Little-noticed language in a European Union plan to crack down on organized piracy could also make indirect copyright infringement a crime across Europe, with implications similar to the recent MGM v. Grokster U.S. Supreme Court ruling, experts say.
A directive being pushed by the European Commission would, among other things, criminalize “attempting, aiding or abetting and inciting” acts of copyright infringement. The EU parliament will take up the proposal later this year.
Like the Grokster ruling, the scope of the proposal (.pdf) reaches beyond the act of downloading or uploading copyright video, music or software files and makes supporting copyright infringement illegal. If the directive is adopted, software used primarily for illegal file sharing, for example, could potentially make its developers criminally liable in one or several EU member countries.
“The problem here is some activities, such as the creation of software, can be used for legal and illegal purposes, as is the case with Grokster,” says Urs Gasser, professor of law at the University of St. Gallen in Switzerland and a fellow at the Berkman Center for Internet and Society at Harvard Law School. “It gets really messy, because it is unclear what is legal or not legal, and it is problematic to operate with such abstract terms.”
Echoing fears voiced in the United States after the Grokster ruling, Gasser says the directive could stifle innovation, as software and IT firms may fear developing technologies that might later be adopted by pirates.
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