<nettime> The software lock-down

[Andy Oram <andyo@oreilly.com>]

[forwarded to nettime by t byfield <tbyfield@panix.com>]


I doubt this law will stand, but it is a clear sign of what powerful
commercial interests want and may impose on us.

Andy

-------

                          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.

----- Backwarded

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