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| IPRED 2 is excessive and distorts carefully balanced national procedural law systems. IPRED 2 threathens legal security. | We would like to thank you for the invitation to send in notes. We would like to draw your attention to the following points. |
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| The aim is supposed to be fighting piracy. IPRED 2 is not needed: piracy is already forbidden in European countries. And TRIPS already lays down severe provisions on means of enforcing trade-related intellectual property rights. | IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates. |
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| The Commission made no assessment of the current situation. Are there any real problems today due to unintended legal limitations? How would the directive work out in various criminal law systems? For reasons of human rights criminal laws require very precise definitions. The IP laws do not provide them. Are we willing to rewrite our IP laws? |
Patents, especially software patents, are unfit for criminal sanctions. |
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| In some cases, like trade names, prison sentences go up more than a 100 times. Dutch tradenames law is geared to reconciliation, not punishment. Criminal provisions were never used since late 1950's. There is no need for such severe sentences as IPRED 2 has in store. | Depending on the outcome of the lawmaking process and interpretation by courts, not for profit activities will be a crime, or organised crime or not. |
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| In trade marks, currently typically only counterfeiting is a crime. Trademark infringement in general is very complicated and subtle. Not suited for criminal sanctions. IPRED 2 creates a risk of reverse hijacking, prosecuting legitimate owners under false pretexts, for instance with domain names in particular. |
We could see adolescents' not for profit actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive. |
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| In patent law criminal provisions are hardly ever used – even by SMEs. Commercial parties prefer settlement, not punishment. The “As such” exclusions in patent law are unclear and drifting. Patents have a major quality problem. It is impossible to know all patents. In the software industry, it is impossible not to violate patents. With IPRED 2, just doing your job can get you 4 years in prison. Software patents are a legal minefield, with criminal sanctions added! | There was a call to remove "commercial scale" from the directive, which was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses, not for profit activities by individuals will be criminalised. |
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| Patents can be invalidated in court. They are fundamentally unstable. Patents are totally unfit for criminal sanctions! |
Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. In our opinion we are witnessing an overreaction that will cause more damage than good. Levies on writeable CDs, DVDs, etc are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying. |
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| Right-holders may assist the police, even with drawing conclusions. What will be the impact on the neutrality of police investigation? What are the safeguards against abuse? | The directive is not just a harmonisation. In many cases, minor offences become criminal offences. Fines go up. Maximum custodial sentences go up, in the case of Dutch trade name violations more than a 100 times. Violations that did not have criminal sanctions now are criminalised. For instance patents have criminal sanctions only in 10 EU countries. |
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| Big companies want to lock in customers, lock out competitors, acquire as many rights as possible and make these rights as strong as possible. | Severe sanctions on copyright violations may endanger freedom of speech. Severe sanctions pose a threat, and will provoke false threats. A US study revealed that a third of them demanded removal when the target had a clear legal defense. Take down notices often result in online materials being pulled from the Internet, generally without notice to the target. Conclusion For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security, in order to keep Europe's software developers out of jail, in order to reach a balanced and well thought-out solution for internet file sharing, we ask you to reject these superfluous and detrimental proposals. Introduction PRED 2 adds criminal sanctions to a legal minefield In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property rights" a crime. All commercial violations. But not all intentional commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates. • Take copyright. The question whether a work is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. Severe sanctions on copyright violations may endanger freedom of speech. • Take Patent law. Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? He can go to jail, together with Europe's software developers, since IPRED 2 criminalises companies that are not pirates. Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. In our opinion we are witnessing an overreaction that will cause more damage than good. The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not. We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions. The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses. Do we want not for profit file sharing to be organised crime? As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive. Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material. We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. We may cross the line. If our youngsters are criminals already, what would they care about other crimes? If companies are criminalised, shouldn't they go underground or leave Europe? Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise. In our opinion we are witnessing an overreaction that will cause more damage than good. Legal threats Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense. Take down notices often result in online materials being pulled from the Internet, generally without notice to the target. [WWW] http://lawweb.usc.edu/news/releases/2005/legalFlaws.html Privatise the police Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation. |
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| = IPRED 2 = Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on criminal measures aimed at ensuring the enforcement of intellectual property rights Proposal for a COUNCIL FRAMEWORK DECISION to strengthen the criminal law framework to combat intellectual property offences == IPRED 2 == |
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| Violates the legitimacy principle. Violates the subsidiarity principle. IPRED 2 is excessive. | |
