EU plan could put open sourcers in court

EU plan could put open sourcers in court
By Ingrid Marson, ZDNet (UK)
Published on ZDNet News: August 2, 2005, 11:51 AM PT

The European Commission has proposed a law that could allow criminal charges to be pressed against a business using software believed to infringe upon another company's intellectual property.

The proposed directive, which was adopted by the European Commission last month, would allow criminal sanctions against "all intentional infringements of an IP right on a commercial scale."

Richard Penfold, a partner at law firm DLA Piper Rudnick Gray Cary, said last week that the proposed directive could "quite possibly" allow the imprisonment of the boss of a company that is using infringing software, although it would depend on whether the defendant can argue that the infringement was unintentional.

It is unusual for companies to target the users of software, rather than its manufacturers, but there is one well-known example--the cases brought by the SCO Group against car maker DaimlerChrysler and auto-parts retailer AutoZone over their use of Linux. SCO claimed that AutoZone infringed on SCO's Unix copyrights through its use of Linux and that DaimlerChrysler had breached its contract with SCO.

Ross Anderson, the chair of the Foundation for Information Policy Research, said the proposed directive could help SCO or other companies in future intellectual property infringement cases against open-source software.

"In future somebody like SCO will have another course of action open to them--the threat of criminal charges. This threat would enable SCO to cast a larger legal cloud," said Anderson.

No, it's not wrong. It's working the way that it was designed to work. The Founders knew that this would happen. They probably didn't count on voter apathy, though.

It's definitely wrong if the people can't make change. The Founding Fathers believed in short-term citizen legislators accountable to the people, not long-term residents in office who are accountable only to those who paid for their position.

And specifically for IP issues, the Founding Fathers definitely did not envision the mess we have now.

It's definitely wrong if the people can't make change.

But the people *can* make change. They simply choose not to. As I said before, the Founding Fathers provided the mechanism for change (voting) but they never anticipated that there would be such utter voter apathy.

The Founding Fathers believed in short-term citizen legislators accountable to the people, not long-term residents in office who are accountable only to those who paid for their position.

I agree with you on that score; however, we are now in a situation where, in order to win elections, politicians need to spend huge sums of money to massage their public image. This system essentially produces people who spend all of their time raising money rather than doing their jobs as legislators. I'm not saying that I like it that way. It simply is that way and, until voters turn out in significant numbers to change the system, it will stay that way.

And specifically for IP issues, the Founding Fathers definitely did not envision the mess we have now.

I disagree. The Founders understood the concept of invention. Whether that invention is manifested in hardware or software is an irrelevant distinction. Likewise, the fact that the Founders left it up to Congress to determine what a "limited time" means indicates that they trusted Congress to make the right choice.

As I said before, the Founding Fathers provided the mechanism for change (voting) but they never anticipated that there would be such utter voter apathy.

They also didn't anticipate the death-grip the parties would have on the system. In fact, they warned of the dangers of parties. Voting doesn't matter as long as the two parties choose the agenda.

It simply is that way and, until voters turn out in significant numbers to change the system, it will stay that way.

They tried. Remember Ross Perot with 20% of the vote? The two parties made sure that would never happen again. Remember how the Dims were trying as hard as they could to kick Nader off the ballots?

Likewise, the fact that the Founders left it up to Congress to determine what a "limited time" means indicates that they trusted Congress to make the right choice.

The fact that the first copyrights were for 14 years, renewable once, shows what they thought was appropriate. Now we have, according to Lessig, "Perpetual copyright on the installment plan." Patents are more reasonable, but the examination process needs to be overhauled so that worthless patents (which I belive most software patents are) don't get issued in the first place. BTW, software patents were never issued by the USPTO until they lost a court case after denying such a claim as unpatentable. Yes, software patents are a product of judicial activism.

I believe the Fathers also didn't intend the Commerce Clause to be used as it is today.

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