Some mistakes in the article

Some mistakes in the article

Posted Mar 9, 2004 19:08 UTC (Tue) by j_heald (guest, #15398)
Parent article: EU tightens rules on piracy (CNN)

But first the results.

Mme Fourtou got her package through, with no further amendments.
The Directive is now likely to be signed off by the Council of Ministers on
Thursday.

Final vote was 330 to 151 with 39 abstentions.

On the key amendments:
Am 77 (Art 2.1: Scope of the directive) approved 307 to 185, 7 abstentions
Am 58 (Recital 13: to exclude Patents) rejected 193 to 310
Am 59 (Recital 13a: to limit to Commercial Scale) rejected 198 to 305

So we were just over 50 MEPs away from successfully limiting the Directive to intentional commercial infringement.

For comments from Robin Gross (IP Justice), see:
http://www.theregister.co.uk/content/4/36128.html

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The CNN article quotes from only one side of the discussion in the Parliament today, based only on the speeches of Janelly Fourtou, Arlene McCarthy, Toine Manders; but not any of from speeches of Industry committee chairman Berenguer Fuester, or Marco Cappato, or Ellie Plooij, who made peeches strongly critical of the directive; and others, who also criticised the "fast track" procedure, by which the directive text was negotiated in secret by four or five representatives "confiscating the procedure" as Cappato put it.

The most important problem is the paragraph in the article that:

=== An amendment passed by the parliament said enforcement of the measures "need be applied only for breaches committed on a commercial scale," and should not apply to consumers "acting in good faith" who download music for their own use at home. ===

and the statement that:

=== The new rules will be limited to commercial fraud and would not target the private downloading of music or movies from the Internet. ===

The truth is somewhat different. The clause in question (Recital 13a, which is only a motivating justification, not a legally binding article), states that three of the measures (freezing of assets, handover to the plaintiff of banking records, and the full disclosure of purchasing, sales and distribution networks) "need" only be applied to infringements on a "commercial scale".

But the restriction explicitly does *not* apply to some of the most controversial procedures; and in particular it does not restrict the secret judicial authorisations of privately mounted search and seizure raids (Article 8).

Also closer inspection reveals that, even for the measures which are restricted, the definition of "commercial scale" may be all it first seems:
=== "The acts which are committed on a commercial scale are those carried out for direct or indirect economic or commercial advantage: this would normally exclude acts done by end consumers acting in good faith". ===

Curiously, this doesn´t mention the scale of the acts at all. In fact it could be argued that downloading a single MP3 is an act committed for the "indirect economic advantage" of not paying for the CD. And the concession that end consumers acting in good faith should only "normally" not be subjected to full disclosure of their entire purchasing history, on pain of going to jail for contempt of court, is strangely unreassuring.

So given that reality, the statement by McCarthy that the Directive is "a modest, cautious step; one which is balanced and proportionate; and from which consumers acting in good faith are excluded from the scope" (and the similar statement by Fourtou) -- this statement has no rationale behind it, apart from the rationale of persuading the other MEPs to vote the directive through parliament unamended, regardless of how far the truth has to be bent to achieve it.

I suppose we shouldn´t be surprised. It´s exactly the same technique that was used in the Software Patent directive. The sad thing is that there is usually so little detailed European media scrutiny of what is said and done here in the European Parliament, that when some politicians become utterly convinced by the rightness of their cause, it seems to have become learned behaviour to mislead with impunity -- even when the truth is clear in the very text of the dossier.

Sorry if I´m feeling a little jaded,

Best regards

James Heald.

a borrowed office,
The Winston Churchill Building,
European Parliament,
Strasbourg.

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