New Euro law could make criminals of us all

Welcome, European citizen, to a new world of criminality -- a world where you're the star. The IP Enforcement Directive, a proposed new law from the EU, has been attracting some attention from the usual quarters. In particular, the sainted Ross Anderson of Cambridge University has rolled out a masterly analysis of the threat to many of our accepted civil liberties and commercial freedoms. Yet even a cursory readthrough reveals much to be worried about. 

The proposal is a hefty document with no shortage of long sentences. A third of the way through the 54 pages, we've learned that piracy and counterfeiting is bad and that different states have different ways of dealing with it -- also bad. So far, who's arguing? But the solution proposed is to criminalise many civil infringements and to back that up with thudding great powers spring-loaded in favour of the big guys.

By page 20, we're into the meat. Impressed by the UK's Anton Pillar orders -- where your premises can be searched and documents and computers seized without warning -- the proposal seeks to make this a standard European-wide process for intellectual property rights infringements. This is to be backed by freezing of bank accounts and other assets. You can do this now in the UK and many states with legislation based on English law, but it's a fairly rare procedure. Making it the backbone of new law will widen its scope tremendously: you only have to look at the way the RIAA in the US is throwing everything into all-out legal war with its customers to imagine how certain people would behave with this arrow in their quiver.

The really nasty bit comes in Article 21, which creates legal protection for ‘technical systems' intended to protect and authenticate products. That's stuff like the hologram on your credit card and Microsoft licence document, and things like RFID tags. The protection for these systems includes outright bans on the creation, selling and use of equipment that can interfere with their operation -- either by letting you clone the authentication devices, or blocking their use. As with the American Digital Millennium Copyright Act (DMCA), this can be extended to the act of analysing how the systems work.

It's hard to over-emphasise how much power this will give to established manufacturers, and how difficult it will be for anyone to compete in their spheres of influence. Ask yourself whether DVD region locks and smart ink-jet cartridges have been used to benefit the consumer, or whether they've been used to keep prices up and choice down: now, imagine the same power of control being given to any manufactured goods. 

You want to change the tyres on your 2006 model Ford Prefect? Anything other than genuine Ford tyres -- with the genuine Ford ID chip -- will disable your car. Your Sony MP3-playing nasal hair trimmer will only work with genuine Sony batteries: don't even think about trying to make alternatives, because that'll make you a criminal. And no, you can't buy those jeans -- the RFID chip in the label says they're only for sale in America. By the way, the same RFID chips on the clothes you are allowed to buy may well be radiating all manner of things about your location: you're not allowed to find out for yourself, as possession of an unlicensed receiver is a criminal act.

This wholesale criminalisation of anything that might be at risk of contravening IPR goes deep. If you go busking and play a Beatles song, you should pay a few pence to whoever owns the rights: it's impracticable and pointless, and however much you may be in pain from yet another awful warbling of Yesterday nobody suffers from the minor civil infringement of the rules. In the brave new world of the Directive, singing that song in public with your hat on the floor would be a crime, if you didn't pay the dues. You can imagine how much the police are going to enjoy having to cope with that.

By effectively conflating counterfeiting and piracy and criminalising large rafts of IP abuse, the proposal creates legal weaponry of extraordinary power and range while making targets of us all. The FAQ issued with the proposal touches on this, claiming that proportionality -- making the punishment fit the crime -- is part of the plan. But this appears to be left to the companies concerned: the FAQ stating piously that “it is not in the interest of rightholders to spend a lot of time and money in litigation to catch offenders who are simply sharing a few files with a handful of friends,” for example. Yeah, tell that to the Americans.

And we know how companies love to use anything in their power to block the open market and extract as much money from us as possible. They have to -- it's called maximising return on investment, and it's quite possible that any company that doesn't use the new law to its fullest extent will be open to legal action from its shareholders. The fiat of big business runs all the way through the directive. They have the power, the motivation and the money to lobby intensively at the highest level for their own benefit, while the consumers and citizens of the EU are individuals, unorganised, unaware and unmotivated.

The EU, like any government, has a duty to balance the powers and rights of individuals and companies in order to promote the best environment for us all. In the case of this directive, it is not doing its job. The directive goes before the European Parliament on 11 September -- a masterpiece of timing for a controversial measure -- so if you care, make sure your MEP knows what's going on and what you think about it.  All property may not be theft, but on this basis intellectual property is verging on thought crime.