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| == Legitimacy == | |
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| We can say: "Fact X is a crime". This rule has to be written down in a law in advance. Before the act. Criminal laws are strict. They have to be, it is a protection against arbitrary power. People are entitled to know what is a crime in advance. | |
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| Civil law is less strict. In a copyright case a Dutch court decided a smell can be “a work” in the sense of the copyright law. The scope of the copyright law became broader. In criminal law this would be a violation of the legitimacy principle. People could not know it is a crime to violate a smell. | |
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| We have a complication. If you add or increase sanctions to a law that is enforced in a civil way, definitions have to be interpreted in a more strict way. The scope of the law will become more narrow. For instance in copyright law there are issues with definitions like “work”, “independent” recreation, “parody”. | |
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| Trade marks. Trade marks have to be defended rigorously, otherwise they are lost. Trade Marks are unstable. Fact X can turn out not to be a crime! We will have a crazy situation at hand. Fact X can turn out to be a crime, or fact X can turn out not to be a crime! And you will find out in court. This should never be allowed! We are not living in the dark middle ages, this is the 21st century. People are entitled to know what is a crime in advance. Otherwise legitimacy is lost, there is no protection against arbitrary power. | |
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| Patents cause lots of problems already. The “As such” exclusions are unclear and drifting. We have a major quality problem at hand. It is impossible to know all patents. | == Commercial scale == |
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| Especially in the software field, problems are huge. There are countless software developers around the world, who often keep their source code secret. There is no prior art database, it is not known what has already been done. It is not known what is new, and if you do not know what is new, it is impossible to know what is inventive. More than 30.000 software patents have been granted, it is impossible to know them all. It is impossible to write software without violating patents. “Independent (re)discovery” occurs daily. A whole industry will be criminalized. With IPRED 2, just doing your job may get you 4 years in prison. | The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not. |
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| Patents can be invalidated in court. In civil court cases, there is almost always a counterclaim for invalidity. It may take weeks to establish whether the patent should have been granted or not. Counterclaims are often granted. Patents are fundamentally unstable. Again fact X can be a crime or not a crime. There is no legitimacy at all. No protection against arbitrary power. | We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions. |
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| Patents are totally unfit for criminal sanctions. | The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. |
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| == Excessive == | == Do we want not for profit file sharing to be organised crime? == |
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| Let´s take a look at trade names. In the Netherlands, on first offence the civil servant can propose measures to take to stop the offence. Then there will be no punishment. Violating a trade name is a minor offence in the Netherlands, the fine is 2250 euro. On second offence the fine is the same or two weeks of prison. | As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. |
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| With IPRED 2 violating trade names is a criminal offence, the sanctions for a first offence are 100.000 or 300.000 euro, depending on the circumstances, or 4 years of prison. | Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material. |
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| The prison sentence is more than 100 times as severe for a first offense as it is now in the Netherlands for a second offence. In the Netherlands, there have not been cases for the last 50 years. Clearly, there is a total lack of necessity. And the sanctions are disproportionate to the offense, which is a violation of article 49(3) of the Charter of Fundamental Rights. | |
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| == IP-rights == | |
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| We took a look at four "intellectual property" rights. There are many of them and they are very different from each other. This is the list of the ones concerned: copyright, rights related to copyright, sui generis right of a database maker, rights of the creator of the topographies of a semiconductor product, trademark rights, design rights patent rights, including rights derived from supplementary protection certificates, geographical indications, utility model rights, plant variety rights, trade names, in so far as these are protected as exclusive property rights in the national law concerned. | |
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| The four we looked at, have many issues, how many issues will the others have? We do not know, the Commission did not investigate the issues at all. | We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. We may cross the line. If our youngsters are criminals already, what would they care about other crimes? If companies are criminalised, shouldn't they go underground or leave Europe? |
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| == Solve the legitimacy problem == | Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying. |
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| Let´s try to solve the legitimacy problem. Here are the things that at least need to be done: | The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise. |
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| - Exclude unstable rights | In our opinion we are witnessing an overreaction that will cause more damage than good. |
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| - Clear up grey area's | |
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| - Rewrite all IP-laws | Legal threats |
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| - Scope of protection has to be drastically narrowed | Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense. |
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| == Privatize the police == | Take down notices often result in online materials being pulled from the Internet, generally without notice to the target. |
