[FYI] (Fwd) FC: Where anti-piracy goes too far: A disturbing law in Italy

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Wed, 21 Feb 2001 13:50:21 -0500
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Where anti-piracy goes too far: A disturbing law in Italy
Copies to:      	paci@debian.org, giannibi@firenze.linux.it,
	claudioc@firenze.linux.it
Send reply to:  	declan@well.com

Excerpt: "As a consequence, possession of computer programs on 
non-[official]-stamped medium, either legally or illegally, may lead
to a prison sentence." So much for open-source software, eh? Thanks to
Andy Oram for forwarding this.

-Declan

********

http://www.softwarelibero.it/docs/siae-en.shtml

                           The Italian law 248/2000:
                      a menace to software professionals

                         Associazione Software Libero

                                February 2001

Abstract

    This document deals with the problems arising from an amendment to
    Italian copyright law (September, 2000), which in addition to
    going against a subsequent European Community recommendation
    (February, 2001), poses a potentially serious threat to the
    activities of independent software developers and makes it
    difficult to legally distribute free software in Italy.

    Please send any comments to mailto:<info@softwarelibero.it>.

Introduction

    The Italian Parliament recently approved an amendment to copyright
    law. The new rules have been in force since September 18, 2000 as
    law 248/2000. The new mechanism is as yet unclear, but we suspect
    that it might hinder or even put a stop to the work of anyone
    producing software or using it in their business. The main problem
    of the law lies in the requirement for a compulsory stamp (the
    "bollino SIAE") on any physical medium containing computer
    programs (Art 181-bis, 1). This requirement adds to previous rules
    that consider any unauthorised copying of computer software a
    criminal offence (rather than simply a civil offence). As a
    consequence, possession of computer programs on non-stamped
    medium, either legally or illegally, may lead to a prison
    sentence.

    The scope of the new law is not limited to software, and can also
    be damaging to other spheres of personal freedom. We will
    concentrate here on the issues of computer programs, as we
    consider them the most serious. It has been observed that the law,
    in fact, introduces a sort of tax on freely distributable
    software. We think that these concerns are valid, but the problem
    as we see it is much more serious.

    Since we were not able to find any substantial commentary on this
    law on the net, we made our own research, by interviewing SIAE
    officers, Guardia di Finanza, Postal and Telecommunications
    Police, magistrates and copyright lawyers.

When the stamp is needed

    Our sources, while sometimes agreeing on the injustice of the law,
    concur that the possession of any computer program on medium not
    marked with the SIAE stamp constitutes a crime in accordance with
    article 171-bis:

      Whoever intends to make a profit ...for commercial or business
      purposes, from the use of ...computer programs contained on a
      medium not bearing the SIAE stamp, is subject to a penalty of
      imprisonment from six months up to three years and to a fine
      from 2500 to 15000 Euros.

    According to this article, anyone using a computer program for
    business reasons, and whose medium is not marked with the SIAE
    stamp is committing a crime.

    When importing software from abroad, in order to promptly apply
    the stamp, the importer must notify the SIAE in advance about the
    entrance of the goods into state territory (Art. 181-bis, comma 6)
    As the importer is identified as the buyer, the need for the stamp
    applies even when an individual buys software from abroad for
    business use. A SIAE officer in Rome commented: "theres no problem
    if you import a game on CD, but if it's for use it in your
    business you must have it stamped".

    Since the law clearly states that the stamp is applied for the
    sole purpose of protecting rights related to intellectual works
    (Art 181-bis, comma 2), one would ask: "what if you are the author
    of the programs you own?". The answer, from almost all of our
    sources, is that "the medium must be marked if it is used for
    profit, regardless of whether the profit comes from the future
    commercialisation of the software, or for purposes otherwise
    related to one's work".

What is written on the stamp and how to obtain it

    The SIAE stamp must contain enough information to identify the
    title of the work for which it has been requested and the name of
    the author, publisher, producer or copyright holder (Art 181-bis,
    comma 5). You can apply for the stamp in the main SIAE offices. We
    don't know as yet exactly which offices are authorised to issue
    the stamp: when we asked a local SIAE office, the officer stated
    that only Rome, Milan and Naples are authorised, but we verified
    that they can also be obtained in Florence. In any case, asking a
    local office is no good (to us, the officer replied: "its not our
    job to know, all I know is only out of personal interest"). Nor
    does the web site http://www.siae.it/ offer any help, as you
    always end up at the same "work in progress" page (hits made on
    January 21, 2001).

    In practice, in order to obtain the stamps, you should go to one
    of the authorised offices, fill out a host of forms only available
    at the office premises, pay the dues, and come back after one to
    three weeks in order to get your coveted little adhesive rectangle
    of legality. Naturally this procedure is required for each and
    every medium owned or imported (to enable identification of the
    title ...).

