Italian Supreme court decision on file-sharing case – nothing new

By EDRi · January 31, 2007

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

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. In time this might indicate a shift in the public opinion,
and even some hope that legislators and legal courts will be more aware of
the problem. But it would be exaggeratedly optimistic to expect any truly
relevant changes in the next few years.

The decision by Italy’s Corte di Cassazione (“Supreme Court”) that was
published on 9 January 2007 concerned one specific eight-year old case,
which 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 behaviour was not judged by the Cassazione to be “criminal” (while it
remains a “civil” offence that can be pursued for alleged “damages”).

A hideous peculiarity in the 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” offence. 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,
which was reported internationally as “the largest police seizure of
bulletin board systems in world history” . That case 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 “profit” is generated by
unauthorized selling or trading of copyrighted materials, while personal use
(even for work) cannot be considered a criminal offence. 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
that 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 scaring 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.

Italian courts have not “ruled not-for-profit file-sharing legal”

ALCEI press release Jan. 30, 2007

Italy’s Corte di Cassazione decision (only in Italian, 9.01.2007)

Cass. Sez. III penale – Sent. 149/07

(Thanks to EDRI-member ALCEI – Italy)