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File sharing in Italy: profit or non-profit?

From ALCEI - Electronic Frontiers Italy (www.alcei.org)

There has been wide reporting, in Italy and internationally, that an Italian court "ruled not-for-profit file-sharing legal". That statement is grossly overstated, if not completely wrong. The (dismal) state of
Italian "copyright" legislation remains, unfortunately, unchanged.

One might argue that the media hype, per se, is an indicator of wider awareness of how overly strict copyright laws and rules stand in the way of free expression. That, maybe, over time could indicate a shift in public opinion, and even some hope that legislators and legal courts may be more aware of the problem. But it would be exaggeratedly optimistic to expect any really relevant changes in the next few years.

The decision by Italy's Corte di Cassazione ("supreme court") that was published on January 9, 2007 http://www.ictlex.net/?p=565 concerned one specific case, eight years old -- it happened in 1999, when two students in Turin made some copyrighted materials available for download on a University bulletin board. They were acquitted because they didn't gain any money by doing so, and therefore their behavior was not judged by the Cassazione to be "criminal" (while it remains a "civil" offense that can be pursued for alleged "damage").

Before we get into the specifics, this needs a bit of background. (There were several ALCEI http://www.alcei.it statements on this subject in past years).

A hideous peculiarity in Italian law (unfortunately replicated in other countries) defines the use of unlicensed software, or the unauthorized copying or sharing of text, music, video etc, as a "criminal" offense. This has led to countless abuses, including seizures of computers and servers, website blackouts, and prosecution of people who were not guilty of any crime -- including the famous (infamous) "Italian crackdown" in May, 1994, that was reported internationally as "the largest police seizure of bulletin board systems in world history" (it was not based on censorship, or on any suspected crime, but on the alleged use of unregistered software).

The law states that copyright "violations" are to be treated as "criminal" if and when they are "for profit" ("a scopo di lucro". A landmark decision by a judge in Cagliari in 1996 established that "lucro" is generated by unauthorized selling or trading of copyrighted materials, while personal use (even if for work) can not be considered a "criminal" offense. Later legislation, obviously inspired by major industry lobbies, counteracted that decision by changing the law to define "profit" as any kind of advantage, including the savings gained by not paying for copyrighted materials, or any other personal "satisfaction".

The recent Cassazione ruling is somewhat similar to the Cagliari decision in 1996. It is based on the state of the law as it was in year 2000, when that particular case was started, before the changes that are now in force and make personal use "criminal".

(Of course it is practically impossible to take all the assumed "violations" to court. The instigators of the legislation are counting on a "scare" effect by aggressively persecuting a few people. In that sense, this widely publicized case could be seen as a momentary setback for the lobbies' propaganda).

The real effect (if any) of this in the practice of law will be impossible to measure until new cases come to court after the recent Cassazione decision. And, with the notorious slowness of Italian legal procedures, that may take several years. As things stand now, it seems unlikely that there will be any real improvement.

So the hype, in a way, may be welcome, because it exposes the problem. But it is wrong to report, or assume, that there is any improvement in the state of the law, and its effects, in Italy. That could even lead to "complacency" by believing that the problem is solved, while legislation needs to be substantially changed to really make it a bit more reasonable.

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