Miércoles 27 de Julio de 2005, Ip nº 119

Europe Goes Gently on P2P Piracy
Por Bruce Gain

A law banning digital distribution of copyright movies and music went into effect last week in Sweden, but enforcing the new law and others like it around Europe isn't proving easy.

On the surface, the enactment of the law might have ended the perception of Sweden as a reasonably safe haven if you wanted to download copyright-protected music, film or other files with little fear of any kind of legal ramification. However, catching those who continue to download and distribute copyright files in Sweden, as well as in many parts of Europe, will remain a challenge.

"We do have (privacy) legislation in Sweden, which makes it difficult to get the names from internet companies that know who has what IP addresses," said Malin Bonthron, a civil servant and attorney by training who helped draft the new law in Sweden. "So if you don't know who has been downloading materials but you have the IP address, it is not possible for you to guess their names."

The purpose of the law is also "to not try to get into everybody's home and search through their computers to see if they have downloaded materials," Bonthron said.

"I think that perhaps that the U.S. and the U.K. copyright laws are quite rigid compared to Swedish copyright law," she said.

Sweden, like many European Union member states, has enacted legislation to discourage downloading of pirated materials that follow the European Commission's European Copyright Directive, which was instituted in 2001. The directive was created to help standardize legislation between the different EU member countries.

While the United States and Britain share a similar common law heritage, many EU countries' court systems and legislative bodies take very different views of privacy, intellectual property ownership rights and other related issues. The differences make it more difficult for the entertainment industry to crack down on illegal file trading.

"At the beginning of the campaign against file sharers, IFPI (which represents the international recording industry) issued a press release that emphasized how tricky procedural rules in Europe are -- both in the civil and criminal law context," said Urs Gasser, a professor of law at the University of St. Gallen in Switzerland and a fellow at the Berkman Center for Internet & Society at Harvard Law School. "It makes enforcement much more expensive and burdensome."

Maximum prison sentences that illegal file uploaders and downloaders face vary from two years in Sweden to an EU average of about four years to a possible 10-year sentence in Britain and the United States. Additionally, western European governments and courts have been reluctant to criminally prosecute their citizens who download or distribute film, music or other copyright-protected files, especially for nonprofit purposes.

"Generally speaking, criminal sanctions in the European Union have been a rather dormant feature of copyright law," Gasser said. "Courts seem still reluctant to impose criminal sanctions on individuals for small-scale, nonprofit infringements."

However, some entertainment industry proponents downplay the underlying differences in laws and legal procedural issues. The main point is that whether you are in the United States, Britain or continental EU countries, it has become illegal to download or distribute copyright-protected files online.

"One has to use the legal remedy that is appropriate for the offender, and in every country there are remedies that will discourage copyright infringement," said Allen N. Dixon, general counsel and executive director for the IFPI.

At the same time, observers on both sides of the Atlantic say that the genesis of the European legislation can be traced back to U.S. entertainment firms' involvement in drafting antipiracy laws through the World Trade Organization and the ensuing TRIPS treaty, which influenced the European Copyright Directive.

"The U.S. has been the exporter of more-aggressive copyright laws and penalties for copyright violation," said John Palfrey, executive director of the Berkman Center. "The U.S. entertainment industry has (also) played a key leadership role in ensuring that European legislation and mandates are harmonized with U.S. intellectual property regime to the greatest extent possible."

Another U.S. ruling that could have an impact in Europe is last week's decision by the Supreme Court that file-trading sites can be held liable if their software is used for the transfer of copyright materials. This ruling, under U.S. jurisdictional law, is applicable to any foreign company that affects a U.S. interest.

However, the enforcement of copyright laws in Europe will likely never yield completely to U.S. pressures, said Dominique Barella, the head of the French union of magistrates, especially when it comes to putting people in prison for illegally distributing music, film or other files.

"Prison sentences in general seem like the perfect punishment for the U.S. system," Barella said. "In Europe, and in France in particular, there are alternatives."


  09/07/2005. Wired Magazine.