, or just even having the good.

The amendment may look innocent (as far as downloading is concerned!) but is ominous.

Deceptive amendment by McCarthy

[http://www.europarl.eu.int/registre/commissions/juri/amendments/2007/382372/JURI_AM(2007)382372_EN.doc Amendment 50] by McCarthy seems to make an exception for home copies. On scrutiny, the exception is only valid if the copy is made on a medium for which a levy is paid, such as a CD writeable. Downloading (copying to a hard disk) will be a crime.

Sharing files

Amendments 64 (Lehne) and 65 (Fourtou) propose to scrap "commercial scale" from the conditions required for an infringement to be treated as a criminal rather than a civil offence. Many people send emails with articles from magazines, etc, as attachments. With this amendment the sender commits a criminal offence. In the Netherlands and a number of other member states this would for example mean that copying a poem in a letter to a friend would become a criminal offence. Mrs Fourtou, wife of Mr Fourtou, CEO of Vivendi Universal, seems to aim at people sharing media files. As said above, in the U.S, a twelve year old girl paid a 2.000 dollar settlement for filesharing. In Europe recording companies will be able to press for criminal charges.

Aiding, abetting, inciting

The directive makes aiding, abetting and inciting infringements of IP rights, criminal offences too. Internet service providers and software developers, like p2p software developers, are threatened as well.

[http://www.europarl.europa.eu/activities/public/meetCal/calSearch.do?actionType=search&language=EN&date=20%2F11%2F2006&place=A_X&genericBody=CO&body=C16&term=LONG_TERM agenda will be published here]

The amendments were signalled by the FFII in a [http://press.ffii.org/Press_releases/EP_Member%3A_confused_consumers_are_dealers_of_stolen_goods press release.] Vrijschrift made a [http://mailman.vrijschrift.nl/pipermail/news/2006-December/000067.html Dutch version.] Questioned by Dutch reporters, Manders revealed his amendment covers downloading.

[http://action.ffii.org/ipred2/JURI_Tabled_Amendments FFII analysis]

Dutch sources:

[http://www.planet.nl/planet/show/id=62967/contentid=788533/sc=02b1f8 Planet.nl:] Downloaden is heling (Downloading is fencing)

[http://www.radio-online.nl/pivot/entry.php?id=862 Radio Tros Online:] Downloaden in de toekomst wel strafbaar (Downloading punishable in the future)

[http://kassa.vara.nl/portal?_scr=thema_artikel&number=3139676&thema=2607288 Vara Radio Kassa]

[http://www.xs4all.nl/opinie/2007/01/07/euro-strafrecht-bedreigt-onze-vrijheid/ XS4ALL Opinie]


After the vote in the Legal Affairs committee, the European Parliament will have a plenary vote. After that the European Council will decide on the directive.

[http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2005/0127 Legislative Observatory]

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