European ISPs: “Aiding and abetting” copyright violations could land our CEOs in jail

European legislation that would criminalize commercial copyright violations has now made its way through the various and sundry committees of the European Parliament and is ready for a vote by the full parliament within the next two weeks. If adopted, IPRED2 would mark a major shift in EU intellectual property law, which has previously treated copyright violation as a civil offense with corresponding civil penalties (normally fines and injunctions). If passed, dirty pirates could be thrown in the brig.

Which wouldn't be that big of a deal if this were just about easily-defined "dirty pirates." The problem here is twofold. One issue is that many copyright cases involved legitimate businesses, not pirates cranking out bootleg DVDs to sell on street corners. Should executives of firms like Google or YouTube be thrown in jail if some new service of theirs is found to be infringing someone else's copyright? Many EU lawyers argue "no." These sorts of cases arise all the time in the course of business, and have generally been handled by civil proceedings.

The other issue is that the law also criminalizes "aiding or abetting and inciting such infringements," and this language is ambiguous enough to worry plenty of watchdog groups. We reported last month that ISPs are concerned that they could be liable for "abetting" infringement by allowing users to run P2P applications or access web sites like AllofMP3.com. The terms could be construed in a wide variety of ways, and content holders will surely push for the broadest possible interpretation.

Resistance to IPRED2 has been varied. The two branches of the Dutch States-General issued objections (Word document) last year, arguing that the EU lacked the authority to pass such a law and that civil penalties would work better.

"The two Houses take the view that violations of intellectual property rights cannot be treated as such a serious violation of the policy field to be protected that the harmonized deployment of criminal law measures must be considered essential in the battle against these violations," says the report. The wording is a bit awkward, but the idea comes through loud and clear: this simply isn't necessary.

The UK's Law Society issued its own set of objections (PDF) to IPRED2 and made some of the same points. "We are concerned that the introduction of broad criminal sanctions might upset the balance that exists between the use of civil and criminal proceedings," said the group. They urged that criminal penalties be reserved for counterfeiting and piracy only.

The EFF's European branch has also waded into the fray, launching a CopyCrime web site and encouraging users to sign its petition.

Fortunately, the bill was amended by JURI, the powerful European Parliament legal committee, during proceedings last month, and many of the objections put forward by these groups have already been addressed. For instance, the bill now would exclude "acts carried out by private users for personal and not for profits purposes" and fair use exceptions to national laws are required. The phrase "in the context of counterfeiting and piracy" was even included in Article 1 of the bill, as the Law Society hoped.

Still, some activists are worried about the broader application of criminal penalties to copyright law and have continued to call for amendments to the bill. These could be added up until the vote is actually taken, which is expected before the end of April.