We do not want the young generation to be criminal

Re: Criminal Measures aimed at Ensuring the Enforcement of Intellectual 
Property Rights Directive, 2005/0127 (COD) - January 29 and 30

Dear Member of the Legal Affairs Committee,

Research shows the music industry can benefit from downloading if new business 
models are adopted. [1] There are no grounds for criminalising filesharing and 
downloading. Criminalisation has severe drawbacks. We ask you to at least
reject amendments 64 (by Mr Lehne), 65 (Mrs Fourtou), 67 (Mrs Fontaine) and 83 
(Mr Manders).

As an example we discuss amendment 83.

The criminal measures IP directive is meant only for the enforcement of
existing IP law, not for changing substantive law. Amendment 83 by Mr Manders 
changes substantive IP law considerably, for this reason it should be
rejected. IP laws do not involve consumers, they can not infringe the
concerned rights. Amendment 83 makes purchases by consumers of goods 
infringing IP rights fencing. This is a major change in substantive law.

Involving consumers is disproportionate, this undermines the credibility of
criminal law. The Commission proposal is not limited to clear cases of
piracy, nor is amendment 83, causing great legal uncertainty for consumers.

According to Mr Manders, amendment 83 covers downloading. [2] At the moment
downloading is not an infringement of copyright. Turning downloading from "no
infringement" into "fencing" is, again, a major shift in substantive law.

Basically, downloading is making a copy for own use. A prohibition of this 
would only be enforceable in a police state. Until now, lawmakers wisely 
refrained from this. 

Mr Manders stated he wants to fight organised crime with his amendment. But,
when people share files no money is exchanged. Criminals are normally not
involved in downloading.

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 will be criminals.

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.

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 problem 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.

In our opinion, amendment 83, with all its fundamental flaws, is not a 
solution at all. We do not want the young generation to be criminal - 
just for enjoying a videoclip on Youtube.

Yours sincerely,
on behalf of Vrijschrift,

Ante Wessels


[1] http://www.firstmonday.org/issues/issue5_5/dolfsma/
http://www.firstmonday.org/issues/special10_7

[2] http://www.ipred.org/download