[A2k] Italian Court: Downloading Music, Movies and Software OK if Not Profit-Motivated

[Andrea Glorioso]

Dear all,

please notice that:

(a) this sentence  refers to a fact  prior to  the introduction of the
    so-called "Urbani law"  (law  128/2004) which  changed  one of the
    conditions for  the act of  copying (among others) a work (without
    the authorization  of   the rightholder) to   be punishable  as  a
    criminal offense from  it being "a scopo di  lucro" to it being "a
    scopo di  profitto" - this latter comprises  a larger set of gains
    than the former, which consists in a direct  monetary gain.  Since
    the exchanges   were "gratis",  the  judges correctly  applied the
    *old* provisions    and  dismissed this   particular claim.   This
    condition   was later changed  back to  "a scopo di  lucro" by law
    43/2005, but again this happened after the facts.

(b) the whole case revolved around the administrators of an FTP server
    (quite ironically at the Politecnico di Torino, where I work - but
    I'm not involved in  the case, contrarily  to what some friends of
    mine have suggested :).   The administrators were  not (as  far as
    the judges  were   concerned)  directly involved  in   the act  of
    duplication and   therefore  the  relevant  provisions in  Italian
    copyright law were not deemed applicable.   Maybe the judges could
    have applied the provisions of our criminal code on being party to
    a crime, but as  far as I understood  this was never brought up by
    the lower courts (and thus the Corte di Cassazione did not have to
    discuss the provisions other than in the "obiter dicta").

Please notice  that the concept of  "profitto" and "lucro"  (which you
might both translate in English as "profit")  are clearly different in
Italian law.

I would  say that this  sentence - which I  summarized in order not to
bore you with the tiny details of Italy's copyright law, which besides
being   quite  complex  has  been   subject  to   a  large  number  of
modifications in   the past few years   - doesn't change  anything for
anybody,  notwithstanding the    very sensationalistic   coverage   it
received.

The only thing that, in my  personal opinion, is particularly relevant
is the   passage of the  decision  where  the judges  of  the Corte di
Cassazione wrote (rough translation):

  "On this matter [...] we notice that the different terms used by the
   lawmaker in  art.  171bis and 171ter  of  law 633/41  are not aimed
   exclusively at guaranteeing a better protection for copyright [...]
   but also at  achieving the goal  of  balancing the above  mentioned
   protection with the circulation of  creative works as an instrument
   of social and cultural progress"

I think that the last part could have hardly  been found in a sentence
of  the Italian Corte di Cassazione  until not so many years (months?)
ago.

Best,

Andrea

>>>>> "Jeff" == Jeff Williams <jwkckid1@ix.netcom.com> writes:

    > All, This is really rich...

    > See: http://www.msnbc.msn.com/id/16756121/

    > "(22 January 2007) An Italian court has ruled that downloading
    > is permissible if it is not motivated by profit.  The ruling
    > overturns the convictions of two former

    > students who had set up a peer-to-peer network in 1994.
    > Analysts observed that while downloading may no longer be
    > illegal, the ruling does not decriminalize copyright
    > violations."

    > Notes of interest related:

    > If downloading is motivated by avoiding paying for a product,
    > that seems profit motivated to me. When I shoplift, I can get
    > arrested even if they can't prove I intended to resell what I
    > stole.

    > I hope the Italian judges wouldn't mind if someone "borrowed"
    > their stuff. As long as it's not profit-motivated, it's OK,
    > right?

    > Now, things are moving very fast on the intellectual property
    > rights front in Europe, but I have to wonder if they truly
    > understand the genie is not going back in the bottle one they
    > let him out. Earlier Grefer reported
    > http://www.lexexakt.de/eartikel.php?datname=neues/message0133.xml

    > On January 2, 2007 NewsBites carried a story on a landmark
    > decision in France limiting the rights of copyright holders to
    > track down pirates:
    > http://www.iht.com/articles/2006/12/21/business/privacy.php And
    > Peter Giannoulis sent me this link saying that Pirates Cove
    > wants to buy their own island so they can serve up copyrighted
    > goods with impunity: http://www.thelocal.se/6076/20070112/

    > Regards,

    > -- Jeffrey A. Williams Spokesman for INEGroup LLA. - (Over 134k
    > members/stakeholders strong!)  "Obedience of the law is the
    > greatest freedom" - Abraham Lincoln

    > "Credit should go with the performance of duty and not with what
    > is very often the accident of glory" - Theodore Roosevelt

    > "If the probability be called P; the injury, L; and the burden,
    > B; liability depends upon whether B is less than L multiplied by
    > P: i.e., whether B is less than PL."  United States v. Carroll
    > Towing (159 F.2d 169 [2d Cir. 1947]
    > ===============================================================
    > Updated 1/26/04 CSO/DIR. Internet Network Eng. SR. Eng. Network
    > data security IDNS. div. of Information Network Eng.  INEG. INC.
    > ABA member in good standing member ID 01257402 E-Mail
    > jwkckid1@ix.netcom.com Registered Email addr with the USPS
    > Contact Number: 214-244-4827


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--
      Andrea Glorioso || http://people.digitalpolicy.it/sama/cv/
          M: +39 348 921 4379	     F: +39 051 930 31 133
       "Truth is a relationship between a theory and the world;
       beauty is a relationship between a theory and the mind."