Definition of "medium"

    To identify the scope of the law, we tried to get a fuller
    explanation of just how "medium" is interpreted. A SIAE officer in
    Rome affirms that "medium" is the CD or the floppy disk, thus
    excluding the hard disk "for obvious practical reasons". He
    explicitly admitted that a software consultant may travel with a
    hard disk in his pocket, but not a CD or a floppy disk (yet
    denying to sign a declaration to that effect). As we expected,
    both the magistrate and the lawyer with whom we spoke refused to
    consider the hard disk as different from other mediums. They even
    suggested that software consultants carrying their own laptop for
    use on the client's premises should apply a SIAE stamp on the
    laptop itself.

    In fact, the SIAE interpretation is not unreasonable: a hard disk
    contains hundreds of programs. For example, we run GNU/Linux on
    our computers, and there are over 800 software packages installed
    on each of them. Identification may be more straightforward for a
    proprietary operating system, but no one working with a computer
    has less than 10-20 programs installed on his machine. Because of
    that, the identification of the "title and author" of each and
    every program on a single stamp is just not feasible; even the
    idea of applying tens of hundreds of stamps on one product is not
    conceivable given the highly dynamic contents of a disk. A hard
    disk shares the same problem as a CD regarding the high number of
    programs, and has the same problems as a floppy with regard to
    dynamic contents, so in fact the "practical reasons" invoked by
    the SIAE officer should not be applied to hard disks alone.

    In principle, paper medium could be affected too. When a program
    is written in an interpreted language, distribution "for profit"
    is possible on paper, slide or transparency. For example, it is
    common practice for a software consultant when teaching courses,
    to distribute and comment on a complete source (a couple of pages,
    often less) of a functioning program which is effectively usable.
    Every demo program distributed on a magazine or during a paid
    course (i.e. "for profit") apparently requires the SIAE stamp,
    under penalty of seizure of the unstamped material and
    imprisonment (Art. 171-bis, comma 1). To date, we have not
    collected legal opinions on the applicability to paper medium.

Definition of "computer program"

    The main problem with the new law lies in the use of the term
    "computer program", not defined by the law itself nor by any other
    legal standard. These words have a sound meaning when dealing with
    intellectual works, because computer programs are generally
    protected by copyright just like any musical or literary work.
    However, the program (an abstract entity) has to be given material
    dimensions to enable the application of a stamp.

    This law has obviously been written with the blinkered attitude,
    where "program" means "a very expensive CD, printed for mass
    market distribution and not legally reproducible". Only this sort
    of reasoning could justify the requirement for stamp application
    on "all mediums", given the difficulty of obtaining it. But freely
    redistributable programs do in fact exist: for example programs
    written for internal use in companies, which are repeatedly
    duplicated, programs used in computer courses, or free software
    programs, such as all the components of a GNU/Linux system. Also,
    programs exist which are "small", much smaller than the stamp
    itself. Some of the programs that we use in our everyday work are
    a few kilobytes long, even few lines of text, and many common
    utilities are small, like the popular Pkzip program. There are a
    number of programs that can be freely downloaded from the Internet
    to a user's hard disk; but this is a crime according to the new
    law.

    The members of Parliament who approved the law admit that it was
    born under the pressure of strong lobbying by big software
    companies, intentionally ignoring -- and as a consequence making
    them illegal -- all programs and mediums that are not distributed
    through the usual commercial distribution channels. The official
    excuse is that programmers, in order to earn what they deserve,
    need to be protected from the illegal copying of software for
    personal use. However, the lobbyists that pushed the law are the
    very same software companies who recently issued a TV advert,
    almost disguised as public information, where the act of copying a
    computer program is depicted as one of the worst crimes out. This
    spot was later condemned as misleading and its further diffusion
    prohibited.

    Non-profit use of programs does not require the stamp; however,
    several actions can be defined as "profit-making". The SIAE
    officer in Florence declares that free distribution of a demo is
    for profit, and thus requires application for the stamps. It may
    be conceivable that using a computer for browsing the web can be
    considered for profit, since it enables access to information
    useful for one's own work. So have we reached the point where even
    use of a network browser will require a stamp?

Conclusions

    The mechanisms introduced by the new copyright law have the
    potential of paralysing or criminalising any conceivable business
    that uses computer programs. Compliance with the law in this
    respect is especially difficult. Law 248/2000 was intended as a
    stand against software piracy, but it now risks damaging the very
    authors it claims to protect. Independent programmers will incur
    unreasonable expenses and difficulties that will hinder their
    freedom of expression, while established software companies will
    have the chance of increasing their near monopolistic grip on
    users. The police have the right to inspect your office and seize
    material even if nobody has sued you for infringement, as the
    order of a judge is sufficient to take actions for this crime. It
    is not unlikely that Police forces will set up a nation-wide
    round-up in the future, to spread uncertainty and force literal
    application of the law to prevent further such crime.

    Independent software businesses are the most damaged by
    application of the new law. We claim that its application should
    be suspended until its effects are seriously studied and a new law
    be written. The focus of the law should be the good of society at
    large, rather than the mere income of big software companies.

    Verbatim copy and distribution of this document, in any medium, is
    permitted and encouraged.




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