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| Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). What will be the impact on neutrality of police investigation? Privatization of the police, how far should it go? What are the safeguards against abuse? For instance patents are used strategically. Will the police become part of power play by multinationals? These are really fundamental questions. The Commission provides no answers at all. How could it, the whole justification is one A4 page long, 463 words. | [WWW] http://lawweb.usc.edu/news/releases/2005/legalFlaws.html Privatise the police |
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| == Subsidiarity == IPRED 2 is not needed: piracy is already forbidden in European countries. And TRIPS already lays down severe provisions on means of enforcing trade-related intellectual property rights. These include the implementation of criminal procedures and criminal penalties. In no way the Commission makes clear these are not enough. In 2004 the Council and European Parliament adopted the Intellectual Property Rights Enforcement Directive (IPRED). It is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed. == Conclusion == With IPRED 2 legitimacy is lost. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. The Commission is blind for all the issues. The justification is just one A4 page long, 463 words. IPRED 2 is a grave violation of the subsidiarity principle. On July 6th the European Parliament rejected the software patents directive. Europe can only thank the Parliament for this. The IPRED 2 directive is even more absurd. It should be rejected in first reading. We wish the Parliament the wisdom it had on July 6th 2005. |
Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation. |
We would like to thank you for the invitation to send in notes. We would like to draw your attention to the following points.
IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates.
Patents, especially software patents, are unfit for criminal sanctions.
Depending on the outcome of the lawmaking process and interpretation by courts, not for profit activities will be a crime, or organised crime or not.
We could see adolescents' not for profit actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive.
There was a call to remove "commercial scale" from the directive, which was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses, not for profit activities by individuals will be criminalised.
Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. In our opinion we are witnessing an overreaction that will cause more damage than good. Levies on writeable CDs, DVDs, etc are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying.
The directive is not just a harmonisation. In many cases, minor offences become criminal offences. Fines go up. Maximum custodial sentences go up, in the case of Dutch trade name violations more than a 100 times. Violations that did not have criminal sanctions now are criminalised. For instance patents have criminal sanctions only in 10 EU countries.
Severe sanctions on copyright violations may endanger freedom of speech. Severe sanctions pose a threat, and will provoke false threats. A US study revealed that a third of them demanded removal when the target had a clear legal defense. Take down notices often result in online materials being pulled from the Internet, generally without notice to the target.
Conclusion
For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security,
in order to keep Europe's software developers out of jail,
in order to reach a balanced and well thought-out solution for internet file sharing,
we ask you to reject these superfluous and detrimental proposals. Introduction
PRED 2 adds criminal sanctions to a legal minefield
In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property rights" a crime. All commercial violations. But not all intentional commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates.
• Take copyright. The question whether a work is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. Severe sanctions on copyright violations may endanger freedom of speech.
• Take Patent law. Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? He can go to jail, together with Europe's software developers, since IPRED 2 criminalises companies that are not pirates.
Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems.
Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. In our opinion we are witnessing an overreaction that will cause more damage than good.
The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not.
We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions.
The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses.
Do we want not for profit file sharing to be organised crime?
As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive.
Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material.
We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. We may cross the line. If our youngsters are criminals already, what would they care about other crimes? If companies are criminalised, shouldn't they go underground or leave Europe?
Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying.
The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise.
In our opinion we are witnessing an overreaction that will cause more damage than good.
Legal threats
Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense.
Take down notices often result in online materials being pulled from the Internet, generally without notice to the target.
[WWW] http://lawweb.usc.edu/news/releases/2005/legalFlaws.html Privatise the police
Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation.
Commercial scale
The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not.
We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions.
The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say.
Do we want not for profit file sharing to be organised crime?
As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime.
Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material.
We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. We may cross the line. If our youngsters are criminals already, what would they care about other crimes? If companies are criminalised, shouldn't they go underground or leave Europe?
Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying.
The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise.
In our opinion we are witnessing an overreaction that will cause more damage than good.
Legal threats
Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense.
Take down notices often result in online materials being pulled from the Internet, generally without notice to the target.
[WWW] http://lawweb.usc.edu/news/releases/2005/legalFlaws.html Privatise the police
Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation.