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EU Court Asked To Rule On Private Copying 157

Posted by Unknown Lamer
from the off-with-their-heads dept.
Techmeology writes "The Dutch Supreme Court has asked the European Court of Justice to decide whether downloading copyrighted material for personal use — even from illegal sources — is legal. At the heart of the debate is whether the European Copyright Directive requires that any new legal copy of material must have originated from a copy that is itself legal. The case tests the law in the Netherlands, where copyright holders are granted a levy on blank media in exchange for the legalization of private copying." In the Netherlands, it is already legal to download from illegal sources. But EU law might conflict and trump that.
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EU Court Asked To Rule On Private Copying

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  • by ais523 (1172701) <ais523(524\)(525)x)@bham.ac.uk> on Tuesday September 25, 2012 @10:05PM (#41459099)
    I thought that it was much more common for people to go after uploaders than downloaders (including people uploading as part of a torrent, rather than leaching), because it was much clearer that copyright infringement was happening on uploads. For a download, you have the issue of when the copy was created and who did it.
    • by AK Marc (707885) on Tuesday September 25, 2012 @11:53PM (#41459881)
      All the ads say "don't illegally download". All the newspaper coverage says "downloaders targeted" But I've yet to see a single case of a downloader who didn't also upload being taken to court. There are some close in France and New Zealand with the 3-strikes laws that are not criminal laws, but all the "downloaders" sued in the US were sued for uploading only.

      In practice, downloading is legal (except where uploading while downloading).
      • by aliquis (678370)

        The problem is of course that most downloaders also upload and hence break the law due to the technology used. And if it wasn't used download speeds would suck.

        Here in Sweden we also pay a fee for being allowed to privately copy things for external harddrives, flash memory and MP3 players. But of course more or less no-one copies things that way. The Internet is the easy way to fetch your copy.

        Even more so with all the DRM I think it's rather easy to argue that the industry doesn't even let me copy things s

        • by grahamm (8844)

          If the law (in whatever jurisdiction) gives you the right to make the copy (rather than just making it not illegal), then surely any DRM that prevents you from exercising that right should be illegal. Digital Rights Management needs to 'grow up' so that it enforces the rights of both the copyright owner and the owner of the individual copy.

          • by Genda (560240) <mariet@@@got...net> on Wednesday September 26, 2012 @03:02AM (#41460827) Journal

            Apparently you didn't get the memo... The various recording industries have spent billions globally to ensure that you have no rights, save the right to pay them every time you eye see's and image or your ear hears a second or more of their proprietary IP. Any laws to the contrary are hurdles to be overcome with the proper application of wealth and political manipulation. Fair use in the minds of these men is, you use it you pay any time, every time. Hope that clears up any questions you may have had.

            • Re: (Score:3, Insightful)

              by Anonymous Coward

              not to mention that you also pay if you *don't* use it (blank media levy), because you just might, possibly.

          • Typically these laws are written in the form that you are 'allowed' to make a copy, thus giving you no specific right to the ability or capability of making said copy - which means that the rights holder can make it as difficult as they want for you to make that copy.
            If that means you have to hire a bunch of artists to copy a movie frame by frame by oil painting on canvas, and an orchestra and voice artists to record the movie's sound on an 8 track system, then that sucks for you - but at the same, the righ

      • All the ads say "don't illegally download". All the newspaper coverage says "downloaders targeted" But I've yet to see a single case of a downloader who didn't also upload being taken to court.

        Right on the spot. By campaigning against "TEH DOWNLOADERZ", they try to eleminate the biding side of the "market" and of course try to make consumers "feel bad" for what is most likely perfectly legal in their country (i.e. in Germany, downloading isn't illegal, uploading is). But as most people aren't computer-lite

    • by rtb61 (674572)

      For downloads the issue is for the individual trying to figure out with all the hundreds of billions of definable individual definable bits of copyrighted at hundreds of millions of locations on the internet, which they are allowed to download and which they are not allowed to download. Downloaders have to rely on the copyright integrity of the people providing the content. All copyrighted content being treated equally, whether a single photo, an essay, a poem, a news item or a video, and every possible we

    • by Fr33z0r (621949)
      It doesn't make financial sense to target downloaders, with the people making copyright material available via bittorrent for instance, you can claim astronomical damages because that initial infringement results in exponentially more infringements. The damages done by downloading alone are easily quantifiable, and they're so low it's not worth pulling the offenders into court. It's the difference between "200 people downloaded a track from the defendant, and went on to share that track with hundreds more
  • by macraig (621737) <mark@a@craig.gmail@com> on Tuesday September 25, 2012 @10:29PM (#41459273)

    Switzerland already has an opinion in the matter. It's legal to possess any copyrighted material when its use is strictly personal and not for profit. Have I misunderstood what I read? If it's true then Joel Tennenbaum couldn't have even been sued in Switzerland. Is Switzerland considered a socialist nation? That is certainly the most socialistic interpretation of fair use I've seen. I won't move there just because of that, but damn I wish my country was that reasonable about it.

    • Re:Switzerland (Score:4, Informative)

      by Barnoid (263111) on Tuesday September 25, 2012 @10:42PM (#41459393)

      Note that providing copyrighted material is illegal, only possession (and downloading) is legal.

      Of course, the USo*AA didn't like this and have put Switzerland on the 2012 International Piracy Watch List (http://arstechnica.com/tech-policy/2012/09/congressional-report-adds-italy-switzerland-to-piracy-watchlist/). Switzerland took the spot of Canada after they changed their laws to the liking of our *AA overlords.

      • by macraig (621737)

        The ARSTechnica article would have been where I read about Switzerland. Thanks for remembering it.

      • by wierd_w (1375923)

        Can't somebody just firebomb the HQs of these asshats? This sort of shit is getting into the "gonna create domestic terrorists" arena.

        Seriously. Over collections of 3 to 6mb files?

        At RIAA prices, how many dollars per electron is that?

    • by aNonnyMouseCowered (2693969) on Tuesday September 25, 2012 @10:55PM (#41459499)
      "Is Switzerland considered a socialist nation?" First, I doubt whether Switzerland's opinion matters when the country's not even a member of the European Union. Second, what makes you think that copyright is inherently capitalist that having liberal copy laws makes that country socialist? Copyright is neither socialist nor capitalist. In fact, copyright is closer to feudalism than to either econo-political systems. Copyright dates from the time when absolute monarchs would grant subjects what a monopoly on certain fields. Perhaps a knight would gain control, if not ownership, of some tracts of lands in exchange for serving in the king's army. Notice how copyright and patent holders are supposed to receive "royalties"? Copyright, or at least the version that says "All rights reserved", is one idea that should have gone out with the divine right of kings.
      • by macraig (621737)

        Second, what makes you think that copyright is inherently capitalist that having liberal copy laws makes that country socialist?

        I don't think that, but millions of other people would.

      • by Teun (17872)
        Switzerland is , like for example Norway, not a member of the EU but has signed so many bilateral treaties with the EU and EU member states that they've effectively become a follower of EU regulations without having a seat at the negotiation table.
        That's why it's always fun to read rants by anti EU activists using these countries as examples that you can have a good life outside of the EU (or euro).
    • Re:Switzerland (Score:4, Insightful)

      by upside (574799) on Wednesday September 26, 2012 @03:51AM (#41461047) Journal

      I love the obsession with "socialism" in the US. Forget about commies and pinkos, here come muslims and socialists. Oooh, next Hollywood nightmare scenario: Socialist Muslims! That would scare the pants off you.

      You know, Switzerland and other "socialist" European countries have strict belief in private property. If you Yanks would be able to handle the thing called nuance, you'd realize there are shades of gray.

      http://www.nytimes.com/2009/05/03/magazine/03european-t.html?pagewanted=all&_moc.semityn.www [nytimes.com]
      http://en.wikipedia.org/wiki/Nordic_model#Overview [wikipedia.org]
      http://en.wikipedia.org/wiki/Rhenish_model [wikipedia.org]

    • by ais523 (1172701)
      Switzerland is a direct democracy, which may have something to do with it. (Although it has a reasonably normal sort of democratic government, laws can also be passed via a petition followed by a referendum.)
      • by Kirth (183)

        Actually, not really. Because that copyright-law DID NOT EVER contain any phrase which made possession or downloading illegal, except for software (introduced in 1986 I think). Well, maybe the direct democracy has helped to retain the status quo; but the idea that possession or download of a copy of something must be "illegal" or something like that is entirely NEW and totally RADICAL and EXTREMIST.

    • by Kirth (183)

      You misunderstood. Copyright is the right of the author to decide how, when and to what conditions he wants to PUBLISH. Nothing more.

      And Switzerland happens to be one of the countries where that is STILL true. The Netherlands also. Germany fucked it up, with some wishi-washi "illegal source" bogus, which nobody can verify. Some other countries might also have been subject to MAFIAA pressure and changed it.

      And this has nothing to do with socialism or fair use -- fair use is ALSO about PUBLISHING, not about d

  • As with all huge unions its all about greed, and making money. Voters be dammed.

    • by Xest (935314) on Wednesday September 26, 2012 @05:32AM (#41461505)

      Except the EU has for the most part produced and enforced laws that are actually better for the average citizen than the laws wanted by their constituent nations. That's certainly true for the UK - I can't legally be forced to work more than 48hrs a week through threat of punishment or even losing my job by an abusive employer thanks to the EU, but the Tories and Labour would both like it if I could be forced to work 100hrs with no recourse.

      The reason the EU often does a better job than national governments is that the European Parliament that votes on these things:

      1) Is elected proportionally, and hence directly reflects the interests of the people in equal proportion

      2) Consists of representatives representing many different cultures and areas of society meaning that lobbyists struggle to gain a foothold as they can't just go after one party and pay them off to get a law in their favour, but must lobby half of the representatives in Europe, which is prohibitively costly for almost all companies in the world

      3) Similarly to the point above, representatives exist in multiple jurisdictions such that the media also can't unduly influence things because no company has full media monopoly across Europe. Murdoch largely controls the mindset of many of the drones who vote British elections for example, but has pretty much zero influence in much of the rest of Europe. This is why Murdoch and his empire have invested so much in defaming Europe and pushing the idea suggesting the UK needs a referendum - because it's a threat to his control over our country.

      It's not perfect, the European Commission doesn't have at least the first two protections, meaning it is trivially lobbyable and controllable, but it still needs the support of the European parliament to succeed.

      Honestly, if there's one political institution in Europe that IS accountable to voters, it's the European Parliament precisely because there is little room for lobbyists to fiddle things or media to unduly influence the overall makeup of the parliament - it can corrupt small fractions of it, but that's not enough to change things.

  • by Greyfox (87712) on Wednesday September 26, 2012 @12:10AM (#41459999) Homepage Journal
    Wouldn't it be funny if they just ruled that ALL copying was illegal? Through like, a clerical error or something? No more copies of any work! Everyone would just have to read the one legal work in existence and then pass it around! The one guy with an iPhone COULD call the one guy with an Android, but he won't, because both guys think the other is a fanboi. There'd only be one Windows PC and one Apple PC, but they wouldn't be able to E-Mail each other because that would involve copying the message. Thousands of years of human progress, magically washed away! And after everything's settled down, you'd better hope that you get to be in the tribe of cavemen with the one allowed copy of fire! And... pants.
    • by wierd_w (1375923)

      No. You would have to exterminate *all* life on the planet to comply with such a law. Microbes copy themselves like clockwork. The dna in living things goes through a rythmic dance as cells divide, being copied as it goes...

      No, to fully enforce such a law, the earth will have to be made to resemble venus or mars. No living things, not even microbes, could be allowed to remain.

    • >Thousands of years of human progress, magically washed away! And after everything's settled down, you'd better hope that you get to be in the tribe of cavemen with the one allowed copy of fire! And... pants.

      Just so long as I'm not in the the tribe with the one allowed copy of skirts.

      I lol'd at your joke (hence my continuation) but do realize though that in practise pants (and skirts) would not be affected. Those have no laws over reproduction even today. You cannot copyright a fashion design, or patent

  • ... by making mere possession of any infringing copyrighted work an illegal act, much like possessing counterfeit currency is illegal. If the source material was infringing, then any copies made of it are also infringing. No ambiguity. Downloaders would thus obtain content from territories not subject to the same laws as the downloader entirely at their own risk. They either must be prepared to gamble that the site they are downloading from wouldn't be breaking the law if it was domestic, or else they

    • by Havenwar (867124)

      On the other hand say places like youtube, where there is plenty of infringing material and plenty of non-infringing material and no way for the regular person to tell them apart, would make your idea hugely problematic, and would lead to a vast amount of "accidental criminals". For example I regularly check out music videos on youtube. Some of them are put up by the artists, some by their labels, some by aggregating services like vevo or whatever their role is, and some by fans. Some of these aren't legall

      • >Some of them are put up by the artists, some by their labels, some by aggregating services like vevo or whatever their role is, and some by fans. Some of these aren't legally uploaded, other's are. It's not my place as a viewer to know the difference, because that would require me to actually read the contracts between each artist and their label and their distributor and so on...

        That's not even counting derivative work issues. Some are fair use, some are not. All affect copyright but only some are ille

      • by mark-t (151149)

        Warning.... a large block of text that may be subject to a tl;dr follows.

        On the other hand say places like youtube, where there is plenty of infringing material and plenty of non-infringing material and no way for the regular person to tell them apart, would make your idea hugely problematic, and would lead to a vast amount of "accidental criminals".

        This is true... but at least that's a plausible explanation that is likely to be believed. Youtube has a sufficient quantity of legit material that unless so

        • by Havenwar (867124)

          Well, we're of diametrically opposite opinions here, so there's no chance of finding common ground. I'd say however that our core disagreement stems not from any of the things you dove into, but in the very last paragraph. You claim these are border cases. I respectfully disagree. I think a reasonable view of the internet is that the majority of things you find there can not easily be determined whether it's legally reproduced or not. You speak about bordercases, I consider those cases to be the bulk of the

          • by mark-t (151149)

            The fact that it wouldn't be "normally punished" is not in any way a defense of the plan.

            Considering that's how the law ordinarily works in other circumstances that I was trying to draw analogy, I would disagree with that assessment.

            If you try to spend a counterfeit dollar bill that you thought was genuine, for instance, then you're not actually punished for pushing counterfeit currency, even though if you *HAD* known it was counterfeit, you would be guilty of a very serious crime. Ignorance of the law

            • by Havenwar (867124)

              The problem here still being that there would be more "fake currency" than "real currency". Your premise is still based on the idea that people have a reasonable expectation of being right more often than not, and that is just not the case. As it is you stand maybe what, a one in a million chance that the bill you accept is fake. Does it make you check it carefully? No, probably not, unless you have reason to do so. It's a reasonable expectation that people can spot the crudest of fakes easily, and that the

              • by mark-t (151149)

                I would argue that the only reason so much of the content on the internet is infringing right now is primarily *BECAUSE* there's no real consequences for people who download it, even while realizing its infringing origins. Or do you genuinely believe that most infringing content is downloaded without any realization whatsoever on the part of the downloader that the originator did not actually have any permission to distribute such copies?

                Because I don't. I believe most people quite readily recognize in

                • by Havenwar (867124)

                  You still haven't answered the question: How would a normal person find the status of the copyright of anything on the internet? Remember, this is NOT just about the latest movies and songs, your idea makes EVERYTHING illegal, tumblr, flickr, youtube, forwarded cat-mails, The pirated material coming from obviously pirated sources might be the bulk of actual internet traffic, but it's a fringe case in your argument since it is as you say pretty clear-cut. I'm not arguing that. If you go to the piratebay, mos

                  • by mark-t (151149)
                    I don't understand how....

                    The pirated material coming from obviously pirated sources might be the bulk of actual internet traffic

                    ... and ...

                    but it's a fringe case in your argument

                    are not entirely mutually exclusive. Either it's the bulk of actual piracy, or else it's not.

                    I was suggesting that it is, and that we wouldn't really have to worry about the ambiguous remainder, because if that ambiguous remainder was really all of the online piracy that there was, then I doubt that it would be seen to be a

    • Except that that doesn't work. I have, at home, numerous files of copyrighted material that are not freely distributed. As it happens, I have legally purchased them from people I believe had authorization to sell them. Many of these are straight digital downloads, unaccompanied by any paperwork (although I suppose the downloads could have included a license, I could fabricate one easily if I were dishonest). For some of these, I'm pretty sure that the places I bought them from still have records of the

      • by mark-t (151149)

        No... all it requires is that the authorities are able to identify where and when you are obtaining what content, to the extent that you've done so in the clear (which is most online infringement). If you downloaded infringing content, then you possess infringing content. Simple.

        Or... if you got it another way, sneakernet or what have you... that might not be observed by anybody else, but such distribution mechanisms do not scale like Internet distribution does, and could even push back piracy frequenc

        • by Havenwar (867124)

          Actually he makes a good point. I sure have a lot of digital media - legally purchased at some point in the past 15 years - which I have no record left of where I got it. In fact, in most cases I could not even point out what store I used, exactly. I could offer up best guesses, but since several of these outlets have since closed or been through multiple mergers, or simply thrown their data away since they don't need to store purchase data indefinitely, it would be impossible to prove that these are in fac

          • by mark-t (151149)
            You don't have to justify the content that's already *IN* your possession, any more than you might get a ticket for speeding last week when you weren't actually caught then (even if you were), just because at a random roadside drunk driving check, you happen to get pulled over while you are driving a sports car that is perhaps fairly well known for being driven like a racing vehicle on highways.
            • by Havenwar (867124)

              Actually since your argument was making POSSESSION illegal, You do indeed have to justify it.

              • by mark-t (151149)
                Yeah... except that if it's already *IN* your possession, then it can't necessarily be traced back to being obtained from infringing content in the first place. Whereas content that one is *IN* the process of acquiring can be.
                • by Havenwar (867124)

                  Exactly. Which is why making possession illegal is completely ridiculous. You're talking about making the acquiring of it illegal, and to my knowledge it already is in a lot of places. Possessing something is something you do from the moment you get it into your possession, to the moment you remove it from your possession. If you made possession illegal that would cover that entire time period.

                  • by mark-t (151149)

                    No.... possession could still be illegal. It's just that it may not be generally possible to verify that a law was ever even broken in the first place if the actual acquisition of the infringing material was not ever observed.

                    To draw a comparison to another law, its also illegal to simply possess stolen merchandise (although there is not any legal punishment if a person has reasonable grounds to claim they did not know it was stolen, but even then, they do still lose the merchandise, and that loss is a

                    • by Havenwar (867124)

                      Except the law you compare it with is about stolen property, where an object is lost for the owner and so can be returned. The law you propose is about intellectual property, where no loss has happened and so the item will simply be destroyed, at no gain to anyone.

                      Also, again, stolen property is a very small part of the property on the market. Meanwhile items with unclear copyright is the absolute majority of the content of the internet. I'm not saying strictly pirated things here, but things where a privat

                    • by mark-t (151149)

                      You know, even as I was writing my last comment up, I was thinking I might need to put some sort of disclaimer in there to note that I was simply drawing an analogy from another law... not that I was saying that copyright infringement was like stealing physical property. I had presumed it should be unnecessary... that the fact that I had even literally said that I was making comparison to another law should be enough for a reader to draw the conclusion that I meant what I was literally saying... and merel

                    • by Havenwar (867124)

                      But these encounters are about things they knew were wrong. I.e. stuff they got off piratebay, or so on. They would never even have considered mentioning the cat pictures or blog posts or youtube videos that they had no idea was infringing, or couldn't determine. They might have a vague idea that it COULD be infringing, or they might believe like I do that MOST of such material on the internet is indeed infringing on some copyright somewhere in the chain of jurisdictions it's going through.

                      You give the impr

  • Up to now it always has been legal to make download materials, as this is regarded equivalent with making a copy for private use. A right that has been well established in Dutch law for a long time. Earlier this year the House of Representatives concluded with a strong majority that this should remain legal. I think it is a rather unique situation that a Dutch lawyer is asking the European Court of Justice to judge about a Dutch law. This might have far reaching consequences, and could give rise to strong a
  • It must remain legal (Score:4, Interesting)

    by xenobyte (446878) on Wednesday September 26, 2012 @03:20AM (#41460905)

    In Denmark it has been legal for decades to make copies for personal use. You are even allowed to make copies of copy protected materials if you need to remove copy protection in order to play the material. We also have a "blank disk levy" to compensate for pirating.

    Now, as the Canadian Supreme Court ruled, if you pay to compensate for pirating you're allowed to pirate. So the levy works both ways - or it would be a tax benefiting private entities as opposed to the state, which is illegal in itself.

    As you pay the levy on the destination media regardless of the legality of the source material, you are of course also entitled to make copies of illegally downloaded materials. Now, the act of downloading is actually identical to making a copy for personal use, so that's actually legal if you paid the levy on the destination media. If this is ruled illegal, then the levy is illegal as well. You cannot force people to for something they don't get. Even taxes are payment for the services of the government. The levy is very specific and thus clearly illegal if downloading is illegal.

    • They levy in NL works a little differently.

      The levy is compensation for making a 'for personal use' copy of other media. It's not, however, the reason that downloading is legal; it's not because you purchase 1 (one) CD-R for $1 that the law says it's now okay to download 20 movies per month. Another part of the law out of touch with reality is what makes it legal.

      In addition, we have a levy on tapes, videotapes, CD-Rs and DVD-Rs (I don't recall if BD-Rs as well) but not on e.g. iPods, DVRs, loose HDDs and

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